Coe v. Raymond 89 N.Y. 612

George W. Coe, Respondent, v. Alonzo B. Raymond et al., Appellants.

(Argued April 26, 1882 ;

decided May 30, 1882.)

This action was brought in the County Court of Monroe county. The complaint alleged that the defendants were co-partners, doing business as such in the county of Monroe, and claimed to recover the balance due of the purchase-price of a quantity of barley and oats sold by the plaintiff to the defendants. The defendants appeared by their attorney and interposed an answer, which admitted that they were copartners doing business as such as alleged, and that two of them resided at Broekport, in the county of Monroe, but as to each and every other allegation of the complaint they denied the same.

The principal question discussed upon the appeal was as to the jurisdiction of the County Court under section 30, subdivision 1, of the Code of Procedure,* defendants claiming *613that the court had no jurisdiction of the subject-matter of the action under said section, as one of the defendants was not a resident of the county. The question was presented upon the trial only by a motion to dismiss the complaint for want of jurisdiction ; this was denied. No exception was taken to the ruling.

The court here say: “ The complaint here avers jurisdiction, and conceding that the answer denies this important fact it only presents a question of fact for the consideration of the trial court in the first instance, and a question of law upon such fact which the court should be called upon to consider and determine. If there is no conflicting testimony as to the facts then the question of law arises, and that question can only be presented by an exception. If it be not presented then there is nothing for the court on appeal to review. This court cannot look at the facts for the purpose of determining in the first instance as an original question how the case stands upon the law as applicable to the facts, unless the question of law was raised in the court below. And it is not within its province to say, without any point being made to that effect in the trial court, that a certain fact showing a want of jurisdiction appearing the action cannot be maintained for that reason.

As the defendants in the case at bar failed to present the question we have considered, and it does not appear that any exception was taken which presents the same, it does not arise upon the record before us, and the point now urged cannot be sustained.”

J). O. Hyde for appellant.

J. Vcm Voorhis for respondent.