John W. Simmons Co. v. Costello 71 N.Y.S. 577, 63 App. Div. 428

JENKS, J.

This action was begun in the city court of Yonkers by service of a summons and a complaint. Four days thereafter the defendant demurred that the court did not have jurisdiction, and upon the following day the plaintiff served an amended complaint, which contained this additional allegation: “That the defendant is a resident of the city of Yonkers, New York.” The defendant thereupon demurred that the court had not jurisdiction of the action, and his demurrer was sustained. The point raised is that the amended complaint does not allege that “at the time the action was commenced the defendant was a resident of Yonkers, or of a town of Westchester county adjoining the city.” The allegation of residence is essential, because the court is of limited jurisdiction. Chapter 416, Laws 1893. But I am of opinion that the allegation is sufficient. The amended complaint was a new pleading, served as a matter of right, and became the complaint in this action. Penniman v. Fuller & Warren Co., 133 N. Y. 442-444, 31 N. E. 318, and *578authorities cited. The allegation of the residence of the defendant is presumed to refer to- his residence at the time of the commencement of the action, unless controlled by other allegations showing that a different date was intended. Barker v. Steamship Co., 91 Hun, 495, 36 N. Y. Supp. 256. The pleading, which is the ordinary complaint in an action upon a promissory note made by the defendant, contains no allegation which disturbs this presumption. The judgment is reversed, with costs. All concur.