O'Reilly v. New Brunswick, Amboy & New York Steamboat Co.

Freedman, P. J. This action was brought to recover damages for the alleged negligence of the defendant. It appears that the plaintiff was the owner of the canal boat Julia 0. Driscoll; that on January 28, 1895, this boat was lying at a dock on the Raritan river, and that the defendant was the owner of the steamer ¡New Brunswick, then navigating the waters of said river. It is claimed by the plaintiff that on the morning of that day the steamer while proceeding rapidly on her way down the stream, the river then being full of ice, caused the ice to be forced so strongly against the canal boat as to cut a hole in her side causing her to sink, and for the loss this action was brought. The case was tried in the City Court before a jury and was sharply contested. The most important question presented by the appeal relates to the jurisdiction of the City Court to entertain the action. The defendant is a foreign corporation, organized and existing under and by virtue of the laws of the state of Rew Jersey, and the 'cause of action founded upon the sinking of the boat arose in Rew Jersey, and for these reasons the defendant insists that the jurisdiction of the court depends, under section 1780 of the Code upon the fact of plaintiff’s residence within this State, The question was raised at the commencement of the trial by motion to dismiss the complaint on the ground of insufficiency, in not stating that the plaintiff is a resident, and at the close of plaintiff’s case and the close of the whole case by motion to dismiss. The motion was in each instance overruled and the defendant duly excepted. The City Court, although a court of record for certain purposes, is a local court and a court of limited jurisdiction. Code Civ. Pro., §§ 315-318. Under section 315 of the Code, however, it has, and for a long period prior to the commencement of the present action had, jurisdiction of an action against a> foreign corporation wherein the complaint demands judgment for a sum of money only. But section 1780 of the Code further prescribes that a resident of the State only may maintain an action against a foreign corporation for any cause of action, and that a nonresident may maintain against a foreign corporation only certain actions therein specifically enumerated. This section applies to the Supreme Court as well as to the City Court, and it makes the residence of the plaintiff a jurisdictional fact in every case which is not one in which a nonresident is expressly permitted to sue. The section reads as follows: “ § 1780. An action against [114] a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract made within the State, or relating to property situated within the State, at the time of the making thereof. 2. Where it is brought to recover real property situated within the State, or a chattel which is replevied within the State. 3. Where the cause of • action arose within the State, except where the object of the action is to affect the title to real property situated without the State.” The case at bar is not one in which the plaintiff, if he be a nonresident, is permitted by section 1780 to sue, and the question therefore arises whether it was necessary for him to set forth in his complaint the jurisdictional fact that at the time of the commencement of the action he was a resident of this state, and what course the defendant must pursue in order to raise the question of jurisdiction. The authorities bearing upon these points are numerous and very conflicting and they cannot well be reconciled. In some of them it was held that where the want of jurisdiction by reason of plaintiff’s nonresidence does not appear on the face of the complaint, the objection cannot be taken by demurrer. Fisher v. Charter Oak Life Ins. Co., 14 Abb. N. C. 32; Gurney v. Grand Trunk R. Co., 37 N. Y. St. Repr. 557. In some of them it was held that the nonresidence of the plaintiff in an action against a foreign corporation is matter in abatement merely, and is waived by appearing and pleading in bar. Downes v. Phoenix Bank, 6 Hill, 297; Root v. Great Western R. Co., 65 Barb. 619 (affirmed, 55 N. Y. 636, on another point). In McCormick v. Pennsylvania Central R. R. Co., 49 N. Y. 303, Folger, J., said: “ We will assume that the plaintiff was at noi time a resident of this State. * * * The cause of action was of that nature, that although it arose in another State, the court below had jurisdiction of the subject-matter of the action. * * * "^e hold that where the court has the jurisdiction of the subject-matter or cause of action, that consent may confer jurisdiction of the person; and that such consent may be expressed by a foreign corporation, by appearing by attorney and answering generally in the action.” [115] At the time the cause of action in that case accrued and also at the time of the decision of the case, section 427 of the old Code was in force, which read as follows: “ § 427. An action against a corporation created by, or under the laws of any other state, government or country, may be brought in the Supreme Court * * * in the following cases: 1. By a resident of this state, for any cause of action. 2. By a plaintiff not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within the state.” The subsequent case of Pease v. Delaware, etc., R. R. Co., 10 Daly, 459, in which the question arose under section 1780 of the Code of Civil Procedure, was decided on the strength of McCormick v. Penn. Central B. B. Co., supra. In Gundlin v. Hamburg-American Packet Co., 8 Misc. Rep. 291; 31 Abb. N. C. 437, it was held, substantially, that although the complaint failed to aver plaintiff’s residence, the defendant could raise and litigate the question under a general denial, and that if thereupon a conflict of evidence arose upon the point it was the province of the jury to determine the conflict. In Root v. Great Western R. Co., supra, it was added: “No question was made on the trial that the plaintiff was a nonresident. It might be that the plaintiff could prove himself a resident of the state, had the question been raised.” The eoncuri’ing opinion of Van Brunt, P. J., in Gurney v. Grand Trunk R. Co., supra, also shows that the question of jurisdiction may be raised at the trial. In Barker v. Cunard Steamship Co., 91 Hun, 495, the complaint did allege the plaintiff’s residence^ and at the trial m> question of jurisdiction was raised and a general verdict was rendered for the plaintiff. In his opinion, Eollett, J., says: “* * * The defendant asked no questions of the plaintiff in respect’to his residence and gave no evidence on that issue. * * * The testimony does not conclusively show that the plaintiff was not a resident of this State when the action was begun, and the presumption of jurisdiction is not rebutted. If it can be said that the evidence is capable of different inferences as to the place of residence of the plaintiff, the answer is that the jury has drawn the inference and determined the question in his favor. * * * The issue in respect to the plaintiff’s residence having been found in his favor by the general verdict, and the question not having been raised at [116] the trial, it must be held that the lower court had jurisdiction of the action.”