Opinion
July Term, 1897.
Carleton H. White, for the appellant.
John W. Ingram, for the respondent.
The action is to recover the price of goods alleged to have been sold and delivered. The sole question involved is whether the court had jurisdiction of the defendant.
This action was begun by a summons issued and personally served on the president of the defendant in the city of Buffalo November 10, 1896, and returnable November 17, 1896. Upon the return day the defendant appeared specially and objected to the jurisdiction of the court, which objection was overruled; then it demurred on the ground that it appeared on the face of the complaint that the court had no jurisdiction of the defendant, which was overruled, and it thereupon answered, alleging that neither of the parties was a resident of or had its principal place of business in the city of Buffalo, and that the court had no jurisdiction of the defendant. The Municipal Court of Buffalo has the same jurisdiction over persons and corporations as Justices' Courts of towns, and no other. (§ 456, tit. 22, chap. 105, Laws of 1891, as amended by chap. 691, Laws of 1894, Charter and Ord. of Buffalo, 272.) It was alleged in the complaint that the litigants were domestic corporations, which are those organized under the laws of this State or under the laws of the United States. (Code Civ. Proc. § 3343, subd. 18; subd. 5, § 3, chap. 687, Laws of 1892; 2 R.S. [9th ed.] 974.) These allegations, not being denied in the answer, must be taken as true. (Code Civ. Proc. §§ 522, 1776.) The defendant is a resident of the county of Wyoming and has no place of business in the county of Erie. This fact was proved and not disputed on the trial. The plaintiff is a resident "of New York," having branches at Buffalo and in other cities. Schedule A, which is annexed to and forms part of the complaint, so states. This schedule was proved by plaintiff's witnesses. There is no evidence in the record which would justify a court in holding that either litigant was a resident of or had its principal place of business in the county of Erie.
"The term, office of a corporation, means its principal office within the State, or principal place of business within the State, if it has no principal office therein." (Subd. 9, § 3, chap. 687, Laws of 1892; 2 R.S. [9th ed.] 975.)
It would have been well if the certificates of incorporation had been introduced in evidence for the purpose of establishing where the principal offices of the litigants were situated ( People ex rel. Knickerbocker Press v. Barker, 87 Hun, 341; affd., 147 N.Y. 715), but the fact of their non-residence in the county of Erie was sufficiently proved by other evidence.
A Justice's Court of a town, under the facts proved and not disputed, would not have had jurisdiction of the defendant. (Code Civ. Proc. § 2869.)
A corporation is not a resident of nor has it its principal office or place of business within, nor is it within, every county of the State in which one of its executive officers resides or happens to travel. ( Perry v. The Round Lake Camp Meeting Association, 22 Hun, 293; Code Civ. Proc. § 341.) Neither party to the action being a resident of, or having its principal place of business in, and not being in the county of Erie when this action was begun, and the officer served not being a resident of that county, the Municipal Court acquired no jurisdiction of the defendant.
The judgment should be reversed, with costs.
All concurred, except WARD, J., dissenting.
Judgment of the Municipal Court of Buffalo reversed, with costs.