
    BRISBANE v. PENNSYLVANIA R. CO.
    (Supreme Court, Appellate Division, First Department.
    December 2, 1010.)
    1. Coubts (§ 7)—Jurisdiction—Damage to Real Property Without the State.
    An action for damages to real property outside of the state, where the gravamen of the action is negligence, is a personal action and follows the party aggrieved.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 14; Dec. Dig. § 7.*]
    
      2. Covets (§ 14)—Jurisdiction—Actions Against Nonresident Corporations.
    Under the direct provisions of Code Civ. Proe. § 1780, a resident may maintain any action against a foreign corporation, and this right is in no way qualified.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 39; Dec. Dig. § 14.*]
    3. Courts (§ 35*)—Jurisdiction—Presumption—Complaint—Jurisdictional Facts.
    The Supreme Court, being a court of general jurisdiction, is presumed to have jurisdiction, and unless a complaint alleged that the plaintiff was a nonresident, then his residence would be presumed, it not being necessary that jurisdictional facts should be pleaded in that court.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 140; Dec. Dig. § 35.*]
    4. Abatement and Revival (§ 3*)—Objection to Jurisdiction—Mode.
    Objections to jurisdiction must be made by plea in abatement, and even where a complaint alleges the residence of the plaintiff in this state, that fact cannot be put in issue by denial.
    [Ed. Note.—For other eases, see Abatement and Revival, Cent. Dig. §§ 7, 17; Dec. Dig. § 3.*]
    Appeal from Special Term, New York County.
    Action by Arthur Brisbane against the Pennsylvania Railroad Company. From a judgment for defendant on demurrer to complaint, plaintiff appeals.
    Reversed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, and DOWLING, JJ.
    Clarence J. Shearn, for appellant.
    Norman B. Beecher, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   DOWLING, J.

The complaint herein sets forth that defendant is a foreign corporation, organized under the laws of the state of Pennsylvania, and engaged in the operation by steam of a railroad ; that plaintiff is the owner of a certain tract of land in the town of Allaire, state of New Jersey, along and through which defendant’s said railroad runs; that on or about May 10, 1907, defendant so negligently and carelessly managed a fire which it maintained in a locomotive passing over said railroad, that the fire came into and upon plaintiff’s premises and burned over some 300 acres thereof, destroying the fences, timber, and growing trees thereon, to plaintiff’s damage in the sum of $5,000. Defendant’s demurrer to this complaint has been sustained, upon the ground “that it appears upon the face of the complaint that the court has not jurisdiction of the subject of the action.” Two reasons are advanced as justifying this judgment: First, that the action is one affecting real property without the state, and therefore the courts of the state will not take jurisdiction thereof; second, that it does not appear upon the face of the complaint that plaintiff is a resident of this state, and therefore he does not come within the provisions of section 1780, Code Civ. Proc., and cannot maintain this action in this state. As to the first reason advanced, it may be said that it has been heretofore held that in a cause of action for damages to realty the gravamen is negligence and such an action is personal and transitory in its nature. Barney v. Burstenbinder, 7 Lans. 210. This case was cited with approval in Home Insurance Co. v. Pennsylvania Railroad Co., 11 Hun, 182, wherein this very defendant disputed the jurisdiction of the Supreme Court in an action brought to recover damages sustained by plaintiff therein through being obliged to pay a claim under its policy of fire insurance, where the loss occurred through fire communicated by sparks from defendant’s locomotive to realty situated near Harrisburg, in the state of Pennsylvania. The jurisdiction was there sustained. So that it had been expressly held', in an action against a foreign corporation by a domestic corporation, that the rule requiring actions in respect to real property to be brought in, the forum rei sitae did not apply where the action was one for negligence causing injury to realty. The general provisions of the statute with respect to the place of trial referred only to such causes of action as arose within the state. Smith v. Bull, 17 Wend. 323. But apart from this, the language of the first sentence of section 1780 of the Code is direct and unequivocal:

“An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action.”

The remaining sentence of that section describes the cases in which alone a foreign corporation or a nonresident may bring suit in this state, but in no way qualifies the first sentence. We are referred to no case against a foreign corporation in which the plain meaning of the first sentence has been sought to be qualified or restricted. On the contrary, that it is to be literally construed seems to be clear from the opinion of Judge Earl, in Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 323, 19 N. E. 627, 2 L. R. A. 636:

“Under this section [referring to section 1780] a resident of this state, or a domestic corporation, can maintain an action against a foreign corporation for any cause of action, no matter where it arose.”

The terms of the 'section are again quoted in Grant v. Cananea Consolidated Copper Co., 189 N. Y. 247, 82 N. E. 191. It seems clear, therefore, that if the plaintiff is a resident of this state, the court has jurisdiction of this action. The question finally to be decided, therefore, is whether the second reason advanced for affirmance is sound, and whether the complaint was fatally defective in not setting forth plaintiff’s residence, for if he was a nonresident, the action could not be maintained in this state. This question was raised in Ubart v. Baltimore & Ohio Railroad Co., 117 App. Div. 832, 102 N. Y. Supp. 1001, and it was there held that “our Supreme Court being a court of general jurisdiction its jurisdiction is presumed unless lack of jurisdiction appears on the complaint itself”; that even where the complaint alleged the residence of plaintiff in this state, no issue could be raised thereon by a mere denial, because it was an unnecessary allegation ; and that the nonresidence of plaintiff was a defense which had to be pleaded as such in the answer to be put in issue. “A plea to the jurisdiction for nonresidence, or on any other question of fact, has to be made now as formerly by the defendant. The plea or defense of jurisdiction has not been abolished.” Id., page 833 of 117 App. Div., page 1001 of 102 N. Y. Supp. The failure to allege that plaintiff was a resident of this state did not, therefore, justify the sustaining of the demurrer.

The final judgment appealed from must therefore be reversed, with costs, and the demurrer overruled with costs, with leave to defendant on payment thereof to serve its answer within 20 days. All concur.  