30 Barb. 99 | N.Y. Sup. Ct. | 1859
The defendant is a corporation, created by the laws of this state, and must be deemed a resident of this state. (13 Peters, 519 ; and 14 id. 129. 2 Howard’s U. S. Rep. 499.) This court must, therefore, have jurisdiction of the person of the defendant, in the same manner, and to the same effect, as over natural persons resident within this state. But jurisdiction of the person of the defendants does not include jurisdiction of the subject matter of the action. And appearance waives nothing, for section 144 of the code expressly gives the right to demur to the jurisdiction of the court in respect to the subject matter of the action, as well as of the person. And this is the question particularly raised upon this demurrer. The cause of action in the complaint, so far as it depends upon the killing of the intestate, did not arise within this state, but arose on the rail road of the defendants, between Aspinwall and the city'of Panama, in the Republic of Hew Grenada, where it is alleged the husband of the plaintiff was killed, by the negligence and unskillful conduct of the agents and servants of the defendants. Clearly, no action at common law would lie for the cause stated in this complaint, even if the death had occurred in this state. (Quin v. Moore, 15 N. Y. Rep. 436. 9 Cranch, 480. Green v. Hudson River R. R. Co., 28 Barb. 13. 21 id. 245.) The right, therefore, to maintain this action, depends upon the question whether the acts of the legislature of this state, of 1847 and 1849, (Sess. Laws of 1847, p. 575 ; Id. of 1849, p. 388,) giving a right of action to the next of kin of persons killed by “ the wrongful act, -neglect or default of another,” applies to the case. If the defendants were a foreign corporation the case would be precisely identical with the cases of Vanderventer v. The New York and New Haven R. R. Co., (27 Barb. 244,) and Beach v. The Bay State Company, (id. 248,) in which Justices Peabody
But as the defendants are a corporation organized under a
The only question which remains to be considered is, how far the fact that the contract was made, and the fare paid, in this state, for the transportation of the plaintiff's intestate upon the defendants' road, affects the right of action here, notwithstanding the killing was in New Grenada. The complaint states “that on or about the 24th day of April, 1856, at the city of New York, for a reasonable compensation paid to the defendants by the said Bartholomew Crowley, (the plaintiff's intestate,) the defendants agreed to convey the said Bartholomew over their said rail road from Aspinwall to Pa- • nama, when he, the said Bartholomew, should thereafter arrive at Aspinwall; and that the defendants received him on their said road on his arrival there, and that the servants and agents of the defendants so negligently and unskillfully conducted themselves, in the management of the said rail road, that through such negligence the said Bartholomew was killed, while a passenger in.one of their oars.” Here was an express agreement made in this state safely to transport the plaintiff's intestate over the defendants’ rail road as a passenger, which, if Crowley, from the negligence of the defendants’ agents or servants, had sustained any injury on the said rail road, that he had survived, would unquestionably have entitled him to maintain his action therefor, in this state. If the cause of action set out in this complaint, therefore, could be considered' as arising upon this contract, and surviving by force of the statute, in behalf of the plaintiff „as the representative of the deceased, then most certainly the action could be maintained in this state. But such is not this action. It is not upon the contract. It is founded upon a tort. No right of action
I think, therefore, that this court has no jurisdiction of the cause of action set out in the plaintiff’s complaint, and that the judgment of the special term should be reversed, and judgment given for the defendant, upon the demurrer.
Judgment reversed.
T. R. Strong, Johnson, Welles and Smith, Justices.]