251 F. 673 | E.D.N.Y | 1918
Motions have been made in the five above-named actions for judgment on behalf of the plaintiff, with costs, and for the impaneling of a jury to assess damages, upon the following grounds <
It is alleged that the defendant served'a plea to the jurisdiction of the court, alleging that the suit was improperly brought in this the Eastern district of New York; that such plea was signed by the defendant’s attorneys, without specifying a special appearance; that the defendant failed to deny the allegations of the complaint, outside of the paragraphs relating to the residence of the parties, and that the defendant has its main and genéral office in the state of New York, at 14 Wall street, New York City, while its coal mines are located in Kentucky, Pennsylvania, and West Virginia; that the cause of action arose in Kentucky; that the statute of limitations has run against the bringing of this action in the state of Kentucky; and that the defendant has a person designated upon whom service can be made in the state of New York, and has therefore filed its certificate and obtained authority to do business in this state. It also appears from the record that the defendant was- organized under the 'Laws of the State of Maryland.
The defendant has made a motion in each case, asking that the action he dismissed upon a special appearance, in which the defendant
The five actions are as follows: Action No. 1, by Alexander Budris, for assault by the defendant’s servants, resulting in the physical injury of the plaintiff, at Van Tear, Ky., on the 19th of July, 1916. Action No. 2, by Alexander Budris, for wrongful entry and ejection of plaintiff, accompanied by assault and unlawful imprisonment, in breach of covenant of lease; the entry and assault being alleged to have occurred on September 9, 1914, at Van Bear, Ky. Action No. 3, by Alexander Budris, who alleges that on the 4th of August, 1914, he was ejected from a train and beaten by the servants of the defendant, contrary to the contract of carriage entered into by the plaintiff as a passenger upon a train of the Miller’s Creek Railroad Company, near Van Bear, Ky., which railroad train was operated by the defendant. Action No. 4, by Saloma Budris, wife of Alexander Budris, for unlawful entry and ejectment by force, by the defendant’s servants, on the 9th day of September, 1914, from the premises at Van Bear, Ky., which had been leased to- the said Saloma Budris and her husband. Action No. 5, by Alexander Budris and Saloma Budris, for breach of contract through failure to carry out the terms of the lease of premises at Van Bear, Ky., of which the plaintiff took possession on the 31st day of May, 1914, and from which, after the various alleged breaches of lease, the plaintiffs allege they were unlawfully ejected on the 14th of September, 1914.
The defendant has in each case pleaded in bar, alleging lack of jurisdiction, while stating that it does not appear generally and appears specially for that purpose. These pleas were filed upon the 16th of September, 1916, and on the 7th of February, 1918, notice was served that the special plea would be brought on for hearing, and that a motion would lie made to dismiss the complaint for lack of jurisdiction, on the 23tli of February, 1918. This notice was signed, as was the plea, by Davies, Auerbach & Cornell, as attorneys for the defendant, without any further statement that they appeared specially.
The plaintiffs’ motions for judgment were noticed for the same date, viz., the 13th of February, 1918, atid the matter came on for hearing, by adjournment, on February 27, 1918, when the defendant interposed two affidavits, in one of which the New York manager of the de Cendant alleges that the defendant is not a domestic corporation, is not a citizen or resident of the state of New York, was at all times a foreign corporation duly organized and existing under the laws of the state of Maryland, and that it does not own any property and has no office in the Eastern district of New York; also the affidavit of an attorney at law, associated with the attorneys for the defendant, setting forth that
It is evident, therefore, that the defendant is really asking, not for a dismissal of the cause of action, but for a dismissal of this particular suit. Such a dismissal preserves the right to renew the action, if proper service can be made. If the service alone is set aside, the court may leave the plaintiff’s pleadings -on file, and may set aside or hold as void merely the attempted use of process. Hence it is important to see if the defendant has come into court voluntarily, making the service of process unnecessary, and given the court the right to consider an issue of a sort over which it undoubtedly has jurisdiction, if the parties are properly before it. The motion to dismiss the action waives the defect in service of the* summons out of the district, but does not thereby accept jurisdiction over the defendant for the purpose of the súiL t....
The prayer for costs cannot be granted, as the court has no jurisdiction over the case; but the inadvertent request for such customary relief is not a waiver of the right to object to the maintenance of the action itself. These actions apparently could have been maintained in Kentucky, in some court in that state, or they could have been brought in Maryland, if resort was desired to the United States court, or they could he brought in the Supreme Court of New York, and by removal transferred to the United States court in this district. In each of those cases a different situation would arise than when the action has primarily been begun in the United States court for this district, where apparently the defendant does not reside, and where it has not by consent given the right to this court to exercise its general jurisdiction over such causes of action.