
    McCARTY v. PARKER.
    
      N. Y. Superior Court, Special Term;
    
    January, 1891.
    
      Want of jurisdiction not waived by appearance.\ In. an action where the only ground on which the jurisdiction of a local court can rest was the service of defendant .within the local territorial limits, it appeared from defendants’ affidavits, in opposition to a motion for an injunction, that they were not so served.—Held, that the court did not acquire jurisdiction by defendants appearance, and that the motion should, therefore, be denied.
    
    
      Action by stockholder against trustees of a corporation for an accounting, receiver, and injunction. It ■appeared from defendant’s affidavits in opposition to an order to show cause why the injunction granted by the order should not be continued, that defendant had not been served in the city of New York.
    
      Donohue, Newcombe and Cardoze, for the motion.
    
      August Reymert, opposed.
    
      
       There has been considerable difference of opinion as to whether a requirement that a defendant must be served within the territorial limits of a local jurisdiction, or that he must be a resident within such limits is a restriction on jurisdiction of the court and subject, and unwaivable, or merely a personal privilege of the defendant, waived by his appearing. It seems well settled that it is the former in the -case of inferior local courts, Gilbert v. York, in Y. Y. 544; aff’g, 41 Hun, 594. It is also settled that under the present form of our statute the restriction upon the Supreme Court entertaining actions by or against foreign corporations goes to the jurisdiction of the court over the subject-matter.
      The case in the text confirms the view that the limit of jurisdiction of local courts of otherwise general jurisdiction in law and equity, is of the same unwaivable character.
      It is to be remembered, however, that by Code Civ. Pro. § 263, jurisdiction is presumed in their favor.
    
   Truax, J.

The court of appeals held in Wheelock v. Lee (74 N. Y. 495 ; s. c., 5 Abb. N. C. 80), that the jurisdiction of a superior city court was limited to cases in which the cause of action arose within its territorial limits, and cases in which the subject of the action was situated, or the party proceeded against resided or was served with process within those limits, and that some one or more of these elements of locality must exist to ■confer upon the court jurisdiction of the same. Judge Raparlo, who wrote the opinion, then proceeds to say: It follows that where none of them exist, a mere appearance does not preclude the defendant from taking the objection. Where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. Its omission is not cured by an appearance, for the objection is not simply that the court has not jurisdiction of the person of the defendant, but that it has not jurisdiction of the cause. ' In a case in which the court had jurisdiction of the cause on some of the other grounds, as, for instance, where the cause of action arose within the city . . the general rule would apply, that a general appearance cures any defect in the service of process to bring the defendant into court, and even the total absence of any service. But where, as in this case, the only element of locality which can exist, and the only means by which the cause can be brought within the jurisdiction of the court as a local, court, is the service of the summons within a certain territory, that rule is not applicable.”

In the case now before me the cause of action did not arise in the city of New York, the subject matter of the action is not situated within, and the parties proceeded against do not reside, nor were they served within the city of New York. In Davidsburgh v. The Knickerbocker Life Ins. Co. (90 N. Y. 526), the court of appeals said that when the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants; that the-court could not acquire jurisdiction by consent, and might, whenever its attention was called to the matter, refuse to exceed the powers conferred upon it by statute.

.The motion to continue the injunction is denied, and the injunction hereto issued is vacated, with costs.  