
    JOHN ROBINSON, as Administrator, &c., Respondent v. THE OCEANIC STEAM NAVIGATION CO., Appellant.
    
      Jurisdiction of action by non-residents against foreign corporation, on causes of action arising without the state. An action under Lord Campbell's act for a death, is an action in tort, and if the death and the injuries causing it occur without the state no court of this state has jurisdiction of an action therefor by a non-resident against a foreign corporation—Letters of administration issued in this state do not invest one, in fact a non-resident, with the character of a resident—Such want of jurisdiction is not waived by not being relied on in the answer—It may be raised on motion at any stage of the action—The granting of the motion does not violate § 2, Article 4, of the Constitution of the United States.
    
    No court of the state of New York has jurisdiction over an action for damages brought by a non-resident thereof against a foreign corporation upon a cause of action arising without the state.
    A cause of action to recover damages for the death, on an English vessel owned by an English corporation, on the high seas,, of a passenger being carried on- such vessel under a contract of carriage, which death was caused by the colliding on the high seas of that vessel with another, is not a cause of action for damages for a breach of contract to carry safely, but is an action in tort under Lord Campbell’s act, and arises out of the state of New York. No court of this state has jurisdiction over an action brought by a non-resident thereof on such a cause of action against such corporation—The transitory nature of the cause of action does not give such jurisdiction.
    Letters of administration issued by a surrogate of this state to a non-resident thereof, does not invest such non-resident with the character of a resident of the state for the purposes of an action against a foreign corporation. Notwithstanding the issue of such letters he still remains a non-resident.
    A waiver of such a want of jurisdiction does not flow from the fact that the defense is not set up in the answer.
    Such want of jurisdiction may be brought to the attention of the court at any time on motion, e. <7., by a motion at special term to set aside the summons and to dismiss the complaint for such want, even after issue joined by an answer not setting up such defense. And the court may then by granting the motion declare to the parties that for that reason no further proceedings should betaken.
    The granting of such a motion does not violate section 2, article 4, of the Constitution of the United States.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Appeal from an order denying defendant’s motion to vacate the summons and dismiss the complaint.
    The facts sufficiently appear in the special and general term opinions.
    The motion was heard below by O’Gorman, J., who in denying it, wrote as follows:—
    The facts as they appear bn this motion are these : the plaintiff sues as administrator of an infant, who while a passenger on board of a steamship owned by defendant corporation, was killed, as it is claimed, by the negligence or default of the defendants. The defendants are a foreign corporation, and this ship was a British ship, and the death took place on the high seas, on a voyage from New York to Liverpool, and within the territorial limits of Great Britain.
    Under the British law, as set forth in the complaint, an action may be brought by the administrator of a person whose death has been caused by the wrongful act, neglect or default of another, and damages may be recovered therefor.
    This action is brought under the provisions of that law.
    The defendant corporation voluntarily appeared in the action, served on the plaintiff’s attorney an answer and notice of trial, and the cause was set down for jury trial on the day calendar of March 17, 1888. Among the defenses set up in the defendant’s answer was the defense that this court had not jurisdiction of the subject of the action.
    A motion is now made to vacate and dismiss the complaint, with costs, on the ground that the plaintiff, as administrator, did not reside in the state of New York, and that this court, therefore, had no jurisdiction under § 263, subdivision 7, and § 1780, of the Code of Civil Procedure.
    The fact that the plaintiff administrator is not a resident of this state is not alleged in the answer, but only in an affidavit used on this motion.
    A motion in this case to compel the plaintiff to give security for costs, as a non-resident of the state, was granted by Judge Preedman at special term.
    In Brooks v. The Mexican Construction Company, 49 Super. Ct. 234, it was held by the general term of the court, that under §§ 266 and 1780 of the Code of Civil Procedure, this court had no jurisdiction over a foreign corporation in an action brought by a non-resident of this state, and that objection to the jurisdiction might be taken at any time, although not taken in the answer. The court of appeals dismissed the appeal on a matter of practice only.
    
      The plaintiff here contends, that the defendants, by their conduct in this action, have waived all objection to the jurisdiction of the court, unless such as is set forth in their answer; that this motion is made too late; is for the purpose only of delay and not in good faith ; and that the plaintiff, by reason of his having received letters of administration from the surrogate of the county of New York, is, in contemplation of law, a resident therein.
    Plaintiff also contends that the action is brought substantially on the ground that the defendants are liable in damages for their default in fulfilling their contract, made in the city of New York, to carry the deceased safely and with due care, and that the court has, therefore, jurisdiction under § 263, subdivision 2, or § 1780 of the Code of Civil Procedure.
    In the case of Popfinger v. Yutte, 102 N. Y. 42, a question similar to that here presented was considered carefully by the court of appeals. It was there held that the jurisdiction of the superior court continued to be as it had been on the 6th of December, 1869, the date of the constitutional amendment, and that subdivision 5, of § 263 of the Code, in so far as it purported to confine the jurisdiction of the superior court, was inoperative.
    The court also held that under § 266 of the Code, want of jurisdiction by reason of the non-existence of any of the jurisdictional facts specified in § 263, is a matter of defense, and is waived by appearance unless pleaded.
    The objection now made, that this action against a foreign corporation is not brought by a resident of the city, is one of these objections which, if valid constituted a matter of defense and must, therefore, be regarded as waived. To the same effect was the opinion of the court of appeals in McCormick v. Penn. R. R. Co., 49 N. Y. 308-9, the court holding that where there is jurisdiction of the subject matter or cause of action, consent may confer jurisdiction of the person, and that such consent may be expressed by a foreign corporation by appearing by attorney and answering generally in the action. It should be borne in mind that in the case at bar the action is transitory, and the cause of action, in contemplation of law, may, therefore, be treated as having arisen within the city of New York.
    The objection that the plaintiff administrator is not a resident of the city and state of New York, not having been especially pleaded as a defense, is therefore not sustained.
    The motion to vacate and dismiss the complaint is denied, with ten dollars costs.
    
      Wheeler, Cortis & Godwin, attorneys, and Lawrence Godhin of counsel, for appellant, argued:—
    I. The motion should have granted under § 1780 of the Code of Civil Procedure, upon the authority of the cases of Brooks v. Mexican National Construction Co., 49 Super. Ct. 234; 50 Ib. 281; Ervin v. Oregon Ry. etc. Co., 28 Hun, 269. The Brooks case is absolutely undistinguishable from the case at bar. It was an action for damages arising out of a collision. Some of the plaintiffs were residents and some non-residents. The defendant was a foreign corporation, and the collision took place near Arkansas Pass on the coast of Texas. In that case the cases of McCormick v. Penn. R. R., 49 N. Y. 308, and Popfinger v. Yutte, 102 N. Y. 42, were commented on; and the first of them was held in the light of the later case of Davidsburgh v. Knickerbocker Co., 90 N. Y. 526, not to be an authority for the proposition that non-residénce of the state, made a requisite to jurisdiction under § 1780 of the Code, could be waived ; the second was held to apply only to cases arising under § 263.
    II. No argument in favor of jurisdiction can be drawn from the transitory nature of the action. If in every transitory action the cause of action may be considered to have arisen in the place where the action is brought, the words in subdivision 3 of § 1780 of the Code, “ Where the cause of action arose within the state,” have no meaning, for all personal 'actions are transitory. Bouvier’s Law Dictionary, Title “ Transitory Action.” The case of Dennick v. Railroad Co., 103 U. S., 11, is not analogous. To make that case at all analogous to this it should appear in the case at bar, that the defendant was contending that this action having been brought under Lord Campbell’s Act, could only be prosecuted by an administrator appointed by the courts of Great Britain.
    III. This action cannot be distinguished from the Brooks case on the ground of its being an action for breach of contract to carry safely. The allegations of the complaint are a conclusive answer to such a contention, for it is expressly pleaded that the action is brought under Lord Campbell’s Act, which is a British statute, giving a right of' action for a tort resulting in death, which right of action, being a right of action in tort, pure and simple, would at common law have died with the person of the deceased.
    IV. Jurisdiction cannot be sustained on the ground that although plaintiff was a non-resident of the state of New York, nevertheless for the purposes of this action, he must be considered a resident because letters of administration had been issued to him by a New York surrogate’s court. Coal Company v. Blatchford, 11 Wallace, 172, is an express authority against such a contention. Executors and administrators appointed by letters from a New York surrogate’s court may be either residents or non-residents, and the Code recognizes the distinction between a resident and non-resident executor, for by § 3268, an executor may be compelled to give a bond “ where the objection is that he is not a resident of the state,” and again, “ that a person against whom there is no objection except that of non-residence, is entitled to letters testamentary,’’etc. Both executors and administrators derive their authority from the issuance of letters by the surrogate’s court, and if a non-resident cannot be made a resident executor by the simple issuance of letters testamentary, a non-resident administrator cannot be made a resident administrator by the issuance of letters of administration.
    V. The court could not acquire jurisdiction by consent or any act or omission of the parties and might, whenever its attention was called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation. Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y. 526 ; Bates v. New Orleans, etc. R. R. Co., 4 Abb. Pr. 72. Titus v. Relyea, 8 Abb. Pr. 177; Williams v. Van Valkenburgh, 16 How. 144; Hallett v. Righters, 13 How. 43; Dudley v. Mayhew, 3 N. Y. 12; Chapman v. Phenix Bank, 44 Super. Ct. 361; Davidsburgh v. Knickerbocker Co., 90 N. Y. 526; Jones v. Trans. Co., 50 Barb. 193; Rhode Island v. Massachusetts, 12 Peters, 719. Two cases may be relied on in opposition. One is the case of Johnson v. Adams Tobacco Co., 14 Hun, 89. This case was decided on the ground that the cause of action arose within the state. The rest is obiter, or if it is not obiter, it is directly opposed to the decision of the general term of the supreme court in Bates v. R. R. Co., 4 Abb. Pr. 72, and the case of Brooks v. Mexican National Construction Co., supra, that the defect of want of jurisdiction of the subject matter could be disposed of on motion. The other case is Atlantic, etc. Co. v. Baltimore and Ohio R. R. Co., 87 N. Y. 355. This was a case in which there were conflicting affidavits in regard to the jurisdictional facts, and the case is adverse to the plaintiff, for the court says: “ Perhaps in a case free from doubt, the court might dismiss the whole proceeding on a motion to set aside the summons.” This case is free from doubt. There is no dispute as to facts. And in a later case, the court of appeals distinctly held that the court “might, whenever its attention was called to the defect in the proceedings, refuse to exceed the law of its creation.” Davidsburgh v. Knickerbocker Life Insurance Co., 90 N. Y. 529 and 530.
    VI. The counsel for the plaintiff in the court below laid great stress on the case of Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48. That case has no application here, for the defendant company was a domestic corporation. This was pleaded in the complaint and admitted in the answer. See pages 371 and 376, Case on appeal to court of appeals, Vol. 568 of Cases on Appeal in Law Institute and Bar Association Libraries.
    
      Thomas P. Wickes, attorney, and of counsel for respondent, argued:—
    I. The administrator plaintiff, by reason of his having duly received from the surrogate of the county of New York, letters of administration, which are still in force, is, in contemplation of law, a resident therein. The administrator plaintiff exists by virtue of his appointment under the laws of the state of New York, and his powers and duties are prescribed by its statutes. He is the creation of the local law. A foreign administrator, as such, would have no status in this forum. This is well settled: Parsons v. Lyman, 20 N. Y. 103, 112; Morrell v. Dickey, 1 Johns. Ch. 153 ; Doolittle v. Lewis, 7 Ib. 45; Vroom v. Van Horn, 10 Paige, 459. In its essential features, the case at bar is identical, in this respect, with the case of Leonard v. The Columbia Steam Navigation Company (84 N. Y. 48). This case is approved in Dennick v. Railroad Co., 103 U. S. at p. 21. The case of Rice v. Houston, 13 Wallace, 66, is a further authority in support of our present contention. To the same effect is Dart v. The Farmers’ Bank of Bridgeport, 27 Barb. 337. By his letters of administration, therefore, the plaintiff in the case at bar represents the sovereignty of the state of New York, and his personal citizenship may be disregarded. In contemplation of law, pro hac vice, the administrator plaintiff is a resident of the city and county of New York. Therefore the court has jurisdiction under the provisions of both § 263, subd. 7, and § 1780 of the Code of Civil Procedure.
    II. A cause of action for wrongfully causing the death of a person, accruing in, and given by the statute of, one state or country, may be enforced in any other state or country, where jurisdiction of the parties can be obtained, provided that the laws of both states or countries substantially concur in giving a right of action for the injury complained, of. Such a cause of action is transitory and personal, and “in contemplation of law the injury arises anywhere and everywhere. ” Leonard case, 84 N. Y., at p. 52. The cause of action in the case at bar, therefore may have an arbitrary venue assigned to it, and be treated as having arisen in the city of New York. And the authorities are now unanimous, to the effect that the courts in either state or country, which can by their process obtain rightful jurisdiction over the person of the defendant, will enforce liabilities arising in the other. Leonard Admr. v. Columbia Steam Navigation Co., 84 N. Y. 48 ; Dennick Admx. v. Central R. R. Co. of New Jersey, 103 U. S.11; Stallknecht Admx. v. Penn. R. R. Co., 13 Hun, 451; Burns Admr. v. Grand Rapids & I. R. R. Co., 37 Alb. L. J. 228; McDonald Admx. v. Mallory, et al, 77 N. Y. 546; S. C. 7 Abb. N. C. 88; Mahler Admx. v. Norwich & N. Y. Trans. Co., 35 N. Y. 352; Debevoise Admx. v. N. Y., Lake Erie R. R. Co., 98 Ib. 377; Herrick v. Minneapolis, etc. Ry. Co., 31 Minn. 11; Great Western Ry. Co. v. Miller, 19 Mich. 305 ; Knight v. West Jersey R. R. Co., 108 Penn. 250; Hyde Admr. v. Wabash, St. L. & P. Ry. Co., 61 Iowa, 441; Central Railroad Co. v. Swint Admr., 73 Ga. 651; South Carolina R. R. Co. v. Nix Admr., 68 Ga. 572; McLeod v. The Conn. & Pass.. R. R. R. Co., 58 Vt. 727; The Bernina, 56 Law Times Reports, 258 ; The Guldfaxe, 2 English Low Rep., Ecc. & Ad. 325; The Explorer, 3 Ib. 289.
    ■ III. If, however, it shall be considered that the cause of action may not be treated as having arisen within the city of New York, as contended in the second point, still the court has jurisdiction, because the case can be properly regarded as an action upon a contract made in the city of New York, or, if not made, undoubtedly performed in said city. The contract was to safely transport the deceased to Liverpool, (a) The action is on this contract. Doedt v. Wiswall, 15 How. 128-144 ; Bates v. Reynolds, 7 Bosw. 685; Jones v. Norwich & New York Transportation Co., 50 Barb. 193; McCormick v. The Pennsylvania R. R. Co., 49 N. Y. 303. (b) The contract was made within the city of New York. Although the place is not mentioned in the complaint, it will be assumed, since the contrary does not appear, that it was made in New York. Fisher v. Charter Oak Life Ins. Co., 14 Abb. N. C. 32. (c) But it is perfectly clear that the contract was to be performed in the city of New York. It is immaterial where the contract for passage was made, because it was perfectly understood that the deceased was to take passage upon the steamship in the city of New York. The defendant undertook that if she should present herself at the proper place in the city of New York on the 18th day of May, 1887, it would permit her to go on board its steamship; and that it would then safely transport her across the ocean to Liverpool. This contract could not be per?formed elsewhere than in the city of New York, and when the plaintiff’s intestate went on board the Britannic at the White Star Line pier, in the city of New York, the contract on her part was fully performed. The cause of action, therefore, arose within the city of New York. Burcle v. Eckhardt, 3 N. Y. 132; Bank of Commerce v. R. & W. R. R. Co., 10 How. 1; Hiller v. The Burlington & M. R. R. R. Co., 70 N. Y. 223; Johnson v. The Adams Tobacco Company, 14 Hun, 89; Toronto, etc., Trust Co. v. The Chicago, B. & Q. R. R. Co., 32 Hun, 190. (The cases cited under (a) were also relied on in support of this point.) The facts of the cases of Campbell v. The Champlain and St. Lawrence R. R., 18 How. 412; Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co., 30 Barb. 150; Whitehead v. Buffalo, etc., R. R. Co., 18 How. 218; Davidsburgh v. Knickerbocker Life Insurance Co., 90 N. Y. 526 ; Ham v. The Barnegat Company, 7 Civil Pro. Rep. 222, distinguish them from the case at bar. In the present aspect of the case at bar, therefore, whether we regard the contract as “made” or as “performed” here, the cause of action arose within the city of New York. It follows that the court has jurisdiction under § 263, subd. 2 of the Code, or under § 1780.
    IV. The case at bar is readily distinguishable in several important particulars from the case of Brooks v. The Mexican Construction Co., 49 Super. Ct. 234; S. C., reported after a re-argument, 50 Ib. 281. 1. The plaintiffs in the Brooks case were non-residents; in the case at bar the plaintiff is a duly appointed New York county administrator. 2. The Brooks case proceeded upon a common law cause of action, which arose out of the state; the case at bar sets up a statute of a foreign-country, which is of identical import and character with a statute existing in the state, and which, it has been declared by the highest authorities, may be enforced in the state. 3. Or, in another aspect of the matter, the Brooks case set up a tort, pure and simple, which occurred out of the state; the case at bar declares upon a contract made within the city and its performance commenced there. 4. The Brooks cause of action, although transitory, could not be brought here, because the Brooks plaintiffs, collectively, were non-residents; in the case at bar the transitory cause of action is made the basis of a complaint by a duly authorized local officer, the very person designated by laAV to maintain such an action. 5. In the Brooks case the defendants moved promptly “before issue joined; ” in the case at bar, the point is taken by the defendant’s answer, a notice of trial of “the issues” is served, and motions relating to the trial are argued, before the motion to dismiss, etc., is made. 6. In the Brooks case it was open to the defendants to make the motion at any time; in the case at bar, by putting the matter in issue by its answer, and by then noticing the issues for trial, the defendant became estopped from raising the point at any other time than at the trial. 7. The Brooks case also differs in that there was no such constitutional question presented or argued therein as appears in the case at bar.
    V. The discretion of the learned judge who heard the motion below was properly exercised in denying it; and in the exercise of a similar discretion the order appealed from, should, for the same reasons, be affirmed. There are several reasons—(a) The defendant had waived its right to make the motion by noticing the cause for trial. Kellogg v. Bakler, 15 Abb. Pr. 286,289. Moreover, the effect of the defendant’s general conduct since issue was joined, has been such as to distinctly waive its right to the relief moved for; by the letter of its attorneys; by its motion for a commission to be used at the trial; by its stipulating to set the cause down for trial, (b) The motion was improper. Bank of Commerce v. R. & W. R. R. Co., 10 How. Pr. 1; McMahon v. The Mutual Benefit Life Ins. Co., 8 Abb. 297; Johnson v. The Adams Tobacco Co., 14 Bun. 89; Atlantic & Pacific Telegraph Co. v. The B. & O. R. R. Co., 87 N. Y. 355.
    VI. It has been held again and again that actions to recover damages for personal injuries, etc., etc., could properly be maintained in all the courts of this state, notwithstanding the fact that all the parties were aliens or non-residents and that the cause of action arose abroad. Smith v. Spinola, 2 Johns. 198; Gardner v. Thomas, 14 Ib. 134; Johnson v. Dalton, 1 Cow. 543 ; Dart et al. v. The Farmers’ Bank at Bridgeport, 27 Barb. 337; Ruse v. Mut. Ben. Life Ins. Co., 23 N. Y. 516; McIvor v. McCabe, 26 How. 257; Smith v. Butler, 1 Daly, 508; Latourette v. Clarke, 45 Barb 327; De Witt v. Buchanan, 54 Ib. 31; McCormick v. Penn. R. R. Co., 49 N. Y. 303, 308 ; Newman v. Goddard, 3 Hun, 70. The “ regular way ” to dispose of the issues is to try them. When an action is at issue, and notice of trial has been served, there is no other way in which it can be properly disposed of than by a trial, (c) The motion was for the purpose only of delay, and not in good faith. It was obviously a dilatory motion; every objection made could be raised upon the trial.
    ■ VII. The learned judge below was right for the additional reason, that if he had granted the motion to dismiss, such a decision would have been in conflict with § 2 of Article. IV. of the constitution of the United States, which provides that “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” It will not be disputed that a citizen of the state of New York could maintain this action provided letters of administration were granted to him. If the public administrator of the city of New York or some other competent stranger, personally residing here, could obtain letters of administration he would have all the requisite authority therefor. It cannot be possible that the intestate’s own father, because his personal citizenship is in the state of Massachusetts, will be denied the right to maintain an action, which a perfect stranger to the intestate, a citizen of New York, could maintain. Nor that a citizen .of Massachusetts cannot resort to the same legal remedies which a citizen of New York is entitled to. No; when the plaintiff received his grant of administration, the privilege of maintaining this very action was guaranteed to him by the Federal constitution.
   By the Court.—Sedgwick, Ch. J.

On the motion below it appeared clearly, that the plaintiff was a non-resident of this state; that the defendant was a foreign corporation ; and that the cause of action did not arise within this state. No court of this state had jurisdiction of the action. § 1780, Code Civil Procedure.

We must follow the case of Brooks v. Mexican National Construction Co., 50 Super. Ct. 281, that decides that the court is not in possession of jurisdiction, against the force of the statute, when as here, the defendant has not declared in his answer, that there is no jurisdiction, and that a waiver of the defense of no jurisdiction because of non-residence in the city is not a waiver of the objections that are grounded upon non-residence in the state.

The learned counsel for respondent argues, however, that the plaintiff, although otherwise a non-resident of this state, became for the purposes of this action, a resident of. the state by force of the letters of administration granted to him, in this county. , I do not recognize the proposition to be valid. The non-residence of the plaintiff was determined by the existence of certain facts before letters were issued to him. By the statute such letters may be issued to a non-resident. The letters did not destroy any of the facts Avhich made him a non-resident. After the letters were issued he remained a nonresident, and ever since has been a non-resident.

While it is certain that the cause of action alleged is o not local and is transitory, that consideration does not take the case out of section 1780 of the Code, which makes a condition precedent of jurisdiction, that the cause of action should arise within this state. A transitory cause may arise within any state. This was a transitory cause that arose without this state.

The action was not for damages to the intestate for the breach of a supposed contract with her to carry her safely, etc. The only demand of damages in the complaint jis for such as resulted from her death to the next of kin. The action ivas in tort, under Lord Campbell’s Act.

I am of opinion that the attention of the court may be turned, at any stage of an action to its want of jurisdiction, like the want here, and it may then declare to the parties that for that reason, the proceeding, from the beginning, had no legal efficacy, and that no further proceeding should be taken. This may be competently done, by setting aside the summons and all that followed.

It does not appear that granting the motion would have violated section 2, art. 4 of the constitution of the United States, which provides that “ the citizens of each .state shall be entitled to all privileges and immunities of citizens in the several states.” No action of a judge can confer power upon a court, when the state has not given it. The court can only ascertain what jurisdiction has been given. Any supposed neglect of a state to establish courts of sufficient jurisdiction cannot be remedied by the action of a judge or court.

The case of Popfinger v. Yutte, 102 N. Y. 42, is confined to jurisdictional defects mentioned in section 263 of the Code.

I am of opinion that the order appealed from should be reversed, and that the motion should be granted with $ 10 costs.

Freedman and Truax, JJ., concurred.  