City of New York Municipal Court, 1891

Perry v. Erie Transfer Co.

Perry v. Erie Transfer Co.
City of New York Municipal Court · Decided October 15, 1891 · Ehrlich
16 N.Y.S. 153; 40 N.Y. St. Rep. 693; 1891 N.Y. Misc. LEXIS 363 (New York Supplement)

Counsel

Andrew Wesley Kent, for appellant. Strong & Cadwalader, (Geo. W. Wickersham, of counsel,) for respondent.

Perry v. Erie Transfer Co.

Opinion of the Court

Ehrlich, C. J.

It does not by the complaint, nor is it objected to in the answer, that the plaintiff was at the time the action was commenced a *154resident of New Jersey. Such being the case, the want of jurisdiction was not an issue to be tried. It was waived. Although the defendant is a foreign- corporation, the action is transitory, and but for the non-residence of the plaintiff, the court would have had jurisdiction of both subject-matter and parties. The objection, or grounds upon which it is based, ought to have appeared in some form by the pleadings. The cause of action was clearly proved, and verdict properly directed. It follows that the judgment appealed from must be affirmed, with costs.

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