
    BRAUNECK v. KNICKERBOCKER LIFE INS. CO.
    
      City Court of Brooklyn; General Term,
    April, 1876.
    Jurisdiction of Superior City Courts.—City Court of Brooklyn.
    A corporation not established or having its general business in the city of Brooklyn, cannot be sued in the city" court on a cause of action which did not arise therein.
    
      Although, an individual defendant who, in such a case, answers solely to the merits and goes to trial without objection, may be deemed to have submitted to the jurisdiction, a corporation may raise the objection for the first time at the trial.
    
    Appeal from a judgment.
    Margaretlia Brauneck sued defendants to recover damages, to the amount of life insurance premiums she alleged she was induced to pay them upon a policy, by fraud. The complaint contained no averment that the cause of action arose in Kings county, or that defendants transacted their general business in the city of Brooklyn, or were established by law therein. The answer related solely to the merits, and made no allegation or objection touching the jurisdiction.
    At the trial, after plaintiff had given evidence showing that the policy was negotiated and issued in New York, the defendants moved to dismiss the complaint on the ground of want of jurisdiction, as above indicated. The court granted the motion. Plaintiff appealed.
    
      Henry Wehle, for plaintiff and appellant.
    I. This court had jurisdiction of the subject matter, if it properly acquired jurisdiction of the person of the defendant (1 L. 1870, p. 1045, c. 470, § 3, subd. 5).
    II. Voluntary appearance of defendant confers jurisdiction of the person where it exists as to the subject matter (Code, § 139; McCormick v. Penn. R. R. Co., 49 N. Y. 303; Paulding v. Hudson Manufacturing Co., 2 E. D. Smith, 38; Mahanay v. Penman, 1 Abb. Pr. 34; Carpentier v. Minturn, 65 Barb. 293).
    III. Defendant cannot raise the point of jurisdiction at this stage of the case (Bidwell v. Astor Ins. Co., 16 N. Y. 263; Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S. 346, and 53 N. Y. 450).
    
      
      H. W. Johnson (Johnson & Cantine), for defendants and respondents.
    I. The jurisdiction and powers of this court being defined by statute, it can exercise only such as is expressly conferred.
    II. The act of 1872 expressly limits its jurisdiction in actions against corporations (2 L. 1872, p. 1642, c. 688).
    III. Plaintiff’s proof clearly showed that the court had no jurisdiction.
    IV. Consent and an appearance cannot confer jurisdiction over the subject matter of an action, upon a court of limited jurisdiction (Dudley v. Mayhew, 3 N. Y. 9; Coffin v. Tracy, 3 Caines, 129 ; Davis v. Packard, 7 Pet. 276; Harriott v. N. J. R. & T. Co., 2 Hilt. 262; Landers v. S. I. R. R. Co., above cited).
    
    
      
       See also Gibbs v. Queen Ins. Co., 63 N. Y. 114.
    
   Neilson, Ch. J.

The complaint was dismissed at the close of the plaintiff’s case on the grounds stated.

The defendant had no place of business in this city. The cause of action did not arise here, nor was it suggested that the summons was or could have been served within our territorial limits. We therefore concur \fith the learned judge who presided at the trial, that the court had no jurisdiction of the case.

The ruling in Landers v. The Staten Island Railroad Company applies. It is true that this action was, in its nature, transitory. It is for a wrong, but so also was the Landers case for a wrong—the cause of action for damages suffered by the negligence of the agents of the railroad company. It rested with this plaintiff to show that this was the proper forum by reason of the defendant’s place of business or of the service of process ; the question of jurisdiction not depending upon the form of the pleading, or upon any imputed consent of the defendants.

Under the statute and the doctrine of the Landers case, we have never faltered in upholding our jurisdiction where that seemed proper; but we have found it necessary to distinguish the case of a corporation defendant, located and transacting business in some other section of the State, from the case of a citizen defendant. The citizen, capable of being served here, but, in fact, served elsewhere, might make a special application for relief, take the objection in the answer, or he might elect to go to trial on the merits. In cases where such an election had been made, our uniform practice has been to affirm it. On the trials of issues of fact going to the merits simply, we have refused to allow the defendants to raise the question of jurisdiction.

But our power to impute such an election in a case of this character, may well be doubted. How is a corporation, its location, business and property elsewhere, impleaded upon a claim not arising here, to be served with our process ? There is no possible mode of service. In the Landers case the objection was taken in the answer, but the ruling has special application to a defendant improperly brought here in a corporate capacity. The principle illustrated in that case, and the provisions of the statute, would be offended by our assuming to have jurisdiction of these defendants, and of the claim sought to be enforced in this action.

The judgment must be affirmed with costs.

McCtte, J., concurred.  