Brisbane v. . Pennsylvania R.R. Co.

Cullen, Ch. J. The authorities in the highest courts of this state are uniform to the effect that our courts have no jurisdiction of an action for damages for injuries to real estate lying without the state, and the latest decisions are quite recent. (Watts’ Admrs. v. Kinney, 23 Wend. 484; S. C., 6 Hill, 82; American Union Tel. Co. v. Middleton, 80 N. Y. 408; Cragin v. Lovell, 88 id. 258; Dodge v. Colby, 108 id. 445.) It was so held by Chief Justice Marshall in Livingston v. Jefferson (1 Brock. 203), where he decided that an action could not be maintained in Virginia for trespass upon lands in Louisiana. Such also is the rule in the great majority of the states (Allin v. Conn. River Lumber Co., 150 Mass. 560; Niles v. Howe, 57 Vt. 388; De Breuil v. Pennsylvania Co., 130 Ind. 137; Eachus v. Illinois & M. Canal, 17 Ill. 534; Bettys v. Milwaukee & S. P. Ry. Co., 37 Wis. 323; Cooley on Torts [2nd ed.], p. *471), though there are some where the contrary rule prevails (Little v. Chicago, S. P., M. & O. R. Co., [Minn.] 33 L. R. A. 423; Holmes v. Barclay, 4 La. Ann. 63), and the old law was changed in Virginia by a statute. Were the question an open one, I would favor ; the doctrine that our courts have jurisdiction of actions to recover damages for injuries to foreign real estate. Chief 'Justice Marshall in Livingston v. Jefferson (supra) expressed his personal disapproval of the rule to which he felt bound to give effect under the authorities. In the century that has elapsed since Chief Justice Marshall’s decision, all the decisions in this state which I have cited have been rendered. At this late day I think we would not be justified in overruling these cases, but should leave it to the legislature to change the rule by statute. Nor do I see any ground on which the case before us can be distinguished from the others in this court. It is conceded that an action for trespass or trespass on the *435 case for injuries to foreign land cannot be maintained here under our rule. But it is sought to take this case without the rule on the ground that it is an action for negligence and, therefore, transitory. I understand that an action for negligence is, or was so long as actions had names and forms, an action of trespass on the case, and it was for trespass on the case for injury to realty, or trespass on the case for injury to the person or to personal property, dependent on the injury for which recovery was sought, whether to realty, personalty or the person of the plaintiff. (Pomeroy’s Code Remedies, section 20; Tyler’s Stephen on Pleadings, p. 46.) Such an action for injury to realty was never transitory in this state, at least until the enactment of the present Code of Civil Procedure in 1877, since which time the rule may be doubtful, By the Revised Statutes it was enacted (2 R. S. 409, section 2) that actions for trespass on lands and for trespass on the case for injury to real estate should be tried in the county in which the subject of the action was situated. ■ (Graham’s Pr. p. 194.) Section 123 of the old Code of Procedure — which was the law in force when Barney v. Burstenbinder (7 Lans. 210) and Home Ins. Co. v. Penn. R. R. Co. (11 Hun, 182) were decided — prescribed that actions for injuries to real property must be tried in the county in which the subject of the action was situated. Therefore, there was no foundation for the proposition which it is contended that those cases decided, that an action for damages for injuries to real estate through negligence was transitory. I doubt very much whether the proposition was decided or intended to be decided in the earlier case, which was for injuries occasioned by an explosion in California. The action was for injuries to personal as well as to real property. It was there said that the injury to the real estate was only an element of the damage. Of course, a cause of action for injury to personal property is transitory, and, therefore, the action could be *436 maintained to some extent in our courts. How, if at all, the question of the right to recover here for the injury to the real estate was raised by the defendant does not appear. Under the present section 982 of the Code it is not entirely certain whether actions for injuries to real estate are local or transitory, but it is not necessary to consider that question, for it has been decided that it does not affect the question before us. In Cragin v. Lovell (supra) it was said: “It is a mistake-to suppose that this rule {i. e., the rule that the court had. not jurisdiction of actions for injuries to foreign real estate) has been changed by section 982 of the Code. That- section was not intended to define the jurisdiction of the Supreme Court, but simply to determine the place of trial of actions of which it had jurisdiction.” (p. 263.) The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in both courts, with leave to the plaintiff to serve an amended complaint within twenty days on the payment of costs. The first and second questions certified should be answered in the negative and the third in the affirmative.