
    John W. Simmons Company, Appellant, v. Edward W. Costello, Respondent.
    
      Amended complaint — an allegation as to residence held to refer to the time of the commencement of the action.
    
    An allegation contained in an amended complaint in an action brought in the City Court of Yonkers, which is a court of limited jurisdiction, averring “that the defendant is a resident of the City of Yonkers, N. Y.,” will be presumed to refer to the defendant’s residence at the' time of the commencement of the action unless controlled by other allegations showing a contrary intention.
    Appeal by the plaintiff, the John W. Simmons Company, from an interlocutory judgment. of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 25th day of March, 1901, upon the decision of the court sustaining a demurrer to the plaintiff’s amended conxplaint.
    
      Oliver IT. P. Merritt, for the appellant.
    
      F. 'X. Ponoghue, for the respondent.
   Jenks, J.:

.■ This action was begun in the City Court of Yonkers by service of a summons and a complaint. Four days thereafter the defendant demurred that the court did not have jurisdiction, and upon the following day the plaintiff served an amended complaint which contained this additional allegation : “ That the defendant is a resident of the City of Yonkers, N., Y.” The defendant thereupon demurred that the court had not jurisdiction of the action, and his demurrer was. sustained. The.point raised is that the amended complaint does not allege that At the time the action was commenced the defendant was a resident of the City of Yonkers or of a Town of Westchester County adjoining that city.” The allegation of residence is essential because the court is of limited jurisdiction. (Laws of 1893, chap. 416.) But I am of opinion that the allegation is sufficient. The amended complaint was a new pleading, served as a matter of right, and became the complaint in this action. (Pennimam, v. F. & W. Co., 133 N. Y. 442, 444, and authorities cited.) The allegation of the residence of the defendant is presumed to refer to his residence at the time of the commencement of the action, unless controlled by other allegations showing that a different date was intended. (Barker v. Cunard Steamship Co., 91 Hun, 495.) The pleading, which is the ordinary complaint in an action upon a promissory note made by the defendant, contains no allegation which disturbs this presumption.

The judgment is reversed, with costs.

All concurred.

Interlocutory judgment reversed, with ten dollars costs and disbursements.  