26 Abb. N. Cas. 235 | The Superior Court of New York City | 1891
The court of appeals held in Wheelock v. Lee (74 N. Y. 495 ; s. c., 5 Abb. N. C. 80), that the jurisdiction of a superior city court was limited to cases in which the cause of action arose within its territorial limits, and cases in which the subject of the action was situated, or the party proceeded against resided or was served with process within those limits, and that some one or more of these elements of locality must exist to ■confer upon the court jurisdiction of the same. Judge Raparlo, who wrote the opinion, then proceeds to say: “ It follows that where none of them exist, a mere appearance does not preclude the defendant from taking the objection. Where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. Its omission is not cured by an appearance,
In the case now before me the cause of action did not arise in the city of New York, the subject matter of the action is not situated within, and the parties proceeded against do not reside, nor were they served within the city of New York. In Davidsburgh v. The Knickerbocker Life Ins. Co. (90 N. Y. 526), the court of appeals said that when the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants; that the-court could not acquire jurisdiction by consent, and might, whenever its attention was called to the matter, refuse to exceed the powers conferred upon it by statute.
.The motion to continue the injunction is denied, and the injunction hereto issued is vacated, with costs.