Classon v. . Cooley , 8 N.Y. 426 ( 1853 )

The plaintiff's right of recovery in this case rests solely upon the supposition that the vice chancellor of the second circuit had no jurisdiction to make the decree in the foreclosure suit of Mary Van Veelan v. The Defendant and others.

The defendant's title rests upon the validity of that decree. The simple question therefore to be determined is, whether the vice chancellor of the second circuit had jurisdiction in the foreclosure suit to make the decree and order of sale under which the defendant became a purchaser and acquired his title. The premises were situated in the first circuit, and the plaintiff in this suit who was a defendant in the foreclosure suit, resided in the second circuit. The jurisdiction of the vice chancellor rests upon the fact of the residence of the plaintiff, who was defendant in that suit in the second circuit.

As I read the statute, all that is required to give the vice chancellor jurisdiction concurrently with the chancellor, is, first, that the cause or matter which authorized the complainant to file a bill in chancery for the discovery or relief sought, must have arisen within the circuit of such vice chancellor; or secondly, the subject matter in controversy between the parties must be situated within that circuit at the time of the commencement of the suit; or thirdly, the defendants or parties proceeded against, or some of them, must be residents of such circuit at that time. (2 R.S. 168, § 2.) These classes of cases are distinct and separate, and whenever any one of the cases enumerated in the statute exists, the vice chancellor has jurisdiction and may entertain the suit. It is useless to discuss the construction of a statute in a case where it seems to me no rational doubt can exist; and besides the subject is exhausted in the very elaborate opinion of the court below, and with whose conclusions I am entirely satisfied. This construction accords with the generally received opinions of our courts and of the profession. (1 Barb. Ch. R. 189, 213, 216; 3 Denio R. 282; 3Comst. R. 137; 4 Sanf. Ch. R. 384; 9 Paige R. 150, 308; 8Paige R. 443.)

The amendment of the bill stating the residence of the plaintiff in this action and others of the defendants in the second circuit, cured the defect in the bill. (9 Paige R. 150, 151; 3 id. 508.) And it would seem that the defect in the original bill could only have been taken advantage of by demurrer if Gleason had appeared, and that the court would have allowed the bill to be amended in this respect, by alleging the facts necessary to show jurisdiction. (9 Paige, 151; 3 id. 506, 508; Cooper's Ple. 5, 181.) At any rate, there can be no doubt of the power of the court to allow the amendment in this case, and whether the authority of the court was improvidently exercised or not we can not inquire in this suit. The court below was right in holding that the vice chancellor of the second circuit had jurisdiction of the foreclosure suit, from the fact that the plaintiff in the action and several others of the defendants in that suit resided within that district at the time of the commencement of that suit, and the defendant therefore acquired a perfect title as against the plaintiff as a purchaser under that decree. The judgment should be affirmed.

Judgment affirmed.