
    Henry Willis, Respondent, v. Samuel W. Parker, Appellant.
    (Supreme Court, Appellate Term,
    March, 1900.)
    Municipal Court of the city of New York — Jurisdiction as to nonresident — Costs on reversal of judgment.
    Where the record in an action in the Municipal Court of the city of New York does not show that the defendant resided within the territorial jurisdiction of the court, he may take the objection, in the first instance, on an appeal from a judgment rendered against him, but will not be awarded costs, on the reversal, where the objection was available below hut was not taken there.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.
    Roscoe K. Ingalls, for appellant
    Henry Stanton, for respondent
   Per Curiam.

The appellant suggests that it nowhere appears in the record that the defendant is a resident of the city of Hew York, and, therefore, insists that the judgment must be reversed for lack of jurisdiction in the Municipal Court. This objection was not taken below, but is now taken for the first time. It was held by the court in Tyroler v. Gummersbach, 28 Misc. Rep. 151, that when the record in an action brought in a Municipal Court fails to show the jurisdictional fact that the defendant resided within the territorial jurisdiction of the court, it has no power to render a judgment against him, and he may take the objection in the first instance on appeal. It is most important that uniformity of practice should prevail in the Municipal Courts, and upon appeal therefrom, and we do not, therefore, feel at liberty to re-examine the question so exhaustively discussed and evidently carefully considered in the case above' cited. The statute, however, authorizes the most informal pleadings in the Municipal Courts, and, when such pleadings axe permitted, each complaint must, in the very nature of the case, be deemed to contain every allegation tiecessary to sustain the cause of action stated, including the essential jurisdictional facts. Proof of these jurisdictional facts would, therefore, be relevant under such a pleading. Upon the new trial which must follow upon a reversal of the judgment, the plaintiff may be able to prove that the defendant does reside within the territorial jurisdiction of the Municipal Court. The fact that the appellant did not raise the objection below indicates, either, that he, as well as the plaintiff, overlooked the defect as to the jurisdiction, or, that he elected to take the chance of a favorable decision below, and failing that, the certainty of a reversal upon this objection on appeal. The Municipal Courts aré organized for the purpose of affording to parties, having controversies involving small amounts, a speedy and inexpensive method of having their differences judicially adjusted. Hence, the practice of reserving, for use on appeal, an objection which can and ought to be taken below is not to be encouraged. Under section 1367 of chapter 378 of the Laws of 1897 (the Greater Hew York charter), costs upon appeal rest in the discretion of this court, when a judgment is reversed and a new trial is ordered. We think that it would be a proper exercise of this discretionary power to refuse costs in a case like the present, where the reversal of the judgment is based upon an objection which was available in the court below, but was not taken there.

The judgment must be reversed and a new trial ordered in the municipal district in which the action was brought, but, under the circumstances, without costs.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  