William Henneke, Appellant, v. John William Schmidt, Respondent

William Henneke, Appellant, v. John William Schmidt, Respondent. Second Department, October 11, 1907. County Court — complaint — failure to allege residence of defendant — amendment. The County Court having jurisdiction of an action to recover money only when ' the defendant resides in the county, the complaint in order to state a cause of action must allege that the defendant is a resident; 'hut when the defendant was served in "the county and is in fact a resident 'thereof the court, obtains jurisdiction to allow an-amendment curing the failure to allege residence. Appeal by the plaintiff, William Henneke, from a judgment of the County Court of the county of Kings, entered in the office of the clerk of said county oh the éth.day of March,-1907, upon the dismissal of the complaint at the opening of the case upon the ground that the court had no jurisdiction. ■ William H. Klinker, for the appellant. Andrew. F. Van Thun, Jr., for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The County Court is of limited jurisdiction, and is therefore not within the rule that the jurisdiction of. courts of general jurisdiction is presumed. It has jurisdiction of-an action to recover money where the defendant resides in the county and the sum demanded does not exceed - $2,000 (State Const. art. 6, sec. 14). It can no longer be gainsaid that it is necessary that the- complaint in such a,n action should allege that the defendant is a-resident of the county in order to state a cause of action of which the court has jurisdiction (Gilbert v. York, 111 N. Y. 544). The complaint here did-not contain that allegation.' The defendant at the opening of the trial moved to dismiss for want of jurisdiction appearing: The plaintiff moved to amend by alleging that the defendant resided in the county at the commencement of the action, and.offered to prove that fact. The court denied- the ¿notion to amend on the ground that it had no jurisdiction of the action to do anything in it, and-granted the motion to dismiss. . This arose out of momentary inadvertence. The court got jurisdiction of the action by the summons, if the defendant was a resident of the county ih fact, and could have allowed the amendment. The "judgment should he reversed. Jenks, Hooker, Rich and Miller, JJ., concurred. Judgment of the County Court of Kings- county reversed and new trial ordered, costs to abide the final award of costs.