Jones v. Burr Brothers, Inc., 127 N.Y.S. 478

Jones v. Burr Brothers, Inc.

127 N.Y.S. 478 | N.Y. App. Div. | 1911

McLaughlin, J.:

This action was- brought to recover damages for the alleged breach of a contract of employment. The complaint alleges that the defendant is a foreign corporation,-organized and existing under the laws of the State of Connecticut; that it entered into a written contract with the plaintiff by which he was employed for a period . of six months from the 16th day of May, 1907, at a salary of thirty-five dollars per week for the first two months and fifty dollars per week for the next succeeding four months; that before the expiration of the contract term plaintiff was wrongfully discharged and thereafter was not permitted to render any services whatever, notwithstanding the fact that he was willing, ready and offered to do so. .The answer put in issue the material allegations of the complaint and alleged affirmatively that the plaintiff was discharged on *641account of his inefficiency, incompetency and failure to turn over to the defendant the proceeds of collections-made by him. At the conclusion of the plaintiff’s case defendant movéd to dismiss the complaint upon the ground, among others, that it affirmatively appeared that the court did not have jurisdiction of the subject-matter of the action, since the plaintiff at the time the contract was made and at all times thereafter was a resident of the State of Illinois, and the defendant a corporation organized and existing under the laws of the State of Connecticut. The motion was denied and an exception taken, whereupon defendant rested without offering any evidence. The court directed a verdict for the amount claimed, with interest, and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

The plaintiff was the only witness who testified at the trial, and from his testimony it appeared that from the date of making the contract to and including the time of the-trial he was continuously a resident of the State of Illinois. The contract was made in that State; by its terms the services were to be, and were, there rendered. The defendant was a foreign corporation — the complaint so 'charges and the answer admits it. ■

There being no dispute as to the foregoing facts at the conclusion of plaintiff’s case the court should have granted defendant’s motion. The jurisdiction of the court, under the facts proved, is governed by section 1780 of the Code of Civil Procedure. A reference to this section will show that under the facts proved the court did not have jurisdiction of the subject-matter of the action. It should, therefore, have granted defendant’s motion and dismissed the complaint. It is only in the cases specified in the section referred to that a non-resident plaintiff can maintain an action against a foreign corporation in the courts of this State, and in any other case the court must, at any stage of the proceeding, upon the facts being brought out and called to its attention, dismiss the action for want of jurisdiction. "(Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Anglo-American Provision Co. v. Davis Provision Co., 169 id. 506; Hoes v. N.Y., N. H. & H. R. R. Co., 173 id. 441.)

In the Robinson case the court, passing upon asimilar question, *642said: “ An action by a non-resident plaintiff against a foreign corporation can be maintained only in- the cases specified, and in no case for a cause of action which arose outside of the State limits. * * * Jurisdiction of the action cannot be conferred upon the court by any consent or stipulation of the parties. The objection to the jurisdiction in such ease may be taken at any stage of the, action, and the court may, ex mero motu, at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action.”

. The undisputed facts established at the trial show that this was an action in which jurisdiction could not be acquired, and the trial court, therefore, erred in denying the motion to dismiss the complaint.

It follows that the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment and order reversed, .with costs, and complaint dismissed, .with costs.