Judgment was rendered in favor of the plaintiff in the action, which was brought in the Municipal Court of the city of ¡New York. Upon an appeal therefrom to this court the objection was made for the first time, that it nowhere appeared in
The decision of this court in the case of Tyroler v. Gummersbach, above cited, proceeded solely upon the theory that the Municipal Court was a newly-created tribunal, and not a continuation of the District Courts. In the course of the opinion of the court in that case, it was said (p. 155): “ If, therefore, it could be held that the Municipal Court of the city of Mew York is but a continuation of the District Courts of the city of Mew York with substantially the same jurisdiction theretofore possessed by said courts, the claim of the appellant would be untenable.” The opinion also refers to the case of Dammann v. Peterson, 17 Misc. Rep. 369, where it was held by this court that the plaintiff in an action in a District Court was not required to allege or prove the residence of either or all of the parties within the judicial district, and that the rule, laid down in Frees v. Ford, 6 N. Y. 176, and Gilbert v. York, 111 id. 544, to the effect that all the facts necessary to confer jurisdiction must affirmatively appear in the record, including the residence of the defendant, applied only to County Courts, and did not apply to the District Courts, because the jurisdiction of the latter was made to depend solely upon the character of the cause of action, and not upon the residence of the parties. It will tiras be observed that the doctrine laid down in the Tyroler case has been completely overthrown by the decision of the Court
We are further of the opinion that an objection, such as that which was raised here, cannot be taken for the first time upon appeal. Hill v. Moebus, 31 Misc. Rep. 134; Dammann v. Peterson, 11 id. 369; Bang v. McAvoy, 52 App. Div. 501.
The motion for a reargument of the appeal is granted, such reargument to be held at the October term.
Gtegerioh and O’Gorman, JJ., concur.
Motion granted.