
    (68 Misc. Rep. 428.)
    DAKIN v. ELMORE et al.
    (Schenectady County Court.
    July, 1910.)
    New Trial (§ 68)—Grounds—Failure to Show Jurisdiction.
    Under Code Civ. Proc. § 840, subd. 3, providing that a county court has jurisdiction oí an action where the defendant is, or, if there are two- or more defendants, where all of them are, residents of the county, etc., where there was a denial of the allegation that defendants were such residents, and the proof failed to show that such was the fact, a verdict for plaintiff will be set aside.
    [Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 135-140; Dec. Dig. § 68.*]
    Action by John H. Dakin against Mike Elmore and another. Verdict for plaintiff. On motion by defendants for a new trial.
    Granted.
    See, also, 127 App. Div. 457, 111 N. Y. Supp. 519.
    
      Fenwick & De Voe, for plaintiff.
    Fryer & Lewis, for defendants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes.
    
   WHITMYER, J.

This action was brought to recover damages for •an alleged conversion of certain fine rollers and other tools. The complaint alleges that defendants are residents of the county of Schenectady, and demands judgment in the sum of $583. The answer is a general denial.

The evidence fails to show that defendants were residents of the ■county at the time of the commencement of the action. In fact, the •evidence, if it shows anything, shows that they were nonresidents at that time. A motion was made by defendants at the close of plaintiff’s case, and again at the close of all the testimony, that the complaint be dismissed, on the ground, among others, that the evidence failed to show that defendants were residents of the county at the time of the commencement of the action. Decision of the motions was reserved, pending the determination by the jury of the other questions in the case. The verdict was for $50. Defendants moved, upon the coming in of the jury, to set the verdict aside and for a new trial on the several grounds specified in section 999 of the Code of Civil Procedure, and decision of such motion was also reserved.

Plaintiff claims that defendants have waived the defense of non-residence. County Courts are courts of limited jurisdiction. The Constitution (article 6, § 14) says that they shall have original jurisdiction in actions for the recovery of money only where the defendant resides in the county and in which the complaint demands judgment for a sum not exceeding $2,000, but that the Legislature may enlarge or restrict this jurisdiction, provided that it shall not be so extended •as to authorize an action therein for the recovery of money only in which the sum demanded exceeds $2,000 or in which any person not a resident of the county is a defendant. The Code of Civil Procedure (section 340, subd. 3) provides that such jurisdiction shall extend, among other things, “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, and wherein the complaint demands judgment for a sum of money only, not exceeding two thousand dollars.” It is clear from these provisions that a County Court can only acquire jurisdiction of an action for a sum of money only where the amount demanded does not exceed the sum of $2,000 and the defendant is a resident, or all of the defendants are residents, at the time of the commencement of the action, of the county where the action is brought.

The residence of á defendant, at the time of the commencement of such an action, in the county where the same is brought, is a fact which must exist before the County Court of such county can acquire jurisdiction of the action. It is a limitation placed upon the jurisdiction of the court, and not upon the parties. As a jurisdictional fact, the court being one of limited jurisdiction, it must appear affirmatively, and cannot be waived. Burckle v. Eckhart, 3 N. Y. 133; Frees v. Ford, 6 N. Y. 176; Worthington v. London Guarantee & Acc. Co., 47 App. Div. 611, 62 N. Y. Supp. 591; Perlman v. Gunn, 41 Misc. Rep. 168, 83 N. Y. Supp. 986.

In Burckle v. Eckhart, supra, it is said:

“The residence of a defendant within the limits of the circuit * * * is a jurisdictional fact, which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person. In such case there' can be no waiver.”

In Frees v. Ford, supra, it was held that, upon an appeal from a judgment of a court of inferior jurisdiction, if it did not affirmatively appear that the court had jurisdiction, the judgment must be reversed. And the consent of a nonresident defendant 'will not avail to confer jurisdiction. “Consent may give jurisdiction of the person, but not of the subject-matter, nor of the action.” Parkhurst v. Rochester L. Machine Co., 65 Hun, 490, 20 N. Y. Supp. 396; Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y. 526; Weidman v. Sibley, 16 App. Div. 616, 44 N. Y. Supp. 1057.

In the Davidsburgh Case, supra, Judge Danforth says:

“There are, no doubt, many cases where the court, having jurisdiction over the subject-matter, may proceed against a defendant who voluntarily submits, to its decision; but, where the state prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants.”

In the Weidman Case, supra, it was said:

“While, in courts of general jurisdiction, an appearance in an action by a nonresident defendant, not served with process, may waive jurisdiction as to his person, it is not so with courts of limited jurisdiction.”

And Judge Follett, in his opinion in that case, says:

“If all the parties to an action in a County Court should sign an agreement that the court might try and determine an action in which all or some of the defendants were not residents of the county, * * * it would not confer jurisdiction.”

It is true that the cases of Bunker v. Langs, 76 Hun, 543, 28 N. Y. Supp. 210, and Dake v. Miller, 15 Hun, 356, cited by plaintiff, seem to hold that the defense of nonresidence may be waived. But Judge Rumsey, commenting upon them in the Worthington Case, supra, says:

“If these cases may be construed as holding that because the defendant, being a nonresident, failed to take his objection to the jurisdiction of the court, he was therefore precluded from insisting upon it, and the court had' jurisdiction, although the nonresidence afterwards appeared, we do not think they can be sustained, in view of the cáse of Burckle v. Eckhart, supra.

It seems, therefore, that a judgment for plaintiff in this court will be void. The motions of defendants are granted.

Motions granted.  