
    James J. Hogan, Appellant, v. Max Glueck, Respondent.
    
      -Complaint—amendment thereof stating the defendant’s reddence—presumption, as to the continued residence of a person in the same place. - (
    In an action brought in the City Court of Yonkers the" complaint failed to. state that the defendant was a resident of the city of Yonkers, which fact was essential to the court's jurisdiction, but the case was tried upon the theory that the defendant was a resident, and evidence was given which clearly showed that the. defendant, at the. time of the commission of the alleged offense on August twenty-eighth, lived in the building in Yonkers where the offense, which was the basis of this action for malicious prosecution, commenced August thirtieth, . was alleged to have been committed.
    The plaintiS asked leave to amend Ms complaint by alleging that the defendant was a resident of the city of Yonkers, but his request was denied.
    
      Held, that there was sufficient proof of the fact, and that leave to amend should have been granted;
    That there was no force in the argument that it did not appear that the defendant lived in Yonkers when the action was commenced, it having been proved that he was living there two days before;
    That as it appeared that the defendant lived within the jurisdiction of the court at a reasonable time prior to the commencement of the action, the conclusion was permitted that he was residing there when the action was begun.
    Appeal by the plaintiff, James J. Hogan, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of the said court on the 15th day of November, 1895, upon the decision of the court rendered after a trial before the court without a jury dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office denying the plaintiff’s motion to amend the complaint.
    
      I. J. Beaudrias, for the appellant.
    
      William liiley, for the respondent.
   Brown, P. J.:

The plaintiff’s complaint in this action was dismissed after all the testimony had been introduced by both parties, on the ground that the complaint was defective in not alleging that the defendant was .a resident of the city of Yonkers.

The City Court of Yonkers, in. respect to civil actions, is given jurisdiction by statute in cases where the defendant resides in said ■city or in a town of Westchester county adjoining that city or where .a warrant of attachment has been granted to accompany the summons and levied on property of the defendant within that city.

This action was brought to recover damages for an alleged malicious prosecution. The complaint contained no allegation that the •defendant was a resident of the city of Yonkers, and in this respect was defective. In the view We take of the case' it is not necessary to determine whether the objection thereto was waived by the ■defendant’s failure to take it by demurrer or answer. (Code Civ. Proc. § 499.)

At the close, of the.testimony the defendant moved for judgment on the ground that the court had. no jurisdiction to determiine the action, whereupon the plaintiff moved to amend his complaint by inserting an allegation that the defendant was a resident of the city of Yonkers, and in that respect to conform the pleading to the-proof. ' ■ .

The learned city judge, in his decision, states that, in his opinion, the plaintiff had a meritorious cause of action, but that he felt com ■ strained to, deny the plaintiff’s motion and to dismiss the complaint, on the ground that there was no evidence that the defendant was a resident of said city, at the time of the commencement of the action.

The complaint alleged that the defendant had, before - the acting judge of the City Court of Yonkers, on August 28,1895, charged the plaintiff with having maliciously broken open a. door -in á hallway on defendant’s premises. The answer, while specifically denying this allegation of the complaint, alleged that “ the defendant saw the plaintiff herein, break with a hammer the lock of the door of the premises of which defendant was then the tenant and in lawful possession.” Upon the trial it appeared that both parties were tenants of one Larry Condon, and occupied portions of a house known as 15£ Palisade avenue, in said city. Hogan occupied the ground floor as ■ a saloon, and the defendant lived with his family oh the floor over the saloon. The plaintiff testified as follows: I know Max Glueck ;■ * * * helives at 15£ Palisade Avenue.” ■

Bichard Condon, a son of Lawrence Condon, testified in reference to the premises, as follows: “ The hallway is for the use of Mr. Hogan on the basement floor, Mr. Glueck on the next, floor and' another tenant. * * - * I granted, to Mr. Glueck the use' of that-hallway.”

Glueck himself testified. that he was a tenant of the apartments over Hogan, and saw him break the lock of the hall doorthat after he saw him break the lock he went down stairs, and' that his wife came down and complained, and that he, Gltieck, then went out and consulted a lawyer, and caused the complaint to be - made -upon which Hogan was arrested. He further testified that -he- told the lawyer that Hogan occupied the saloon, and that he,- Glueck,. lived on the first floor over the saloon. Near the close of his testimony, he was asked the following question by his counsel, and made. , the following answer i “ Q. Mr, G-lueck, does Mr. Hogan’s family live in the same bttildihg' that you do ? A. Ho, sirtwo houses away.” '

This testimony, we tíiink, showed clearly that the defendant lived in the building where the offense with which' plaintiff - had been charged was alleged to have been committed:

The argument that it does not show that he lived there at the time the action W&s commenced is not worthy of serious consideration. The offense was charged to have been committed on August twenty-eighth, and this action Was commenced on August thirtieth; and proof of the fact that defendant lived in Yonkers on the twenty-eighth permitted the conclusion that lie was living there two days later. The- probative force of the testimony was not confined to the exact moment of which the witness spoke-. When it appeared that the defendant lived within the jurisdiction of the court within a reasonable time prior to the commencement of the action, the conclusion was permitted that he was residing there when the action was commenced,

But much of the testimony referred to related to the time of the trial,- and showed that the defendant’s residence at that time was the same as it was on "the twenty-eighth of August. Indeed, it is apparent from a reading of the testimony that the case was tried by both parties on the theory and assumption that the defendant was a resident of the city of Yonkers, and within the jurisdiction of the court, when the action was commenced.

We are of the opinion, therefore,, that as it appeared affirmatively that the court had jurisdiction of the action that the motion to amend the complaint should have been granted.

The judgment and order must be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and new trial ordered, costs to "abide the event.  