274 A.D. 1072 | N.Y. App. Div. | 1949
In an action to recover damages for personal injuries and for loss of services, alleged to have been due to the negligent operation of a motor vehicle owned by defendant Hernon Santa Cruz, and operated by his wife, defendant Adriana Santa Cruz, the defendants interposed an answer containing a general denial, and an affirmative defense alleging that defendant Hernon Santa Cruz is Ambassador E. and P., Permanent Representative to the United Nations from the Republic of Chile, and that defendant Adriana Santa Cruz is his wife; that they were recognized by the Department of State as entitled to diplomatic privileges and immunities in the territory of the United States; and that the court did not have jurisdiction of the cause of action or of their persons. Plaintiffs’ motion to strike out the affirmative defense, pursuant to rule 109 of the Rules of Civil Practice, on the ground that it is insufficient in law, was granted, and defendants appeal. Order reversed on the law, with $10 costs and disbursements, and motion denied, with $10 costs. Under section 15 of Public Law 357 of the 80th Congress (1st Sess., 1947, ch. 482), a permanent representative to the United Nations with the rank of ambassador or minister plenipotentiary is entitled to the same privileges and immunities in the territory of the United States as it accords to diplomatic envoys accredited to it. Section 1251 of title 28 of the United States Code, in effect September 1, 1948 (derived from former Judicial Code, § 233), provides, among other things, that the Supreme Court shall have “ original and exclusive jurisdiction ” of “ All actions or proceedings against ambassadors or other public minisfers of foreign states or their domestics or domestic servants * * *.” The defense, insofar as it is asserted on behalf of appellant Hemon Santa Cruz, is clearly sufficient in law. If we assume the truth of the allegations of the defense, exclusive jurisdiction is vested in the United States Supreme Court, and the courts of this State have no jurisdiction of the action. Such lack of jurisdiction could not be