
    Charles A. Furbush, Appellant, v. Allen T. Nye, Respondent, Impleaded with James S. Clarkson.
    
      Jurisdiction of non-residents — assumed in actions on contract but not in torts — the merits will not be considered upon affidavits presented upon a motion to vacate an attachment.
    
    While, as a rule, the courts of the State of New York will not take jurisdiction of actions in tort arising between parties, resident of, and located in, another State, the rule is otherwise with regard to actions upon contract, especially where the contract was made in the State of New York. ,
    Where a motion is made to vacate a warrant of attachment upon the ground that the plaintiff has no cause of action against the defendant, and that fact does not clearly appear, the court will not consider the merits of the case upon affidavits, but will deny the motion and leave the merits to be disposed of upon the trial.
    Appeal by the plaintiff, Charles A. Furbush, from an order of the Supreme Court, made at the Hew York Special. Term and entered in the office of the clerk of the county of Hew York on the 3d day of February, 1897, setting aside the service of the summons, dismissing the complaint against the defendant Hye, and vacating a warrant of attachment granted against him in the action.
    
      
      J. Edward AoMey, for the appellant.
    
      Jas. MoHaught, for the respondent.
   Rumsey, J.:

This is an appeal from ;an order setting aside the service of a summons^ dismissing the complaint against the defendant Rye, and ■ vacating a warrant of attachment which was granted against him in the action. It appeared, from the papers that all of the parties to the action are non-residents of this State, and that the defendant Rye appeared specially in the action for the purpose only of setting aside the service of the summons and vacating the warrant of attachment. ■ The motion was granted by the learned judge at Special Term for the reason, as appears in his opinion, that all the parties being nonresidents the courts of this State would not. take jurisdiction of their controversy, but would remit them to the courts of the State' where they lived to settle their affairs there. In this conclusion we think the learned judge was m error. There is no doubt a rule that the courts of this. - State will'not take jurisdiction of actions of tort between parties resident of, and located in, another State. But that rule does not apply, and has never been applied,, to- actions on contract. \ Where, actions are ¡brought for a breach of a contract, courts of this State will take jurisdiction, although all the parties may reside in another State. Especially is that so where the contract is ... made in this State. (Smith v. Crocker, 14 App. Div. 245.)

The motion to vacate the attachment was put not only upon the ground that the parties were non-residents, and for that reason the court would not take jurisdiction,' but upon the further ground that upon all the "facts the plaintiff had no cause :of action against the defendants. An examination of the papers shows that it is by no means clear that there is not a cause of action, and that it is not at all certain that.the damages may not amount to a considerable sum. In-such case the court will not consider the merits of the action upon affidavits and. vacate the warrant because' it determines upon the motion" that the plaintiff cannot succeed,, but- will deny the motion, leaving the merits of the case to be disposéd of -upon the trial. (Johnson v. Hardwood Door & Trim Co., 79 Hun, 407.) That course should have been pursued in this case.

The order, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Williams, Patterson and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  