
    FREDERICK H. JOHNSON, Respondent, v. THE ADAMS TOBACCO COMPANY, Appellant.
    
      Want of jurisdiction- in- the court — how taken advantage of.
    
    Upon an appeal from an order denying a motion to dismiss the summons and complaint, on the ground that both the plaintiff' and defendant were non-residents, and that the subject matter of the action was not situated, nor did the cause of action originate in this State.
    
      Held; that the question as to the jurisdiction of the court could not be tried on a motion.
    That if the w«*ut of jurisdiction appeared on the face of the complaint, it should be taken advantage of by demurrer; and if it did not so appear it should be set up in the answer.
    Appeal from an order denying defendant's motion to dismiss the summons and complaint in this action, on the ground that the plaintiff was a 11011-resident of this State, while the defendant is a foreign corporation, and that the subject matter of the action is not situated, nor did the cause of action arise in this State.
    
      George De Forest Lord, for the appellant.
    
      J. J. Thompson, for the respondent.
   Davis, P. J.:

This motion was rightly disposed of below for two reasons: First, the cause of action arose in this State, although the contract was made in Canada, yet it was to be performed by its terms in Canada or in the United States. It was, in fact, mostly performed by the plaintiff in the city-of Now York. By the resolution to terminate the employment of the plaintiff, it is provided that the engagement of the plaintiff with the defendants should terminate upon the receipt of a copy of the resolution by the latter. A copy of the resolution was received by the plaintiff at the city of New York. By the terms of the resolution, it thereupon operated as his discharge and consequently as a breach of the contract at this city. The cause of action arose upon such breach, and therefore may be properly said to have arisen in the city of New York.

But we think, also, the question of jurisdiction should not be permitted to be tried upon affidavits in the manner attempted in this case. Under the provisions of the Code, if a want of jurisdiction appears upon the face of the complaint, it may be taken advantage of by demurrer, if it fails so to appear, by answer; (Code of Civil Procedure, §§ 488, 498.) And we think the proper remedy in this case, if the appellants desire to raise the question, is to do so by answer.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady. J., concurred.

Present- — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.  