
    John Robinson, as Administrator, etc., App’lt, v. The Ocean Steam Navigation Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 29, 1889.)
    
    Jurisdiction—Non-resident plaintiff—Foreign corporation defendant—Code of Civil Procedube, § 1780.
    No court of this state has jurisdiction of an action where the plaintiff is a non-resident, the defendant, a foreign corporation, and the cause of action did not arise within this state.
    
      
      Thos. P. Wickes, for app’lt; Lawrence Godkin, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 871; see 16 N. Y. State Rep., 583.
    
   Earl, J.

The plaintiff, as administrator of Jane Lingard Robinson, deceased, commenced this action in the New York superior court to recover damages against .the defendant, a foreign corporation, for wrongfully and negligently causing the death of his intestate. In the complaint the death is alleged to have been caused upon the ocean within the territorial limits of the United Kingdom of Great Britain and Ireland by. a collision between two of the defendant’s vessels, upon one of which the deceased was a passenger. This action is based upon the English statute, called Lord Campbell’s Act, passed in 1846, which has been substantially re-enacted in this state. The defendant appeared in the action, interposed an answer to the complaint and noticed the cause for trial. Afterward it made a motion that the summons be vacated and the complaint dismissed on the ground that the court did riot have jurisdiction of the action. That motion was" denied at the special term, arid from the order there made the defendant appealed to the general term, where the order was reversed and the motion granted, and the plaintiff then appealed to this court.

It appeared upon the motion, and it is an undisputed fact, that the residence of the intestate at the time of her death was at Fall- River, in the state of Massachusetts, and that the plaintiff was and is a resident of the saíne place, and that he was appointed administrator by the surrogate of the county of New York. The claim of the defendant is that as the plaintiff was a non-resident and the defendant was a foreign corporation, and the cause _ of action did not arise within this state, the court had no jurisdiction of the action under section 1780 of the Code. The plaintiff contends that although he personally resided in the state of Massachusetts, within the meaning of the section referred to he was. a resident of this state because he was here appointed administrator. But he was nevertheless personally a nonresident. ' Such a person may, under the statutes, be appointed an administrator, but he does not thereby become in any sense a resident of the state. Coal Company v. Blatchford, 11 Wall., 172; Matter of Page, 107 N. Y., 266; 11 N. Y. State Rep., 777. The case of Leonard v. Steam Navigation Co. (84 N. Y., 48), is not an authority upon this point for the plaintiff, as in that case th,e defendant was a domestic corporation.

It is true that the plaintiff’s cause of action is transitory, and that a plaintiff may bring a suit upon such a cause of action wherever he may be, provided he can find a court which has jurisdiction of the action and can obtain jurisdiction of the defendant. But a cause of action, even if trailsitory, must always arise somewhere, and .this cause of action arose where the tort was committed which caused the death of the plaintiff’s intestate. That this is a cause of action for a tort is too clear for reasonable dispute. It exists only by virtue of the statute referred to, and is based entirely upon the negligence and tortious conduct attributable to the defendant. We therefore have a case where the plaintiff is a non-resident, the defendant a foreign corporation, and the cause of action did not arise within this state; and therefore no court within this state has jurisdiction of' the action.

Under the Revised Statutes, so far as we are able to discover, there was no provision for an action in the courts of this state by a non-resident against a foreign corporation, and the only provision for suits against foreign corporations was that found in 2 Revised Statutes 459, section 15, where it is provided that suits brought in the supreme court by a resident of this state against any corporation created by or under the laws of any other state, government of country, for the recovery of any debt, claim or demánd may be commenced by attachment. That provision remained until 1849, when by section 107 of the laws of that year, it was amended so as to read as follows: “ Suits may bfe brought in the supreme court, in the superior court of the city of New York and in the court of common pleas in and for the city and county of New York, against any corporation created by or under the laws of any other state, government or country, for the recovery of any debt ór damages, whether liquidated or not, arising upon contract made, executed or delivered within this state, or upon any cause of action arising therein. Such suits may be commenced by complaint and summons together with an attachment as provided by law,, and such complaint and summons maybe served as provided by sections 113 and 114 of the Code of Procedure.”

Under the section as thus amended, any plaintiff could commence an action against a foreign cdrporation upon any cause of action arising within this state. In the same year section 427, was added to the Code of Procedure, providing as follows: “An action against a corporation, created by or’ under the laws of any other state, government or country, may be brought in the supreme court, the superior court of the city New York, or the court of common pleas for the city and county of New York, in the following cases:

First. By a resident of this state for any cause of action.

Second. By a plaintiff not a resident of this state, when, the cause of action shall have arisen, or the subject of the action shall be situated within the state.”

This section did not assume to define all the cases in which actions could be brought against foreign corporations, and did not absolutely limit the power and jurisdiction of the courts mentioned. It specified the cases in which foreign corporations could compulsorily by service of process in the mode prescribed by law be subjected to the jurisdiction of the courts. It did not deprive the courts of any of this-general jurisdiction.

The supreme court being a court of general jurisdiction, could, independently of any statute, entertain actions, against foreign corporations. Such corporations could, by the common law, always be sued in this state by any plaintiff for any cause of action, provided jurisdiction could be obtained of their persons (Morawetz on Corporations, § 977, and cases cited in note), and so it was held construing this section of the Code in McCormick v. Pennsylvania R. R. Co. (49 N. Y., 303). There the action was brought by a non-resident plaintiff against a foreign corporation for a cause, of action which arose without the state, and it was held that the court could entertain the action because the defendant had appeared generally in the action and submitted itself to the jurisdiction of the court, th.e cause of action being one of a class coming within its jurisdiction. Thus the law remained until, the Code of Civil Procedure was enacted, section 1780 of which provides as follows:.

“An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation or by a non-resident in one of the following cases only:

“First. Where the action is brought to recover damages for the breach of a contract made within the state, or relating to property situated within the state, at the time of the making thereof.

“Second. Where it is brought to recover real, property situated within the state, or a chattel which is replevied within the state.

“Third. Where the cause of action arose within the state, except where the object of the action is to affect the title to ' real property situated without the state.”

Under this section a resident of this state or a domestic corporation can maintain an action against a foreign corporation for any cause of action, no matter where it arose. But 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. The jurisdiction of the courts is defined and limited and absolutely confined to the cases specified; • and the word “only” may have been and probably was inserted after the words, “following cases,” to change the rule as announced in McCormick v. Penn. Railroad Company.

The discrimination between resident and non-resident plaintiffs is probably based upon reasons of public policy, that our courts should not be vexed with litigations between non-resident parties over causes of action which arose outside of our territorial limits. Every rule of comity and of natural justice and of convenience is satisfied by giving redress in our courts to non-resident litigants when the cause of action arose or the subject-matter of the litigation is situated within this state.

It is not sufficient that a non-residunt plaintiff should by any service of process, or in any other way obtain jurisdiction of a foreign corporation, but before the action can be maintained in any court of this state there must also be jurisdiction of the subject-matter of the action. 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 a case 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. Cooley's Constitutional Limitations, 398; Davidsburgh v. Knickerbocker Life Insurance Company, 90 N. Y., 526.

In the case cited, Danforth, J., said: “There are no doubt many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision; but where the state prescribes condition under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case the particular condition or status of the defendant is made a' jurisdictional fact.”

It is claimed, however, that section 1780 of the Code, so far as it discriminates between resident and non-resident plaintiffs is repugnant to section 2 of article 4 of the federal constitution, wherein it is provided that “the citizens of each state shall be entitled to all the privileges and immunities of citizes in the several states.” This section makes no discrimination between citizens, but between residents and non-residents. Without attempting to define the full scope of that constitutional provision, it is sufficient to say that it has no application to a case like this, and there are numerous decisions to that effect. Adams v. Penn Bank of Pittsburg, 35 Hun, 393; Frost v. Brisbin, 19 Wend., 11; Lemmon v. People, 20 N. Y., 562; Haney v. Marshall, 9 Md., 194; Campbell v. Morris, 3 Harris & McHenry (Md. R.), 535; Chemung Bank v. Lowery, 93 U. S., 72; McCready v. Virginia, 94 id., 396; Missouri v. Lewis, 101 id., 22.

A construction of the constitutional limitation which would apply it to such a case as this would strike down a large body of laws which have existed in all the states from the-foundation of the government, making some discrimination between residents and non-residents in legal proceedings and other matters.

The order should, therefore, be affirmed, with costs.

All concur.  