Routenberg v. Schweitzer , 61 N.Y.S. 84 ( 1899 )

Leventkitt, J.

This judgment must be reversed for lack of proof of the requisite fact of the defendant’s residence within the jurisdiction of the court. Upon the return of the summons the defendant formally insisted that he was a nonresident and presented affidavits containing positive allegations that, at that time and for the preceding eleven years, he had been a resident of Greenville, South Carolina. Counter affidavits were submitted by the plaintiff, whereupon the justice found “ that the defendant had a place of business in the city (Hew York.)”

This finding will not satisfy the jurisdictional requirements. Residence and place of business are not synonymous. The' respondent evidently recognized this, for after the appeal had been argued and submitted he presented for our consideration a letter which he had procured from the justice,— a copy of which had been served on the appellant’s attorney — to the effect that the foregoing statement from the record was incomplete and that the justice had found as a fact from the proof, that the appellant was' a resident of the county. This letter must be disregarded as we cannot go behind the return or amend it in this informal manner. There is at best a grave question whether the plaintiff’s affidavits, considered alone, established residence. They contain no direct allegation of fact. These may, perhaps, be supplied on a rehearing although it would probably be advisable to determine the question of jurisdiction, in disputed cases, on oral testimony, where opportunity for cross-examination would be afforded. For the jurisdictional defect referred to, the judgment must be reversed. Tyroler v. Gummersbach, 28 Misc. Rep. 151.

Freedman, P. J., and MÁcLean, J., concur.

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