
    Colomon Kortwellyeszsy, Respondent, v. Manhattan Cooperage Company and Samuel Aronson, Defendants, Impleaded with Henry Leibowitz, Appellant.
    Second Department,
    May 8, 1914.
    Court — County Court —jurisdiction — non-resident defendant jointly liable upon contract.
    The County Court has no jurisdiction of an action against several defendants, alleged to be jointly liable upon a contract, unless all of them are residents of the county at the time the action is commenced.
    Where the defendants, as treasurer and president of a corporation, promised “ for ourselves ” and for the corporation to pay certain commissions, the liability is joint, not joint and several, as would be the case if the words “for each of us” had been used.
    Appeal by the defendant, Henry Leibowitz, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1913, denying the said defendant’s motion for a new trial made upon the minutes.
    
      William Austin Moore, for the appellant.
    
      J. Clifford McChristie [Mirabeau L. Towns with him on the brief], for the respondent.
   Putnam, J.:

This action was brought upon a written contract in favor of the plaintiff, by which defendants Aronson and Leibowitz, representing the Manhattan Cooperage Company, “ do hereby agree, and promise, for ourselves, and for the said Manhattan Cooperage Company, its successors, heirs and executors,” to pay unto the plaintiff a certain commission on merchandise sold by the Manhattan Cooperage Company to the New York Tanning Extract Company. This instrument was signed:

“SAMUEL ARONSON [seal]

Treas.

“HENRY LEIBOWITZ [seal

“Pres.”

Plaintiff brought his action. against the two signers individually, and the Manhattan Cooperage Company. The three defendants answered. Defendant „ Aronson by his answer denied the allegation that he resided within the county. Proof was given as to the sales upon which commissi oris were computed. The testimony having shown Aronson to be a nonresident of the county the court dismissed the complaint as to him, and also as against the Manhattan Cooperage Company, but submitted to the jury the liability of Leibowitz alone, against whom a verdict was rendered.

Defendants urged below, and insist on this appeal, that since all the defendants were not residents of Kings county the County Court never had jurisdiction.

County Courts are of limited jurisdiction. Their powers have been restricted by the prior Constitutions of 1846 and 1867. (1 Lincoln Const. Hist. N. Y. 255; 2 id. 142, 153, 157; 3 id. 360, 373.) By the present Constitution they have “original jurisdiction in actions for the recovery of money only, where the defendants reside in the county, and in which the complaint demands judgment for a sum not exceeding two thousand dollars,” but that “The Legislature may hereafter enlarge or restrict the jurisdiction of the County Courts, provided, however, that their jurisdiction shall not be so extended as to authorize an actions therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant.” (Art. 6, § 14.) Section 340, subdivisions, of the Code of Civil Procedure provides that the County Court’s jurisdiction extends “to an action for any other cause, where the defendant is, or if there are two or more defendants, where all of them are, at the time of the commencement of the action, residents of the county.”

If more than one defendant, all are to be residents of the county at the beginning of the action. (Burckle v. Eckhart, 3 N. Y. 132; Frees v. Ford, 6 id. 176.)

Respondent contends that although the County Court had no jurisdiction over the non-resident defendants, it did have over the resident defendants. However, the Constitution does not say that if a separate judgment may be rendered against several defendants, a County Court may give judgment against those who reside within the county. On the contrary, it expressly provides that all the defendants must be residents of the county in which the action is brought.

Thus Vann, J., so interpreted the Code provisions which “make the jurisdiction of County Courts depend upon the residence of the defendant, or the defendants, when there are more than one.” (Maisch v. City of New York, 193 N. Y. 460, 463.)

The county judge below followed Weidman v. Sibley (16 App. Div. 616), decided by a divided court in 1897, soon after the new Constitution took effect. Being an action of tort the plaintiff having a several liability could drop out the partners who had left the State. Here the liability is joint, as the words “for ourselves” do not make it joint and several, as would the words “for each of us.” The Leibowitz liability was so joined with that of Aronson that to drop out Aronson, cutting off the remedy by contribution, was essentially different from striking out some of the tort feasors, between whom there was not, as in the case at bar, any right of contribution. (See, also, Worthington v. London Guarantee Co., 47 App. Div. 611; Dakin v. Elmore, 68 Misc. Rep. 425.)

Considering the history of the County Courts in this State, with the limits placed on them in three successive Constitutions, it is manifest that all the defendants proceeded against must be residents of the county, as a condition of any juristion by the County Court.

I, therefore, advise that, as this action was not properly begun, the court did not acquire jurisdiction; that the judgment and order of the County Court be reversed and final judgment rendered dismissing the complaint.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment and order of the County Court of Kings county reversed, and final judgment rendered dismissing the complaint.  