Frees v. Blyth

Jenks, J.: This is an action upon a judgment recovered in the City Court of Yew York upon a default. That court, though enumerated as a court of record in section 2 of the Code of Civil Procedure, “ is only a local statutory court of inferior jurisdiction.” (McCann v. Gerding, 29 Misc. Rep. 283.) “ The facts necessary to the jurisdiction will not be presumed, but must be made to appear affirmatively.” (Beaudrias v. Hogan, 16 App. Div. 38. See, too, Gilbert v. York, 111 N. Y. 544.) It appears from the record of the judgment roll that the affidavit of the service of the summons, with notice, is without venue. It is, therefore, a nullity. (Thompson v. Burhans, 61 N. Y. 52, 63; Rogers v. Pell, 154 id. 518, 529; Saril v. Payne, 4 N. Y. Supp. 897; Babcock v. Kuntzsch, 85 Hun, 33.) The question of any amendment (Cook v. Whipple, 55 N. Y. 150, 166) is not in this case. Even though the rule, that the jurisdiction of such a court is never presumed, applies only to questions of jurisdiction of the subject-matter, and that in other respects the rule as to courts of general jurisdiction obtains, as some authorities have it (17 Am. & Eng. Ency. of Law [2d ed.], 1083), yet this will not avail the appellant. In Smith v. Central Trust Co. (154 N. Y. 333, 341) it is held that the presumptions in support of superior courts of general jurisdiction only apply to such jurisdictional facts as to which the record is silent, and not otherwise, the court saying: “ When it affirmatively appears, however, that any essential step was omitted, the presumption in favor of jurisdiction is destroyed and a presumption against jurisdiction at once arises.” The answer of the defendant denies the allegations of the complaint indices verba, as “alleged or mentioned in the * * * paragraph * * * of the plaintiffs complaint,” referring to such paragraph by its number. Though not beyond criticism as containing a negative pregnant, it may be held sufficient, certainly on appeal. (Donovan v. Main, 74 App. Div. 44; Wall v. Buffalo Water Works Co., 18 N. Y. 119; Stuber v. McEntee, 142 id. 200.) The judgment and order should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.