
    Isidore J. Beaudrias, as Receiver of the Goods and Effects of John Hogan, Respondent, v. Margaret Hogan, Appellant, Impleaded with John Hogan.
    
      Jurisdiction of an inferior court — it may be shown by paroi evidence where the facts necessary to establish it do not appea/)' on the reem'd.
    
    The jurisdictional facts necessary to support the judgment of a court of limited jurisdiction, where such judgment is assailed, may be shown by paroi in case the record fails to recite such facts.
    A receiver of a j udgment debtor, bringing an action based upon a judgment recovered against the debtor in the City Court of Yonkers, although the complaint in the original action fails to allege that either party to it was a resident of the city of Yonkers or of a town of Westchester county adjoining thereto, as required by subdivision 4 of sectio.n 3204 of the Code of Civil Procedure, may prove by paroi that the judgment debtor was a resident of the city of Yonkers at the time when the original action was begun.
    
      
      Semble, that the jurisdiction of superior courts will be presumed and that of inferior courts will not be presumed, but must be established either by the record or by proof 'aliunde the record ; and in the case of both classes of courts the jurisdiction may be impeached by paroi evidence showing that the facts' essential to jurisdiction did not in reality exist.
    Appeal by the defendant, Margaret Hogan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1897, upon the decision of the court rendered after ¡a trial at the Westchester Special Term.
    
      F. X. Donoghue, for the appellant.
    
      Joseph F. Daly, for the respondent.
   Cullen, J.:

This action is brought to set aside a conveyance of certain lands made by the defendant John Hogan to the defendant Margaret Hogan as fraudulent and void as against creditors. The foundation of the plaintiff’s title and right to bring the action is a judgment recovered in the City Court of Yonkers by the First National Bank of Yonkers against the defendant John Hogan and another upon a promissory note. The complaint in that action failed to allege that either the plaintiff or defendant resided in the city of Yonkers, or in a town of Westchester county adjoining thereto, as required by subdivision 4, section 3204 of the Code of Civil Procedure. On a previous appeal we reversed the judgment then before us upon the ground that the case did not show the jurisdiction of the City Court of Yonkers to render the judgment, the residence of the parties not appearing on the face of the record. (16 App. Div. 38.) In the opinion then delivered by' Justice Bbadley, it was stated that the question whether jurisdictional facts could be shown aliunde the record was the subject of diverse views and conflicting decisions,, but that it was unnecessary to decide the question as there was- no-evidence in the case of the actual residence of the parties. Upon the trial now under review, plaintiff proved by paroi evidence that John Hogan was, at the'time of the institution of the action in the-City Court of Yonkers, a resident of that city. It, therefore, now becomes necessary for us to decide the question then left undetermined, whether it is permissible to sustain the jurisdiction of the^ City Court of Yonkers by proof aliunde when the record fails to recite or establish the jurisdictional facts.

I cannot find that this question has ever been directly adjudicated by any decision of the. courts of this Staté where the point was necessarily involved, except one, though many declarations on the subject are to be found in judicial opinions. The law seems settled in this State that, while the jurisdiction of. any court of the subject-matter, or of the person of the defendant, may be assailed collaterally (Ferguson v. Crawford, 70 N. Y. 253), the jurisdiction of superior courts will be presumed, and this though the record fails to recite the requisité jurisdictional facts and the court be one of limited jurisdiction. Thus it has been held, in a long line of cases (the last of which is Continental Ins. Co. v. Rhoads, 119 U. S. 237), that the jurisdiction of the United States Circuit Court must appear affirmatively by the record ; and that if the record does not show the citizenship of the parties where the jurisdiction of the Circuit Court depends on citizenship alone, the judgment will be reversed on appeal. But it is equally settled by authority that such a defect, or the failure of the record to show jurisdiction, does not render the judgment of the Circuit Coxirt void when attacked collaterally. (M'Cormick v. Sullivant, 10 Wheat. 192; Ex parte Watkins, 3 Pet. 193; Ruckman v. Cowell, 1 N. Y. 505; Chemung Canal Bank v. Judson, 8 id. 254.) Indeed, under the authority of the last two cases cited, the failure of the record to recite the jxuisdictional facts .does not even depidve the judgment of the presumption that the court had acquired jxxrisdiction. It is, therefore, clear that the reversal on appeal of the jxxdgxnent of a coxirt of limited jurisdiction for failxire in the record to show the jurisdictional facts, is not an authority for the contention that such a judgment is void, but simply proves it en-oneous. It may be conceded that the City Court of Yonkers and the County Courts of various coxxnties are. of the same character, that is to say, they are not only coxxrts of limited jurisdiction, but ai-e inferior courts; and the decision that, in actions in the County Court, the residence of the parties must be averred in the complaint or the complaint will be subject to demurrer, is entirely applicable to actions in the City Court of Yonkers. But those cases which hold that such judgments will be revei’sed on appeal (Frees v. Ford, 6 N. Y. 176; Gilbert v. York, 111 id. 544) are not necessarily authority for the proposition that, the judgments are void. As already shown, in the case of the judgments of the superior courts, the reverse of this proposition is true; and in Gilbert v. York, Judge Andrews limits the rule, that “ a judgment of a court of limited and inferior jurisdiction, the record must show affirmatively that the court had jurisdiction, or else the judgment will be set aside,” to the case of a direct proceeding to review that judgment.

In Van Deusen v. Sweet (51 N. Y. 378) the question arose as to the admissibilty of an inquisition in lunacy issued by the County Court of Saratoga county, where the record did not show that the alleged lunatic was a resident of that county, blit the fact appeared by other1 evidence. The admission of the inquisition was held not error. It was said by Lott, Ch. C., speaking of the appellant’s contention : “ He, however, claims that ‘ the proceeding having been instituted in the' County Court, a court of special and limited jurisdiction, the record should show affirmatively and on its face that jurisdiction was acquired by that court over the subject-matter as well as of the person of the alleged lunatic, in order to warrant the court in issuing the writ in question.’ * * * In answer to which it is. sufficient and only necessary to say that the record is not required to show affirmatively and on its face those facts. It is enough that they did exist and were properly shown to the court.” This case,, in the absence of - other authority, would be conclusive on the question before us were it certain that a proper objection was taken on the trial. An examination of the printed case leaves the matter in some doubt. In the other cases, as already stated, the point was not necessarily involved, and it will be necessary to refer to only a few of those cases. In Frees v. Ford (supra) it was declared in the prevailing opinion, in reference to the judgments of courts of limited jurisdiction, “to all such courts the rule universally applies that their jurisdiction must appear upon the record,” But this case was a direct appeal from the judgment. Ford v. Babcock (1 Den. 158) and Walker v. Moseley (5 id. 102) deal merely with questions of pleading and are not in point. On the other hand, in Jenks v. Stebbins (11 Johns. 224) it was held of a discharge under the Insolvent Act that it was incumbent on the debtor to prove that the commissioner had jurisdiction of his case, and it was said: “ This he might have done by paroi or by relying on the facts set forth in his discharge, . for those facts were proof by virtue of the act.” The judgment, however, was supported upon the recitals in the discharge. In Barber v. Winslow (12 Wend. 102) the rule that the jurisdiction of the officer might be proved by paroi was cited with, approval, but the judgment was reversed on the ground that it was-competent for the adverse party to defeat the discharge by showing; that the officer had not jurisdiction. In Simmons v. De Barre (8 Abb. Pr. 269) it was said that the “jurisdiction of an infe'riorcourt will not be presumed in support of the validity of its proceedings, but, on the contrary, enough must appear upon its records, or be otherwise proved, to show that it had jurisdiction of the subject-matter of the action and of the parties.” In Harrington v. The People (6 Barb. 607) Judge Paige said: “ If the record of the inferior court or tribunal omits to state facts .necessary to give it jurisdiction, such-record, without proof of the facts aliunde, is not evidence for any purpose.” In neither of these cases, however, was any proof given to show that the court had jurisdiction-. Other cases may be cited in' which declarations to the same effect are to be found. The weight of judicial opinion in this State, while it must be confessed that, except in the case of Van Deusen v. Sweet (supra), the declarations are 'obiter, seems to recognize the principle that the jurisdictional facts necessary to support the judgment of a court of limited jurisdiction may be shown by paroi where the record fails to-recite such facts.

The question has arisen in the State of California. It was there held, in the case of Jolley v. Foltz (34 Cal. 321), that where the record is silent the jurisdiction of the court may be proved by paroi. -Mr. Freeman, in his work on Judgments (§ 518), says, referring to the California case: “ The question has been directly involved and decided in a decision in which the rule that jurisdiction must be apparent on the face of the proceedings was limited to those jurisdictional facts which the law directs the court to set forth on its records. Any other fact essential tó jurisdiction may be established by evidence aliunde; and this position, while controverted in many of the States; and perhaps not yet sustained by the majority of the decisions upon the subject, is, in our judgment, sup- ■ ported by the better reasons and destined to gain adherents.”

If we can consider the question an open one in this State, despite the decision in the Van Deusen Case (supra), we are inclined to follow the doctrine of the California authority. It seems in harmony with the rule that prevails with us, that the jurisdiction even of the highest courts may be impeached by showing that the court had not jurisdiction of the defendant or the subject-matter, notwithstanding that the record recites jurisdiction. If it is permissible to assail the record of a court by paroi evidence, though the record avers jurisdiction, I cannot see why on principle it should not be permitted to prove jurisdiction by paroi evidence where the record is silent on the subject. The distinction between judgments of superior courts and those of limited jurisdiction will still be maintained. In the former class jurisdiction will.be presumed, though the record is silent on the subject; in the latter class jurisdiction will not be presumed and it will be necessary to prove jurisdiction either by inspection of the record or by proof aMum.de; and as to both classes the jurisdiction may be impeached by paroi evidence if the facts giving jurisdiction did not in reality exist.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  