
    Parkhurst v. Rochester Lasting Mach. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    County Courts—Jurisdiction by Consent—Foreign Corporations.
    County courts, having no jurisdiction in actions against foreign corporations, cannot acquire it by the appearance of defendant and answer to the merits, since jurisdiction cannot be acquired by consent either of the subject-matter or of the action.
    Appeal from Monroe county court.
    Action by Emmons M. Parkhurst against the Rochester Lasting Machine Company. From a judgment for plaintiff, defendant appeals. Reversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      E. Van Voorhis, for appellant. Irving Paine, for respondent.
   Dwight, P. J.

The objection to the jurisdiction of the county court in an action against a foreign corporation, though taken for the first time on this appeal, must be fatal to the judgment. That the county court has, by the statutes which define its powers, no jurisdiction of such actions, is conceded. It is contended that in this case it obtained jurisdiction by the consent of the defendant, which appeared generally, and answered to the merits. The position is untenable. Consent may give jurisdiction of the person, but not of the subject-matter, nor of the action. The question in this case was not of jurisdiction of the person, but of the limitation of the power of the court. The court had no jurisdiction of the action, because it is denied jurisdiction of any action against a foreign corporation. In Burckle v. Eckhart, 3 N. Y. 133, Gardiner, J., says, at page 137: “The jurisdiction of courts is conferred by law, and in no case by consent of parties. When jurisdiction of the subject and of the person is regarded as a prerequisite of judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court, by a voluntary appearance. He may dispense with the service of process as he may waive any other personal privilege; but, when the defendant is in court as a party, the law gives jurisdiction of the person, without regard to the question whether his appearance was voluntary or compulsory. This is all that is meant by consent giving jurisdiction of the person. * * * The residence of the defendant, within the limits of the circuit, * * * is a jurisdictional fact, which must exist before the court can act at all, either by issuing process or accepting the appearance of the defendant. It is necessary to give jurisdiction of the cause, not the person. In such cases there can be no waiver.” See, also, Heenan v. Railroad Co., 34 Hun, 602; Davidsburg v. Insurance Co., 90 N. Y. 526. In the latter case, Danforth, J., says: “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 conditions under which a court may act, those conditions cannot be dispensed with by litigants. ” Still more must it be impossible for litigants to dispense with the rule which prohibits the court to act at all in a given case. The cases cited by counsel for the plaintiff were actions in the supreme court, whose jurisdiction of the action was unquestioned, and consent gave jurisdiction of the particular defendant. The county court has no jurisdiction of the cause of action in this case, because it has no jurisdiction of any cause of action, in any case, against a foreign corporation. The objection, which in this case appears on the face of the complaint, is fatal, not only to the judgment appealed from, but to the action. The judgment must be reversed, and the complaint dismissed.

Judgment appealed from reversed, and complaint dismissed, with costs. All concur.  