Robinson v. Oceanic Steam Navigation Co.

1 N.Y.S. 418 | The Superior Court of the City of New York and Buffalo | 1888

Sedgwick, J.

On the motion below, it appeared clearly, that the plaintiff was a non-resident of this state; that the defendant was a foreign corporation, and that the cause of action did nob arise within this state. No court of this state had jurisdiction of the action. Section 1780, Code Civil Proc. We must follow the case of Brooks v. Construction Co., 64 How. Pr. 364, that decides that the court is not in possession of jurisdiction, against the force of the statute, when, as here, the. defendant has not declared in his answer that there is no jurisdiction, and that a waiver of the defense of no jurisdiction because of non-residence in the city is not a waiver of the objections that are grounded upon non-residence in the state. The learned counsel for respondent contends, however, that the plaintiff, although otherwise a non-resident of this state, became, for the purposes of this action, a resident of the state by force of the letters of administration granted to him in this county. I do not recognize the proposition to be valid. The non-residence of the plaintiff was determined by the existence of certain facts before letters were issued to him. By the statute, such letters may be issued to a non-resident. The letters did not destroy any of the facts which made him a nonresident. After the letters were issued, he remained a non-resident, and ever since has been a non-resident. While it is certain that the cause of action alleged is not local and is transitory, that consideration does not take the case out of the 1780th section of the Code, which makes a condition precedent of jurisdiction that the cause of action should arise within this state. A transitory cause may arise within any state. This was a transitory cause that arose without the state. The action was not for damages to the intestate for the breach of a supposed contract with her to carry her safely, etc. The only demand of damages in the complaint is for such as resulted in her death to the next of kin. The action was in tort, under Lord Campbell’s act. I am of opinion that the attention of the court may be turned, at any stage of an action, to its want of jurisdiction, like the want here; and it may then declare to the parties that for that reason the proceedings, from the beginning, had no legal efficacy, and that no further proceedings should be taken. This may be competently done by setting aside the summons, and all that followed.

It does not appear that granting the motion would have violated section 2, art. 4, Const. IT. S., whicii provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. ” Ho action of a judge can confer power upon a court when the state has not given it. The court can only ascertain what j urisdietion has been given. Any supposed neglect of a state to establish courts of sufficent jurisdiction cannot be remedied by the action of a judge or court. The case of Popfinger v. Yutte, 102 N. Y. 42, 6 N. E. Rep. 259, is confined to jurisdictional defects mentioned in section 263 of the Code. I am of opinion that the order appealed from should be reversed, and that the motion should be granted, with $10 costs.

Freedman and Tritax, JJ., concur.