
    McIYOR a. McCABE.
    
      New York Superior Court; At Chambers,
    
    
      July, 1863.
    New York Superior Court.—Jurisdiction.—Action for Personal Injury.—Wrongs committed in a Foreign State.
    Except in so far as the place of trial in actions to recover damages for injuries to the person has been regulated by 2 Rev. Stat., 409, such actions are transitory, and triable in any county which the plaintiff may elect.
    The common-law jurisdiction of the New York Superior Court, except in its territorial limitation, is coequal with that of the Supreme Court; any action which is triable in the latter is triable in the former, provided the defendant resides, or is served with process, within the city of New York.
    
      The courts of general jurisdiction in this State have jurisdiction of actions between citizens of another State, for personal wrongs committed within the jurisdiction of another State.
    
    
      In an action between residents of the State of New Jersey, to recover damages for an injury to the plaintiff’s person, inflicted in that State, the defendant having been served with summons in the city of New York,—Held, that the New York Superior Court had jurisdiction, both of the subject-matter of the action, and of the defendant’s person.
    Motion to set aside an order of arrest.
    This action was brought by Annie Mclvor against John EL McCabe, to recover damages for injuries to the person of plaintiff. The alleged injuries were inflicted at Jersey City, in the State of New Jersey, where both the parties resided. The defendant had a place of business in the city of New York, where he was served with the summons. An order of arrest was issued, which the defendant now moved to set aside.
    
      Henry White and Richard H. Huntley, for the motion,
    relied on Moloney a. Dows (8 Abbotts’ Pr., 316), and cases there cited.
    
      Thomas Punphy and Edwin James, opposed.
    I. This court has jurisdiction of an action for injuries to the person committed in another State, in which the defendant resided at the time, and has not since changed his residence. Actions for personal injuries are of a transitory nature, and follow the person of the wrongdoer, and the action may be brought wherever the defendant is found,—“ et seqmmter forum rei,”— and the forum rei is wherever the defendant can be found. (Moysten a. Fabrigas, 1 Smith’s Lead. Cas., 679; Rafael a. Vereslest, 2 Black., 1055; 1 Chitt. Pl., 273; Glen a. Hodges, 9 Johns., 67; Gardner a. Thomas, 14 Ib., 134.)
    H. It is well settled that an action will lie in our courts for a personal tort committed by one citizen on another in a foreign country. (Lister a. Wright, 2 Hill, 320.)
    IH. The citizen of one State is a citizen of all the United States. Neither the States nor their citizens are foreign to each other in this respect. (U. S. Const., art. 4, § 2.)
    IY. The case of Moloney a. Dows (8 Abbotts’ Pr., 316) is not law. It is a mere nisi prius decision, and has not received the sanction of any other judge, and proceeded on a misapprehension of Lord Mansfield’s decision in Moysten a. Fabrigas.
    V. The defendant having a place of business in this city, and being served with process here, the court acquired jurisdiction.
    
      
       To the contrary, compare Molony a. Dows (8 Ante, 316); Armstrong a. Foote (11 lb., 384).
      In Way a. The Keyport and Middletown Point Steamboat Company (Supreme Court, First District; At Chambers, Sept., 1863), it was Held, that the courts of this State will not entertain jurisdiction to enjoin the business of a foreign corporation, where such injunction would practically suspend the corporate franchises.
      Motion to dissolve an injunction.
      This was an action by Thomas P. Way, Elsworth, Martin, and others, against the Keyport & Middletown Point Steamboat Co., and its individual directors and trustees. The plaintiffs were stockholders in the company, and sought to restrain the defendants from running their steamboat, the Matteawan, at a low rate oi fare, by which, as it was claimed, the company was losing $150' a day. The defendants were a corporation created under the laws of New Jersey. By those laws, a franchise was given to them to maintain a steamboat route between Key-port and New York. Their principal office business was at Keyport, New Jersey. Some time before the suit, on the supposition that the steamboat D. B. Martin was going to be used on another route, and probably by the Government, they sold it for $85,000 to Edward Elsworth, one of the plaintiffs. The defehdants claimed that Elsworth, in combination with Martin and some of the other stockholders, sought to coerce the defendants into a repurchase of the D. B. Martin by getting out this injunction, which they now sought to dissolve, and also by putting on the said steamboat as opposition to the defendants’ steamboat.
      The ground alleged by the plaintiffs, and on which they procured the injunction, was, that the defendants had put down the fare on their line after the D. B. Martin was put on as an opposition, so that it was impossible for two boats to live on that route; consequently, it was claimed by the plaintiffs that the defendants were wasting the property of the company, and that the majority of the stockholders dissented therefrom. To this it was replied: The association is an incorporated company by the laws of New Jersey. The majority of the stockholders approve of the defendants’ acts, and this suit is merely an attempt to coerce the defendants into repurchasing the opposition boat; that the alleged wasting of the plaintiffs’ property is occasioned by the acts of the plaintiffs themselves in putting on the said opposition, which they could at any moment put an end to by withdrawing their boat, and the defendants’ boat is a mail boat, and ought not to be stopped, as the consequences of stopping her would be much more serious than to run on the route.
      
        D. S; T. McMahon, for the motion.—I. The defendants cannot be impleaded in a bill in equity in a suit brought by some of its stockholders against it, setting up inequitable acts on the part of some of its directors, tending to a waste of its stock and asséts. The proper and the only remedy of the plaintiffs on the facts averred by them is either, 1. By a bill at the suit of the attorney-general in the nature of a quo wananto, seeking a revocation of the franchises of the company by abuses. {Code, §§ 429,430.) 2. By a private action at law by each stockholder against the directors for his own peculiar damage occasioned by the breach of the trust of the directors.
      II. It is quite plain that the Supreme Court of this State has no jurisdiction of a suit in the nature of a quo warranto over a foreign corporation. The only tribunal is the court having jurisdiction in the particular State wherein the company is incorporate^. The granting of an injunction against a corporation, restraining its operation, is in effect a proceeding which impeaches its franchises.
      III. No writ of injunction will lie against a corporation in a suit by a stockholder complaining of the inequitable acts of the directors. (Attorney-general a. Utica Ins. Co., 2 Johns. Oh., 371; Verplanck a. Mercantile Ins. Co., 1 Edw., 84; Mickler a. Eochester City Bank, 1 Paige, 118 ; Bennett a. American Art Union, 5 Sand/., 614; N. Y. Printing & Dyeing Establishment a. Fitch, 1 Paige, 97. See, also, Fetris a. Strong, 3 Edw., 127 ; Hentz a. Long Island E. E. Co., 13 Barb., 646 ; Hodgkinson a. Long Island B. B. Co., 4 Edw., 411.)
      IV. Where the trustees create a waste of the corporate property, the remedy is not against the corporation, but against the trustee personally. (Verplanck a. Mercantile Ins. Co., 1 Edw., 84; Franklin Ins. Co. a. Jenkins, 3 Wend., 130.) And an injunction depriving the officers of the corporation of the whole property (as in this case) should not be granted ex parte out of court. (Morgan a. N. Y. & Albany B. E. Co., 10 Paige, 290.) "
      V. On the merits, the plaintiffs’ case must be defeated.
      VI. When damages can be ascertained, and compensation be made in money, and enforced at law, the injury is not irreparable, within the rule that the court can interfere to prevent irreparable injury. An injunction does not lie to restrain the defendants from crossing a public toll-bridge with loads so heavy as to damage or endanger the bridge. (Thompson a. Matthews, 2 Edw., 212; McCafferty a. Glazier, 10 How. Pr., 475.)
      VII. The alleged contempt is no objection to granting this motion. (Smith a. Earn, 6 How. Pr., 124 ; Field a. Hunt, 22 lb., 329; 13 Abbotts’ Pr., 320.)
      VIII. The alleged contempts are sufficiently purged.
      IS. The service on Seabrook, the agent of the association, is not a good service, so as to bring a foreign corporation or its managers and directors into contempt. In fact, it would not be good even to lay the foundation of a judgment against the corporation. (Hurlbut a. Hope Mutual Ins. Co., 4 How. Pr., 275 ; Bates a. New Orleans E. E. Co., 13 lb., 516.)
      
        Beebe, Dean fy Donohue, opposed.—I. The defendant is in contempt, and cannot make the present motion. (Krom a. Hogan, 4 How. Pr., 225.) This case does not come within any of the exceptions to this rule. (Gurnee a. Odell, 13 Abbotts’ 
        
        Pr., 264; Field a. Chapman, Ib., 320; S. C., sub nom. Field a. Hunt, 22 How Pr., 329.) Advice of counsel does not excuse. (Capet a. Parker, 3 Sandf., 662.)
      II. It is the duty of the directors fairly and reasonably to manage their trust.
      III. In the present case, it appears there was business for both boats, and tht defendants unlawfully reduced their fare to a ruinous point.
      IV. It is not competent for these directors; they have no authority to run off the rival boat, nor to attempt it.
      Clerke, J. (orally).—I am not disposed to extend the rule; it was never intended, in my judgment, that this court should entertain such a jurisdiction. The compromises of the Constitution must be preserved, and the rights of sister States in every respect regarded.
      Motion granted.
    
   Monell, J.

The action is brought to recover for personal injuries. The injuries were inflicted in New Jersey, while the parties were both residents of that State.

The motion to vacate the order of arrest is made upon the sole ground that this court has not jurisdiction of the cause of action.

Except so far as the place of trial of actions for injuries to the person has been regulated by statutes (1 Rev. L., 325; 2 Rev. Stat., 409), such actions have always been regarded as transitory, and triable in any county where the plaintiff might elect to bring his action (Co. Lit., 282; 1 Wils., 336); and it is not disputed that, in this State, an action of this nature may be tried in another and different county from the one in which the cause of action arose. But it is insisted that this is the limit of the jurisdiction, and that our courts cannot take cognizance of cases arising in a foreign country or neighboring State.

The common-law jurisdiction of the New York Superior Court, except in its territorial limitation, is coequal with that of the Supreme Court; hence, any action which the latter court may entertain, is triable in this court, provided the defendant resides, or can be served with process, within this county.

Every court is primarily the judge of its own jurisdictional powers, and may assume them or decline them, in the exercise of a sound discretion, in all cases, subject only to correction by an appellate Court; and I am* not aware that it has ever been held by any court, in any country, that there is any other controlling power.

Whether, therefore, the court will afford jurisdiction in cases of trespass occurring out of the State may be said to rest in discretion merely, and may be denied whenever substantial justice may require it; but I have not been able to find any case (with a single exception) in which it is held that the courts may not entertain the action, irrespective of any question of injustice to the parties, a'nd were bound to deny itself jurisdiction.

The cause, of action in this case arose in the State of Hew Jersey, and there are courts in that State of competent power to afford the plaintiff redress for the wrongs and injuries she has suffered, and the convenience, of both parties and witnesses, would doubtless be promoted by a resort to the tribunals of that State. But the jurisdiction of the Hew Jersey courts is not exclusive, and the parties coming here may subject themselves to the process of our courts, and are liable in pecuniary damages, although the injury was done in the neighboring State.

So far as the acts of the defendant tended to a breach of the public peace, they were local, and cognizable only in the local courts; but the personal wrong to the plaintiff, for which she is entitled to redress, is transitory, and within the jurisdiction of our courts.

I cannot 'see any soundness in the argument that courts ought not, and therefore should not, afford jurisdiction to this class of cases, merely because the tribunals of the country or State where the transaction occurred are ample to give redress. Such an argument may be addressed with force to the discretion of the court, where the'resort to our courts may work great hardship and injustice to the party. But with the ample power to procure the testimony of foreign witnesses, and to-secure a fair and impartial trial, few cases could be suggested in which such an argument should prevail.

In this case, if jurisdiction rested in discretion merely, I could not, upon this motion, interfere with its exercise by the justice who granted the order of arrest, he having thereby determined that it was a proper case to be entertained by this court.

The question has frequently arisen in this State, and been decided with great uniformity, sustaining the jurisdiction in this class of cases. A brief review of some of the cases will exhibit the views entertained by our Supreme Court on the subject.

The earliest case is Glen a. Hodges (9 Johns., 67), which arose in 1810. The action was trespass vi et wmvis, for taking the plaintiff’s slave out of plaintiff’s possession. The trespass was committed in the State of-Vermont. The question of jurisdiction was directly involved and raised. The court said, “There can be no objection to an action of trespass being brought here, though the act happened out of the State.” The inquiry concerned the rights of personal property. The act was not a public offence, nor did it touch the rights of real property. It was of a transitory nature; and it is an established principle that such personal actions may be laid where the defendant is to be found.

In the next case, of Gardner a. Thomas (14 Johns., 134), the plaintiff and defendant were British subjects, and the injury was committed on the high seas on board of a British vessel, and the court entertained jurisdiction of the action, declaring that the courts of this State had concurrent jurisdiction with those of Great Britain as to the private remedy.

In Smith a. Bull (17 Wend., 323), the assault and battery was committed in the State of Pennsylvania, and a motion to nonsuit, on the ground that an action could not be sustained here for an injury happening abroad, was denied, and the decision afterwards affirmed by the court m borne.

In Lister a. Wright (2 Hill, 820), the action was for slanderous words spoken in Canada, and the jurisdiction was sustained. The learned judge Bronson suggests a doubt whether they “ ought” to take cognizance of the action if the parties were British subjects; but that question did not arise, as the parties were citizens of this State.

Wilson a. Mackenzie (7 Hill, 95) went off on other grounds; but the court held to the rule laid down in Gardner -a. Thomas (supra), and sustained the jurisdiction against a strong appeal to the discretionary power of the court, quoting from Spencer, Ch. J., in Percival a. Hickey (18 Johns., 257), that the court was not at liberty to assume or decline jurisdiction upon speculative grounds, or for reasons of public policy.

The rule is also fully recognized in Beach a. Bay State Co. (27 Barb., 248).

The leading English case of Moysten a. Fabrigas (1 Cowp., 161), is cited as authority by all the judges in this State. Lord Mansfield there sustained the jurisdiction, although the transaction occurred in a foreign country, the parties being subjects of Great Britain.

But the doubt suggested in the case put by his lordship, of two Frenchmen fighting iB France, is seized upon as the expression of an opinion of that eminent jurist against the jurisdiction in such a case. He, however, assigns a reason for it, which relieves the case of all embarrassment. “ Because,” he says, “ though it is not a criminal prosecution, it must be laid to be against the peace of the king; but the breach of the peace is merely local, though the trespass against the person is transitory.” And Tates, J., in commenting on this reason, in Gardner a. Thomas (sitpra), says, The objection to the jurisdiction, because it must be laid in the declaration to be against the peace of the people, is not sufficient, for that is a mere matter of form, and not traversable.”

In a very recent case in the English Court of Exchequer (Scott a. Lord Seymour, not reported), the jurisdiction was upheld.

The action was for an assault and battery committed at Naples, where the plaintiff and defendant then resided; the question arose upon a demurrer to the plea setting forth the facts. The Lord Chief Baron, in deciding the demurrer, says: “ It is concluded, by authority, that the circumstance of the assault and battery having been committed in a foreign country is, in itself, no impediment to an action being maintained for it here.”

This case, in its facts, if like the one before me, and is conclusive of the view entertained at the present time on the subject by the English courts.

I was referred, on the argument, to the case of Moloney a. Dows (8 Abbotts’ TV., 316), where the learned judge, after an elaborate review of the cases in England and in this country, arrives at the conclusion that,jurisdiction cannot be entertained.

The action was for personal injuries to the plaintiff in California, and the Common Pleas of this city nonsuited the plaintiff, on the ground that they had no jurisdiction of the action. The heavy weight of authority in this State, in which the question has been carefully considered, would overwhelm any doubt which either the able argument of counsel, or the opinion of the court in the California case, might suggest. One' of the errors into which I think the learned judge has fallen, is in regarding the parties to that action as foreigners, and not citizens of the United States. The doubt suggested by Lord Mansfield was in respect to the right of subjects of a foreign .kingdom suing in their courts, not of their own subjects. And although, perhaps, no case can be found where foreigners have been allowed to resort to English courts to redress their wrongs committed in another country, numerous cases are found, and are of frequent occurrence, where the English subject is thus allowed.

Moloney and Dows were citizens of the United States, and the transaction happened in one of those States. The cause of action was transitory, and, as it seems to me, upon well-settled principles, was cognizable by the courts of this State.

The Constitution of the United States (art. 4, § 2), provides that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. Hence, Moloney could claim the immunity of coming.into our courts to get redress for the wrongs he suffered in California.

Another error of the learned judge, as I think, was in attaching too much importance to the right to give punitive damages for the breach of the public peace. The enhanced damages, which are given by way of punishment for the public wrong, are not compensatory to the public, which gets no part of them, but are designed to punish the offender, and go with the other damages to the plaintiff. The public vindicates its rights by prosecution and conviction of the offender, and must resort to the local tribunals. The individual, who has suffered more than the offended laws, may avail himself of the immunities preserved to him by the Constitution, and invoke other tribunals. The circumstance that the defendant may be punished for the public wrong does not make the private injury any the less transitory.

The conclusion to which I have arrived, after a careful consideration and examination of the question, is, that the courts of this State have jurisdiction of actions for personal injuries inflicted in any of the States of the Union, and are bound to entertain such action between citizens of those States.

As the parties to this action are both citizens, it is not necessary to determine whether foreigners have the same immunity.

The motion to discharge the order of arrest must be denied, with §10 costs.  