216 A.D. 337 | N.Y. App. Div. | 1926
The aefendant, Transmarine Corporation, is a corporation organized and existing under the laws of the State of New Jersey, with its principal office in the State of New Jersey. Its only office or place of business in the State of New York is in the county of New York.
The respondent, in support of the order, cites Wienbroer v. U. S. Shipping Board E. F. Corp. (299 Fed. 972) and Caceres v. U. S. Shipping Board E. F. Corp. (Id. 968), but I do not consider those decisions binding upon this court. (Tammis v. Panama Railroad Co., 202 App. Div. 226, 234; Lynott v. Great,Lakes Transit Corporation, Id. 613, 619.) The question presented has, however, been passed upon by courts of this State, whose decisions I regard as binding, and they have reached their conclusions by reasoning
The question as to the jurisdiction of the courts of this State
The decision in the Tammis Case (supra) granted a new trial and upon that trial a verdict was rendered in favor of the plaintiff and upon appeal the judgment entered thereon was reversed (208 App. Div. 706) and upon appeal to the Court of Appeals the judgment of this court was affirmed and judgment absolute entered against the plaintiff (238 N. Y. 632). An application was then made to the United States Supreme Court for a writ of certiorari to review, and the application was denied. (266 U. S. 627.)
In Patrone v. Howlett (supra) the Court of Appeals said: “ Jurisdiction * * * relates to the subject-matter of the action and cannot be conferred by consent.” So I think it is fair to assume that the question of jurisdiction was passed upon by the Supreme Court of the United States.
The respondent contends that a different question is presented now from that which was before this court in the Tammis case, and it bases this contention upon the fact that in the Tammis case the United States district in which the action was brought was separated from the district in which the defendant had its principal office by a county line, while in this case the two districts are divided by a State line. In the division of the Federal territory into districts for the purpose of fixing the jurisdiction of the District Courts I do not understand that any distinction is made between districts divided by county lines and those divided by State lines. (See United States Judicial Code [36 U. S. Stat. at Large, 1101], §§ 51, 52. See, also, 42 id. 849, chap. 345, and 43 id. 1264, chap. 526, amdg. said § 51.) In the Tammis case Mr. Justice Kelly said: “ When in the last clause of section 33 of the Merchant Marine Act of 1920, Congress said: ‘ Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located/ it seems to me that this was a regulation providing for the venue of such actions when brought in the District Court of the United States. And as this case is to be
In the Lynott case (p. 619) Mr. Justice Sears said it applied where the jurisdiction of the United States court is invoked, and that the jurisdiction of the State courts otherwise remains the same to apply the common-law remedy. (Affd., without opinion, 234 N. Y. 626.)
In Patrone v. Howlett (supra) the Court of Appeals said: “It provides for the venue, when the action is brought in the United States court, and probably that is as far as it goes in defining jurisdiction. We have in effect so held in the Lynott case.”
So far as the Jones Act affects jurisdiction we are, I think, bound by controlling authorities.
The order dismissing the complaint should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Kelly, P. J., Manning, Young and Kapper, JJ., ‘concur.
Order dismissing complaint reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
See, also, Christensen v. Morse Dry Dock & Repair Co. (216 App. Div. 274, 277 et seq.).— [Rep.