This action was originally commenced before a justice of the peace of the town of Machias, in the county of Cattaraugus. It was originally brought by John Corey, commissioner of highways of the town of Yorkshire, in Cattaraugus county, and Hudson Waite commissioner of highways of the town of Ashford, in the same county, against Alfred Eice, commissioner of highways of the town of Sardinia, in the county of Erie.
The suit originated in the following facts : The town of Sardinia, in Erie county, is situated on one side of the Cattaraugus creek. On the other side, and opposite to Sardinia, are.the towns of Yorkshire and Ashford, in Cattaraugus county. Each of the three towns extends to the center of the creek. A highway divides the towns of Yorkshire and Ashford, and extends across the creek into and through Sardinia. A bridge across the creek constitutes a part of this highway. The entire north half of the bridge is in the town of Sardinia; the south half is in the towns of Ashford and Yorkshire. The highway commissioners of the three towns jointly entered into a contract with one L. Corey, whereby he agreed to construct the bridge in question at a certain price. The contractor performed the work, and each of the commis*496sioners paid to him one third of the contract price. The commissioners of Yorkshire and Ashford being afterwards advised that the town of Sardinia was liable to pay one half, instead of one third, of the expense of constructing the bridge, brought this action to recover the proportionate excess paid by the commissioners of the towns of Ashford and Yorkshire respectively, over and above the amount for which it is claimed such towns are respectively liable. The action was tried before the justice, and he rendered a judgment against the plaintiffs for costs. The complaint of the plaintiffs, before the justice, demanded judgment for $200. The plaintiffs appealed to the county court of Cattaraugus county, for a new trial.
Upon what ground judgment was rendered for the defendant, before the justice, does not appear, as the testimony and proceedings on the trial are not returned. While the cause was in the county court, undetermined, Mr. Spring, who had been counsel for the plaintiffs, became the county judge of Cattaraugus county, and thereupon certified the case into the Supreme Court, under the statute. (Code, § 30.) In the justice’s court, the defendant answered by a general denial, and also in his answer claimed that the plaintiffs could not maintain the action jointly. After the appeal, the cause was once tried in the county court, where the plaintiffs recovered judgment, which, on appeal to the general term of this court, was reversed upon the ground that the plaintiffs, conceding that each had paid in excess of the liability of his town toward the expense of constructing the bridge, could not, nevertheless, maintain a joint action to recover the excess which each had paid. Since the case has been in the Supreme Court, the now plaintiff, Abram Lapham, having become commissioner of highways of the town of Yorkshire, in place of Corey, was substituted as one of the plaintiffs in place of Corey, who had died. The action was afterwards tried at the circuit in Cattaraugus county. *497And on the trial an amendment of the complaint was allowed, whereby the name of Hudson Waite, as plaintiff^ was stricken out, and the complaint was dismissed as to him, (see Ackley v. Tarbox, 31 N. Y. 564,) and the trial proceeded in the name and behalf of Abram Lapham as commissioner of the town of Yorkshire, in Cattaraugus county, as sole plaintiff, and a judgment was ordered in his behalf for $27.11, the excess paid by the commissioner of the town of Yorkshire over one quarter of the expense of building the bridge, besides costs. On this trial, the defendant moved for a nonsuit, stating amongstother grounds, that the action was improperly brought in the county of Cattaraugus. The defendant appeals from the judgment rendered against him at the Cattaraugus circuit, and amongst other objections claims that the plaintiff should have been nonsuited, because the action was improperly brought in Cattaraugus county, and therefore could not be maintained. To this objection we do not discover any satisfactory answer. By chapter 301 of the laws of 1842, it is provided that “ actions by the county or town officers of one county, against the town or county officers of another county, in their official capacity, shall be laid in some county adjoining the county of the defendant except the county of the plaintiffs.” ,
This is an action by a town officer of the town of Yorkshire, in Cattaraugus county, and is brought against a town officer of another county. ‘ The plaintiff sues, and the defendant is sued in his official capacity. The case is precisely within the act of 1842, referred to, and the justice of the peace in Cattaraugus county had no .power or jurisdiction to entertain such a suit, nor could it have been tried in the circuit court of Cattaraugus county, if the suit had been originally commenced in this court, and the objection had been taken at the proper time and in the proper manner. It is stated in the points of the re-, spondent’s counsel, that the question was not raised in the *498justice’s court, and he claims that for that reason it was waived. Conceding, for the purpose of the argument, that the official sued contrary to the provisions of the act referred to, may waive the objection so as to confer upon a justice in the plaintiff’s county, jurisdiction to try the action, the inquiry arises, what constitutes a waiver. At the common law where the venue, in a local action, was laid in a wrong county, and the objection appeared upon the declaration or record, it could be reached by demurrer, and perhaps in no other manner; but where the objection could not be reached by demurrer, it was aground of nonsuit. (12 Wend. 51. Id. 265.) The objection now raised to the main tain anee of the action did, it is true, appear on the face of the complaint in the justice’s court; but the only demurrer to a complaint which is allowed in that court, by the present law, is when it is not sufficiently explicit to enable the defendant to understand it, or when it contains no cause of action. ¡Neither of these causes of demurrer applies to an objection that the action is brought in a wrong county.
Although in the summons in this case the official titles of the respective parties are stated, yet it is not stated that the plaintiff sues, or the defendant is sued in his official capacity; upon the well settled rule the statement of the official title of the parties in this case strictly operated as a mere deseriptio personae. 'As such it was mere surplus-age, and would not have prevented the plaintiff from complaining against the defendant in regard to a mere private matter existing between the two, and unconnected with the official capacity of either.
Consequently, a dismissal of the suit before the complaint was put in, which showed that the action was connected with the official character of the parties, would have been erroneous. There seems, therefore, at present to be no method by which, in a justice’s court, the defendant, in such a case as this, can avail himself of the *499objection, except as a ground of nonsuit on the trial, as at common law, where the objection was not open to a demurrer.. The counsel for the appellant, as before stated, says that the defendant did not make this objection, on the trial before the justice. This may be so, but the record does not show that such was the case. In this case the justice was not required to return, and has not returned, what took place on the trial.
Besides, on a new trial, the party respondent, on appeal from a justice’s court, cannot be confined, on the trial, to the objections he made in justice’s court. Those objections are in no manner legally made known.to the appellate court. On a new trial there, as upon any other new trial, the parties are entitled to take any ground permissible under the pleadings. The defendant never had any occasion to raise this objection, until after the amendment was allowed by which it was permitted to strike one of the joint plaintiffs from the record, and proceed with the suit in the name of the other; as the misjoinder which had, up to that time, existed was sufficient, as was held by this court, to defeat the action.
In actions in the Supreme Court, if the county designated in the complaint for the trial be not the proper county, the action may, nevertheless, be tided there, unless the defendant shall, before the time for answering expires, demand, in writing, that the trial be had in the proper county. (Code, § 126.)
This obviously can have no application to a justice’s court. No county is designated in that court as the place of trial, and it has no power to change the venue. In that court, the objection that the action is brought in a wrong count}', if well founded, must necessarily defeat the action itself.
The judgment must be reversed ; and as the objection goes to the foundation of the action, and cannot be ob*500viated, there is no necessity or propriety in putting the parties to the expense of a new trial.
[Fourth Department, General Term, at Rochester, September 10, 1872.Judgment reversed, and judgment ordered for the defendant, with costs.
Johnson, Talcott and Barker, Justices.]