
    Lizzie Ubart, Respondent, v. The Baltimore and Ohio Railroad Company, Appellant.
    Second Department,
    March 1, 1907.
    Pleading — defense of lack of jurisdiction dependent upon facts must be taken by answer — when denials on information and belief insufficient.
    Lack of jurisdiction depending upon a question of fact, such as the non-residence of the plaintiff, must be pleaded as a defense, or else evidence thereof muy be excluded.
    Hence, when a plaintiff has unnecessarily alleged her residence in the complaint, a foreign defendant cannot raise the issue by a general denial, for a denial does not raise issues on immaterial allegations of the complaint.
    Moreover, an answer which “ on information and belief” denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations of the complant is not good as a denial.
    Rich, J., dissented in part, with opinion.
    Appeal by tlie defendant, The .Baltimore and Ohio Railroad Company, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of October, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes. '
    Since the judgment was entered the plaintiff, Lizzie Ubart, has died, and her administrator has been substituted.
    
      J. P..Cotton, Jr.. {II. A. Moore with him on the brief]-, for the appellant.
    
      Louis J. Vorhaus [Charles Coldzier with him on the brief], .for -the respondent.
   Gaynor, J.:

It is claimed, by the appellant that the plaintiff- (now deceased) was not .a resident of the State at the time of the commencement of the action, and therefore could not maintain1 the action for the reason that the appellant is a foreign corporation (Code Civ. Pro. sec. 1780). There was no such issue on the pleadings. Our Supreme Oourt being a court of general jurisdiction its jurisdiction is’ pre-.' sumed unless lack of jurisdiction appear on the complaint itself. It is true that the complaint alleged that the plaintiff was a resident of the State, but no issue could be raised thereon by the denial, because it was an unnecessary allegation. It was no part of, and therefore immaterial to the cause of action, and (as is the every day rule) no issue can be joined on an immaterial allegation in a pleading (Brown v. Travellers' Life Ins. Co., 21 App. Div. 42; Linton v. Unexcelled Fireworks Co., 124 N. Y. 533). The residence of the plaintiff was material to the jurisdiction of the court, not to the cause of action. Her non-residence was a defence, and had to be pleaded as such in the answer to, be put in issue ; and the burden of proof thereon would be on the defendant, as is the case with all defences.It was not so pleaded. ' Ho issue of fact can be litigated which the pleadings do not present., The plaintiff could not be confronted with an issue of her non-residence on the trial any-more than with any other issue of fact not presented by the pleadings. That if it happened to appear on the trial by the plaintiff’s testimony or otherwise that the plaintiff was a non-resident the court would on the defendant’s motion have to dismiss the case, or could do so of its own motion; or even on a motion before trial, the facts being undisputed (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315), is another question altogether. We are now dealing with a question of pleading. A plea to the jurisdiction for non-residence, or on any other question of fact, has to be made now as formerly by the defendant. The plea or defence of no, jurisdiction has not been abolished. A party may not be surprised by such a question on the trial. Where jurisdiction depends on a question of fact, that fact must be made an issue by the pleadings in order to be litigated, and as the fact is decided so is the question of jurisdiction determined (Matter of City of Mount Vernon, 34 Misc. Rep. 225). If such issue be not presented by the pleadings evidence thereon would have to be excluded for irrelevancy. The fact of residence is often a difficult and close one and could not be litigated without notice and preparation.

Moreover, the denial in the answer of the allegation of residence in the complaint was not good, viz., it was “ on information and belief ” of any knowledge or information sufficient to form a belief.

The evidence on the trial was also sufficient to uphold the finding of the jury that the plaintiff was a resident.

The judgment should be affirmed.

Present — Woodward, Jerks, Hooker, G-ayror and Rich, JJ.

Rich, J.:

I concur in the result, but cannot assent to the proposition that non-residence' must be pleaded. The defendant is a foreign corporation, and upon this appeal contends that Mrs. Ubart was a nonresident of this State at the time this action was commenced and that the trial court was, therefore, without jurisdiction. Counsel urges that it was incumbent upon- the plaintiff to show by a preponderance of the evidence’that the domicile of John Ubart (the husband) was in the State of Hew York at the time the action was commenced. The complaint alleges that the plaintiff was at the time of the commencement of the action a resident of the State of Hew York. The answer consists of a single paragraph as follows: And now comes the defendant above named and * * * answers the . complaint of the plaintiff above named and thus answering: I». On information and belief, denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations of paragraphs ‘I’ and ‘III’ of the complaint herein.”’ It is true the answer is bad as a denial and did -not put in issue the residence of the plaintiff. (Code Civ. Proc. § 500.) But the defendant is not'deprived of the right to object to the jurisdiction of the court at any stage of the action, and if .it was made to appear, that the plaintiff was a non-resident at the time of the commencement of tlie action,.it became the duty of the trial court to, refuse to proceed further and to dismiss. the action, for it is Hot-sufficient that a non-resident-plaintiff should by service .of process or in any other way obtain jurisdiction of a foreign corporation. Before such an action can be maintained there must be also jurisdiction of the subject-matter, which cannot be conferred upon the court by consent or. stipulation of the parties , and which is not waived by a failure of the defendant to allege non-residence of the ’ plaintiff in its answer. (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.) The question of plaintiff’s .residence was dependent upon conflicting evidence and presented a question of fact for the jury, and their verdict, must be sustained if there is sufficient evidence before them to justify their finding. -1 tliinlc the record discloses sufficient evidence to justify the conclusion that Mrs,. Ubart was at the time of the commencement' of her action- a resident of the State of New York.

I vote to affirm, with costs.

Judgment and order unanimously affirmed, with costs.  