
    Manning, Maxwell & Moore, Inc., Appellant, v. The Canadian Locomotive Company, Ltd., Respondent.
    First Department,
    July 15, 1907.
    Practice—motion to set aside service—jurisdiction of court not' ' determined.
    When the jurisdiction of the court depends upon facts in dispute, the question will not be determined upon a motion to set aside service of the summons and complaint.
    If the complaint on its face shows lack of jurisdiction, the proper practice is to demur. If the defect does not appear in the complaint, the objection may be taken by answer. The jurisdiction of the court is not ordinarily determined on affidavits but by the pleadings or proof taken at trial.
    Appeal by the plaintiff, Manning, Maxwell & Moore, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county óf .New York on the 1st day of April, 1907, granting the defendant’s motion to vacate the service of the summons and complaint herein.
    
      John W. Sewing, for the appellant.
    
      Arthur Haviland, for the respondent.
   McLaughlin, J.:

. -This appeal is from an order-setting aside the service .'of a summons and complaint upon the ground, as appears from the opinion of the learned justice sitting at Special Term, that the contract sought to be. enforced was entered into bet ween, two foreign corporations outside of the State of New York, .and for that reason the Supreme Court of the State of New York has no jurisdiction over the subject-m,atter of' the action.

The complaint alleges that the 'plaintiff is a foréign corporation, organized and existing under and by virtue of the laws of the State of New Jersey ; that it has complied with'the laws of the State of New York by paying the tax and obtaining the certificate required authorizing it to there do business; that on or about the 12th of April, 1904, it entered into a contract with the defendant by which the plaintiff thereafter delivered to the defendant certain machinery, for'which it agreed to pay $7,000, and in addition; by way of a bonus or premium by reason of -the machinery having been delivered prior to the agreed- date, defendant became obligated to pay the further sum of $1,050 ;- that, defendant has failed and neglected to pay such sum, except the sum of $3,500, paid to apply thereon, and the balance1 of $4,550 is now due, for which sum judgment is demanded, with interest,- from a date specified.

There is no allegation in the complaint as to whether the defendant is a foreign or domestic.corporation. After the summons and complaint had been served upon the general- agent and principal executive officer of the defendant, counsel for the defendant appeared specially in the action for thé sole purpose1 of making a motion” to set aside such service. °.Subsequently a1 motion was made, the moving papers setting out that the plaintiff was a foreign corporation, and -other statements of facts were set forth which tended to -show that the action is not one of those which one foreign corporation may maintain against another foreign corporation in this State as provided by section 1780 of the Code of Civil Procedure: '

1 The answering. affidavits used upon' the motion tended to show that the cause of action, arose within the State and, therefore, the action could be maintained in this State.

The- conclusion at which I have arrived renders it unnecessary to determine' whether the action can be here maintained or not, because that question is not now before us. The only question which the' appeal brings up is whether the process was properly served. The Code of Civil Procedure provides how process may be served in this State upon a foreign corporation. It is by delivering a copy of the summons to one of certain officers of the corporation, or, if it lacks either of those officers, to the officer performing corresponding functions under another name. ' (§ 432.) The process here was served upon the general agent and principal executive officer. The service, therefore, was sufficient to give the court jurisdiction of the defendant. • Indeed, I do not understand that any claim is made that there was any defect in the service itself, but that the only' objection of the respondent to the service is that the court does not have jurisdiction of the subject-matter of .the action. Obviously, this question cannot be raised on a motion to set aside the service. If the complaint upon its face shows that fact, then the proper practice is to demur. (Id. § 488.) If it does not appear on the face of the complaint, then the objection may be taken by answer. (Id. § 498.) The legality and regularity of the service of the summons are the only questions to be considered. (Atlantic & Pacific Telegraph Co. v. B. & O. R. R. Co., 87 N. Y. 355; Mabon v. Ongley Electric Co., No. 2, 24 App. Div. 50.) Whether or not the court has jurisdiction of the subject-matter of an action'is ordinarily determined, not from affidavits, hut from the pleadings or proof taken at the trial. (Johnson v. Adams Tobacco Co., 14 Hun, 89.) If it clearly appeared that the court did not have jurisdiction of the subject-matter of the action, then it is possible the whole proceeding might be dismissed on a motion to set aside the service of the summons, but. that is not the regular way of raising the question of jurisdiction, nor does that fact here appear.

In this respect the case is distinguishable, from Grant v. Cananea Consolidated Copper Co. (117 App. Div. 576).

The order appealed from, therefore, must be reversed, with, ten dollars costs and disbursements, and the motion denied, .with ten dollars costs.

Ingraham and Houghton, JJ., concurred.

Clarke, J. (concurring):

I concur in the reversal solely -upon the ground that it is not clearly shown that the cause of action is riot one of those provided for in subdivisions 1 or 3 of section 1780 of the Code of Civil Procedure, upon which one foreign corporation may sue another within this State.'

Lambert, J.,. concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten- dollars costs. ' ': ' ■  