
    Horace Belden, Appellant, v. George Wilkinson and William Millington, as Trustees under the Last Will and Testament of Frank Wilkinson, Deceased, Respondents.
    
      Supreme Court—jurisdiction of, over an action by a resident of Connecticut against testamentary trustees resident in England upon a contract with their testator for-the sale of land in Connecticut.. '
    
    The Supreme Court of the State of New York has jurisdiction of an action brought by a resident of the State of Connecticut against trustees under the will of a resident of' England, of which country the trustees are" also residents,, to recover the balance- unpaid upon a contract entered into between the plaintiff and the testator, by which the latter agreed to purchase land situate in the State of Connecticut, the possession of which land passed to the trustees under the will.
    . Appeal "by the plaintiff, Horace Belden, from a final judgment of the Supreme Court in -favor of the defendants, entered in the office of the clerk of the county of New York on the 24tli day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term sustaining a demurrer to the plaintiff’s amended complaint and dismissing the" complaint.
    
      Henry T. Fay, for the appellant.
    
      James Dunne, for the respondents.
   Rumsey, J.:

The plaintiff, is a resident of the State of Connecticut. The defendants, who are sued as trustees under the last will and testament of Frank .Wilkinson, deceased, are residents of England, of which country Wilkinson, their testator, was also a resident.

The complaint alleges that the plaintiff agreed to sell to Wilkinson and he agreed to buy a piece of land in the State of Connecticut, of which Wilkinson took' possession, and that a portion of the purchase price was still unpaid. It alleges-the death of Wilkinson, the appointment of the defendants'as his executors and trustees, and that they as trustees are in possession of these premises, and contains-further allegations by which it is sought to make the defendants as .trustees liable for the unpaid purchase money.

The defendants demurred to" the complaint upon the ground that the court lias no jurisdiction of the persons of the defendants, and no jurisdiction of the subject-matter of the action. At the Special Term the defendants had judgment upon the demurrer, from which this appeal is taken.

No question-is.raised.as to the sufficiency of the allegations of the complaint to constitute a cause of action. Nor is there any claim that there is a defect of parties defendant. Upon these two points the demurrer admits that the complaint is sufficient, and that the plaintiff would be entitled to recover if the. objections stated by the defendants in the demurrer are npt well founded.

The objection, that the court has no jurisdiction of - the persons of the defendants, does not mean that a proper service of the summons has not been made upon them, for such a defect, if it exists, can only be taken advantage of on motion. (Nones v. Hope Mut. Life Ins. Co., 8 Barb. 541.)

That ground of demurrer, raises only the question whether the defendants are such persons as can be. subjected to the process and jurisdiction of the court. (Ogdensburgh, etc., R. R. Co. v. Vermont, etc., R. R. Co., 16 Abb. Pr. [N. S.] 249.)

The defendants here are not sought to be subjected to the process .of the court because of their status as foreign executors, but as trustees under the last will of Wilkinson. As such they, became invested with the title to this real estate by virtue of the will alone and not because of the decree of any court. (Newton v. Bronson, 13 N. Y. 587, 593; Conklin v. Egerton, 21 Wend. 430, 436.)

As trustees under the will, taking title to the estate by virtue of the will, they stand in precisely the same ■ situation as any other grantee of Wilkinson ; and it hardly needs the citation of authorities to show that if the plaintiff had a cause of action either at law or equity, against a grantee of Wilkinson arising out of the possession of this land, he could-assert it in the courts of this State if the defendants were found within the jurisdiction. (Cleveland v. Burrill, 25 Barb. 532; Smith v. Crocker, 14 App. Div. 245; Furbush v. Nye, 17 id. 325; Furbush v. Clarkson, Id. 327.)

The learned counsel for the respondents cites many cases in which it has been held that, unless for special reasons, non-resident foreigners should not be permitted the use of our courts to redress wrongs committed within their own territory or to enforce contracts made therein. But these cases were either cases where the action was brought by - one non-resident' against another non-resident ,to recover--damages'for a tort, or. where it was clearly apparent that the courts of this State could not do justice to the parties because of the-special facts of the particular- case.It is. not the- rule .that the courts of this State will not take jurisdiction of an action of contract unless ¡special reasons are found for their doing'so, although that may.be said to be the rule in regard to actions of .torts. (Burdick v. Freeman, 46 Hun, 138; affd., 120 N. Y. 420.) But as in-actions on contract the rule is precisely the other way. Our courts-will ordinarily ¡entertain such ah action unless special reasons are shown why it should not be done.

There can peno doubt either that the court has jurisdiction, of the subject-matter. . The action..was brought to recover a sum of money claimed to be due to the plaintiff from'the defendants Of such an action the Supreme Oourt -always- has had. jurisdiction It must- be remembered that the.-qiiestiO'n of the jurisdiction '.of- the subject-matter presented by this demurrer has nothing .to do' -with, the question whether the allegations of the complaint set out a good cause of action upon a subject of which jurisdiction exists. “ Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent ■upon the- state of facts which may appear in a particular casé, or the ultimate existence of a good cause of action, in the plaintiff therein.”' (Hunt v. Hunt, 72 N. Y. 217.)

For these reasons the demurrer was not well taken,, and the judgment entered thereupon must be reversed - and)-judgment given to-' the plaintiff, with costs, with leave to - the defendants to withdraw the'demurrer and answer upon the payment of costs in. this, court and the court below-

Van. Brunt, P. J., Barrett, ■ Patterson and O’Brien, JJ-, concurred. "

Judgment reversed and judgment ordered for' the plaintiff, with, costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this' court and in the court below.  