
    Isidore J. Beaudrias, as Receiver, etc., of John Hogan, Respondent, v. Margaret Hogan, Appellant, Impleaded with John Hogan.
    
      Judgment of the Oily Gourt of Yonkers •—• when attacked collaterally, the jurisdictional facts must be affirmatively shown—the objection of want of jurisdiction is not Waived by a failure to appear and plead it.
    
    The existence of the facts necessary to give the City Court of Yonkers (an inferior local court established pursuant to section 19 of article 6 of the Constitution of 1846)'jurisdiction of an action therein, will not be presumed in support of a judgment, rendered by that court, but must be made to appear affirmatively. Such objection of want of jurisdiction is not waived by the defendant’s failure to appear and plead it, but may be raised in another action in which such judgment is attacked collaterally.
    Appeal by the defendant, Margaret Hogan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 23d day of Hovembes, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      F. AT. JDonoghue, for the appellant.
    
      Jos&ph F. Daly, for the respondent.
   Bradley, J.:

The purpose of the action was to set aside a conveyance made by .the defendant John Hogan to the defendant Margaret Hogan, his daughter-in-law, as made in fraud of his creditors. The relation of creditor of John Hogan, upon which the action is brought, is founded upon a judgment recovered by the First National Bank of Yonkers against him in November, 1891, in the City Court of Yonkers. The .objection to the recovery had is that the bank judgment was without jurisdiction, because the City Court of Yonkers is a court of limited jurisdiction, and such jurisdiction does not appear by the record.'

When that action was commenced and the judgment recovered, the statute provided that the court should have no jurisdiction of an action unless one of the parties thereto resided iu the city of Yonkers, or in a town of Westchester county adjoining that city, or a warrant of attachment be granted to accompany the summons and levied upon property of the defendant within the city, or the action be for the recovery of a statutory penalty by the city of Yonkers or some of its officers. ■ (Laws of 1818, chap. 186, § 2, subd. 4; Code Civ. Proc. § 3204, subd. 4.) The complaint in that action alleged the making by Hogan and another of a promissory note and default in payment in the usual, form. It was not alleged that any of the parties resided in the city of Y onkers or in any town adjoining the city. The defendants did not appear, and judgment was taken against Hogan by default on proof by affidavit that the summons was served upon him in that city. Nothing appears by any affirmative statement in the record of that recovery that the court had jurisdiction of the action.

The view of the trial court was that it was necessary for the defendant to have appeared and pleaded the want of jurisdiction, and, not having done so, that the objection is not available, and such is the contention of the learned counsel for the plaintiff. The reason given for such view is that by the 1st section of the act in relation to the City Court of Yonkers it was declared to be a court of record having jurisdiction of an action against a natural person or against a foreign or domestic corporation wherein the plaintiff should demand judgment, etc.. In that section there is- no qualification dependent upon residence of parties. That limitation, as has been observed, appears in the 2d .section. It is, therefore, said on the part of the plaintiff that the requirement which makes such residence of some of the parties essential to jurisdiction is not an exception or limitation in the enacting clause or in the provisions of the statute.conferring jurisdiction, but being only in a subsequent part of the statute that such limitation has the nature of a proviso, and to be effectual to defeat jurisdiction- or to render the want of it available to the defendant in that action it. was necessary for him to plead it as a defense. In support of that proposition, with other references, is cited Harris v. White (81 N. Y. 532) where, in delivering the opinion of the court, Chief Judge Folger said: “Wow, an -exception in a statute must be negatived in pleading, while a proviso need not; and this, it is said, is on the ground that-an exemption by proviso is matter of defense that a party must show to relieve him from the liability.” (See, also, Fleming v. The People, 27 N. Y. 329.)

This rule of pleading is one. of general application in cases where the justification for a defendant is in the proviso by virtue of which he may be relieved from statutory liability, to which he otherwise would be subjected by the charge made against him. The question here is one of power of the local court to render the judgment, and that was dependent upon its jurisdiction. The difficulty is that the City Court of Y on-kers is necessarily a local court of limited and special jurisdiction because the legislative power in that respect is restricted by the Constitution to the creation of “inferior local courts of civil and criminal jurisdiction.” (Const. of 1846, art. 6, § 19 ; Sill v. The Village of Corning, 15 N. Y. 297; Brandon v. Avery, 22 id. 469; The People ex rel. Townsend v. Porter, 90 id. 68.) The nature of the court inherently is such as to show the necessity of making its jurisdiction appear to give effect to adjudk cations in actions there prosecuted. It was not necessary for the defendant to appear in the action in the City Court and plead- the non-observance of the facts essential to jurisdiction, .to render the judgment ineffectual for the want of it. On the contrary, the facts necessary to the jurisdiction will not be jn’esumed, but must be made to appear affirmatively in support of judgments of such courts. (Frees v. Ford, 6 N. Y. 176; Gilbert v. York, 111 id. 544.) In those two cases the actions were determined on review for insufficiency of the complaints in that they failed to allege the facts essential to the jurisdiction of the court.

In the present case the judgment of the City Court of Yonkers is challenged as not having the support of the jurisdiction' of that court. To render it effectual against such collateral attack the appearance of jurisdiction is equally as necessary for the purposes of this action as would be requisite to sustain it on review. And as jurisdiction does not appear, it may be deemed void and, therefore, ineffectual to show that the bank had the relation of creditor to the defendant John Hogan, necessary to the action for the relief sought through the plaintiff as receiver, or to support the proceedings in which the latter was appointed. (Pierson v. Fries, 3 App. Div. 418; Ziegler v. Corwin, 12 id. 60.)

There is a diversity of views in the courts of the different States whether the jurisdictional facts must appear in the record or may he shown aliunde, when the statute does not direct that they be set forth in the record of the judgment. (Brown v. Cady, 19 Wend. 477; Ford v. Babcock, 1 Den. 158; Walker v. Moseley, 5 id. 102; Simons v. De Bare, 4 Bosw. 547; Van Deusen v. Sweet, 51 N. Y. 378; Jolley v. Foltz, 34 Cal. 321; Williams v. Cammack, 27 Miss. 209.)

There is no evidence in the appeal book upon which this review is had to present this question for consideration, and, therefore, it is not considered. The jurisdictional facts neither appear in the judgment record or otherwise to have existed.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

All concurred.

Judgment reversed and new trial granted, costs of this appeal to abide the final award of costs.  