
    At General Term.
    In the Matter of the Petition of JOSÉ CARLOS TRACY, Petitioner, Appellant ; Plaintiff, in action of AMSINCK and GOSSLER v. ROQUE HERNANDEZ and JOSÉ CARLOS TRACY, sued as JOSEPH C. TRACY, Respondents.
    .Jurisdiction op State Courts. ,
    1. Public ministers members of a firm, the other members of which are not such.
    
      (a) State courts have no jurisdiction over an action
    AGAINST THE FIRM UPON A FIRM LIABILITY.
    1. Won-service of summons on the members who are public ministers : effect of.
    
    1. This, although intentional, will not give jurisdiction over the action.
    3. Want of jurisdiction in such eases, how mailed of.
    
    By petition of the public minister for an order dismissing the complaint.
    Before Curtis, Ch. J., Van Vorst and Speir, JJ.
    
      Decided February 2, 1880.
    An action was brought by Gustav Amsinck and -Gustav H. Gossler against two defendants, as partners under the firm name of Hernandez & Tracy, upon an indorsement, in their firm name, of a bill of exchange. The summons was served upon the defendant Hernandez only, notwithstanding the other defendant, 'Tracy, resides in the city of New York.
    At the time of the commencement of the action, the «defendant Tracy was, and still is, the public minister 
      of the Republic of Peru in the United States. Tracy-presented his petition to the court, setting forth these facts, and moved for a dismissal of the complaint, on the ground that this court has no jurisdiction. The motion was denied, and an appeal was taken by the petitioner.
    
      Luke A. Lockwood, attorney, and of counsel, for appellant:
    I. This court has no jurisdiction. Paragraph 8 of section 711 of the United States Revised Statutes declares that the courts of the United States have exclusive jurisdiction of all suits or proceedings against ambassadors and other public ministers, &c. Section 687 places exclusive jurisdiction of such actions in the United States supreme court. Section 4,063 declares all writs and process whereby the goods, &c., of a public minister are seized or attached, void. Section 4,064 punishes by imprisonment and fine every person, party, or attorney or officer, who obtains or prosecutes or executes such writs.
    II. Exemption from being sued in a State court cannot be renounced by a public minister, because it is not his personal privilege, but the right and privilege of the United States (Valerino v. Thompson, 7 N. Y. 576, and cases there cited. See Davis v. Packard, 7 Pet. 276).
    III. The difficulty is not obviated by not serving the partner who is a public minister. The action is nevertheless against him, and the relief prayed for is a judgment against him ; and the judgment to be entered in the action, under the State' law, is against his joint property, and the execution to be issued thereon would be a violation of sections 4,063 and 4,064. «
    IY. The petitioner had a right, under the law of this State, being a defendant upon a joint contract, to appear and defend said action, notwithstanding he was not served with a summons (Higgins v. Rockwell, 2 Duer, 650 ; Rogers v. McLean, 11 Abb. Pr. 440). But by reason of inability to waive his exemption by law, he properly applied by petition, respectfully bringing the fact of action brought, and no jurisdiction, to the knowledge of the court.
    
      Y. The court will dismiss such actions at any stage when the fact of no jurisdiction is brought to its knowledge (Valerino v. Thompson, 7 N. Y. 586 ; Taaks v. Schmidt, 19 How. Pr. 413 ; Griffin v. Dominques, 2 Duer, 658).
    VI. The court has no jurisdiction in an action upon joint contract when one of the defendants is a public minister, consul, &c. (Valerino v. Thompson, supra; Naylor v. Hoffman, 22 How. Pr. 516; Rock River Bank v. Hoffman, 22 Id. 257).
    VII. The order should be reversed with costs, and as the plaintiffs had due notice before suit brought, the complaint should be dismissed, with costs.
    
      Martin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel, for respondent:
    I. The privilege which prohibits courts from exercising jurisdiction over foreign ministers duly accredited to the government of the United States, does not extend to their partners in business. The privilege is personal and is limited to the ambassador and his servants, and does not extend to others who happen to be connected by business ties; if it were otherwise, a foreign minister who happened to have - a dozen partners might shield them all from the payment of their just debts by insisting on his privilege. No authority can be found which justifies the course taken by the petitioner. The privilege has never been extended, so far as counsel for the plaintiffs have been able to ascertain, beyond the foreign minister himself (4 Blacks. Comm. 
      254 ; Magdalena Co. v. Martin, 2 E. & E. 94 ; Wheat. 295 ; Wheat. [Lawrence ed.] 394). The mere fact that the petitioner is joined as, a defendant in the action gives him no right to come in by a voluntary independent petition and endeavor to have the action dismissed as against his partner. The petitioner, although joined as a defendant,- is not sued. No process has been served against him. No action can be said to be maintained against him until he is brought in by process. The petitioner is undisturbed in his person, and would not know that such an action existed unless so informed by the defendant Hernandez, and clearly he has no cause of complaint until the plaintiffs have endeavored to coerce him within the jurisdiction of the court.
    II. The petitioner has no standing in court. There is no foundation for such a proceeding as he has initiated. His position is simply this. An action having been commenced against his partner, Hernandez, in which he is joined as a defendant, he chooses to come into court with another proceeding, and demands that the action be dismissed. Such a proceeding is unau thorized by the Code or by any practice. It is an unwarranted assumption for the petitioner to volunteer to come into court and demand that certain proceedings be dismissed upon his application. If he have any remedy, it must be in the action in which Hernandez has been sued. But these proceedings are in no way connected with the action. It is an attempt on the part of the petitioner to interfere with a process of this court, and to dictate to this court who shall and who shall not be sued. It is respectfully submitted that such a proceeding cannot be tolerated, and that it is without foundation in practice or precedent.
   By the Court.—Van Vorst, J.

The courts of the United States have jurisdiction, exclusive of the courts of this State, of all suits or proceedings against ambassadors or other public ministers (U. S. Rev. Stat. §§ 687, 711, subd. 8).

Exemption from being sued in a State court cannot be renounced by a public minister, because it is not his personal privilege, but the right and privilege of the United States (Valerino v. Thompson, 7 N. Y. 576; Davis v. Packard, 7 Pet. 276 ; St. Luke’s Hospital v. Barclay, 3 Blatchf. 259). The difficulty is not overcome by an intentional omission to serve, as is the case in this instance, the partner named as a defendant, who is a public minister. The action is, nevertheless,. in substance against him ; a judgment is demanded against the defendants, and, when entered, the judgment, under the laws of this State, may be enforced against property, which the defendant, not served, owns jointly with his co-defendant (Code, § 136).

Under the execution, which- the plaintiff could issue and enforce upon such judgment, the goods and chattels of the defendant Tracy, owned by him jointly with his co-defendant, could be seized. Such, execution would be a violation of the statutes of the United States (§§ 4,063, 4,064).

By reason of his inability to waive his exemption, the defendant cannot voluntarily appear and defend this action, as he might, but for this exemption.

In this condition, unless he can otherwise intervene, he may be subject to the hardship of seeing his goods sold to answer a claim against his firm, against which he may have a good defense.

It would seem, therefore, that the only remedy open to the defendant is to call the attention of the court to the subject by petition or motion, as he has done, and it is doubtless the duty of the court to dismiss an action of which it has no jurisdiction (Taaks v. Schmidt, 19 How. Pr. 413; Griffin v. Dominguez, 2 Duer, 656).

The order appealed from is reversed, with costs and disbursements of this appeal.

Curtis, Ch. J., and Speir, J., concurred.  