
    Abey Gundlin, App’lt, v. The Hamburg American Packet Company, Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Trial—Motion to strike out.
    The court may, in its discretion, deny a motion to strike out the witness’ answer to a question, to which no objection was duly taken.
    2. Same.
    If the answer is in part irresponsive, the motion should be limited to such portion.
    3. Same—Objection.
    An exception is unavailing where no ground of objection is stated.
    4. Same—Direction of verdict.
    In the absence of an exception to the denial of a request to direct a verdict, the court will not inquire whether there was sufficient evidence to sustain it, or whether it was without, or contrary to, the evidence.
    5. Appeal—Order for new trial.
    An exception to the denial of a motion to set aside the verdict and for a new trial, is not available on appeal from the city court.
    
      6. Same—Charge.
    A general exception to the charge, objectionable in some respects but unobjectionable in others, does not present error.
    7. Contract—Breach.
    A contract is broken by failure to perform it at the place where, by its terms, it is to be performed, and the cause of action arises when and where the breach occurs.
    8. Jurisdiction—Non-resedence,
    To authorize the dismissal of an action under the provisions of § 1780 of the Code, for want of jurisdiction because of the non-residence of the plaintiff, the fact of his non-residence must be first proved and determined.
    9. Judgment—Estoppel.
    A general verdict and judgment thereon, upon an issue in abatement joined with an issue in bar, estops from again litigating the merits of the same issue in bar.
    10. Same.
    To avoid such effect, the party should ask the court to direct a special finding by the jury on the issue in abatement.
    Appeal from a judgment of the general term of the city court of New York which affirmed a judgment for defendant on a verdict in its favor, and an order denying plaintiff’s motion on the minutes for a new trial. Action by a passenger against a common carrier by water for loss of baggage. Defendant was conceded to be a foreign corporation, and plaintiff claimed to be a resident of the state of New York at the time of the commencement of this action.
    
      Abraham H. Sarashon, for app’lt; Wheeler & Cortis (Everett P. Wheeler, of counsel), for resp’t.
    
      
       Affirming 55 St. Rep. 775.
    
   Bischoff, J.

No error appears from the record by due exception for which, we may reverse the judgment on the merits. Several exceptions appear to rulings on the admission of evidence for defendant. The first was taken to the denial of a motion by plaintiff’s counsel to strike out the witness’ answer to a question not objected to. It was within the discretion of the court to deny the motion, Platner v. Platner, 78 N. Y. 90; and assuming that the answer was in part irresponsive to the question the motion to strike out should have been limited to that part. McCabe v. Brayton, 38 N. Y. 196; People v. Beach, 87 N. Y. 508, 512; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. R. 302, 306; 52 St. Rep. 119. In the case of the remaining exception the ground of objection was not stated, Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep. 784; Stouter v. Man. Railway Co., 127 N. Y. 661; 38 St. Rep. 162. The judgment of affirmance of thé court below is conclusive upon us representing the weight of the evidence. Arnstein v. Haulenbeck, 16 Daly, 382 ; 34 St. Rep. 297; Smith v. Pryor, 16 Daly, 169; 30 St. Rep. 553; Rowe v. Comley, 11 Daly, 318. Plaintiff must be deemed to have conceded that there was a sufficient conflict of evidence to require the jury’s determination •of the facts because he did not ask to have a verdict directed in Ms favor, Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Paige v. Chedsey, 4 Misc. R. 183; 53 St. Rep. 190; Meyers v. Cohn, 4 Misc. R. 185; 53 St. Rep. 223 ; and without an exception to the denial of such a request it is not within our province to inquire whether there was sufficient evidence to sustain the verdict, or whether the verdict was without, or contrary to the evidence, Schwinger v. Raymond et al., 105 N. Y. 648 ; 7 St. Rep. 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553. On appeal to this court from the city court of New York an order denying a. motion for a new trial brings up for review such questions of law only as are presented by due exception taken upon the trial. (Schwinger v. Raymond et al., 105 N. Y. 648; 7 St. Rep. 544, and an exception to the denial of a motion to set the verdict aside and for a new trial, is not one taken upon, but after the trial, Code Civ. Pro. §§ 992, 995, 996. Such an exception cannot therefore avail on appeal, Matthews v. Meyberg, 63 N. Y. 656; Boos v. World Mut. L. Ins. Co., 64 N. Y. 236 ; Grier v. Hazard, 39 St. Rep. 74; Carroll v. O'Shea, 2 Misc. R. 437; 51 St. Rep. 579; Meyers v. Cohn, 4 Misc. R. 185 ; 53 St. Rep. 223. One other exception remains, to the charge, which we proceed to notice specially. The action was brought to recover damages for the loss of baggage belonging to a passenger, which defendant, a foreign corporation, was alleged to have received on board its steamship “Polynesia” for transportation from Stettin, Germany, and which it failed to deliver on arrival of the steamship at its. place of destination in this country. On the trial it was consented on defendant’s "behalf that plaintiff was not, when the action was commenced, a resident of the state of New York, and the fact appeared by fair inference from plaintiff's deposition taken under a commission. Counsel for defendant therefore urged that the court was without jurisdiction to determine the rights of the litigants. Plaintiff’s counsel thereupon, as a witness in his client’s, behalf, testified to the fact of the latter’s residence in the city of New York at the time of the commencement of the action. On the question of plaintiff’s non residence, as well as that the-baggage was lost through defendant’s neglect, there ensued a conflict of evidence and upon the submission of the case the trial justice charged the jury as follows; “It is for you to determine whether the plaintiff in this action was a non-resident of this city when this action was commenced, February 15th, 1892, as it seems to be. If you find he was not such a resident your verdict will be for defendant. Should you conclude he was a resident, your verdict will be in favor of the plaintiff, and that will bring you to the other disputed questions of fact in the case.” To this charge plaintiff’s counsel excepted generally, to wit. to all that part of the charge relating to plaintiff’s evidence. The vice of the exception is apparent. It is incumbent upon counsel for the excepting party to point out the specific party of the charge to which he intends to object so that the error, if any, may be obviated. If therefore, a charge, excepted to generally, is objectionable in some respects, but unobjectionable in others, the exception does not present error. Stone v. West. Trans. Co., 38 N. Y. 240; Jones v. Osgood, 6 N. Y. 233 ; Caldwell v. Murphy, 11 N. Y. 416 ; Walsh v. Kelly, 40 N. Y. 556; Groat v. Gile, 51 N. Y. 431, 442 ; Hunt v. Maybee, 7 N. Y. 266; Haggart v. Morgan, 5 N. Y. 122 ; Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310, 315 ; McGinley v. U. S. Life Ins. Co., 77 N. Y. 495. Upon the conflict of evidence it was the province of the jury to determine whether, or not, plaintiff was a non-resident at the time of the commencement of the action; and having determined that plaintiff was a non-resident and that the loss of his baggage was occasioned through defendant’s fault, it was the jury’s duty to return a verdict for plaintiff. In these last mentioned respects therefore the charge of the trial justice was not justly open to adverse criticism.- Hence, for the reason already stated, the exception taken is not available to show that the justice erred because the charge in effect determined that the cause of action did not arise within this state, as plaintiff’s counsel now contend it did. In this connection it may not be amiss to call counsel’s attention to a grievous error on his part. We observe that he refers to “Exhibit A” which is in the German language and attached to plaintiff’s deposition, and of which there appears no translation in the record as the passage contract between plaintiff and defendant by the terms of which, it is claimed, defendant undertook to convey plaintiff, and to transport his baggage, from Stettin to New York. This instrument, however, does not purport to have been made on defendant’s behalf and on its face appears to be no more than a contract by one R Hunger with plaintiff wherein the former is described to be an Emigrant Forwarding Agent, accredited as such by the local authorities at Stettin, and whereby he undertook to secure plaintiff’s conveyance, and the transportation of the latter’s baggage from Stettin to New York by the steamship “Polynesia.” Hunger’s relation to defendant is nowhere defined in the instrument. Heither does the record elsewhere inform us in that respect. For aught which appears the contract involves only a personal enterprise on Hunger’s part. Ho contract on plaintiff’s part with defendant appears to have been made in this state and the fact that plaintiff embarked upon defendant’s steamship at Stettin will at most sustain an inference that defendant’s contract with plaintiff for conveyance to this country was made at Stettin. From unchallenged evidence it appears that the destination of the steamship was Hoboken, New Jersey, and from that fact we can only infer that the place of destination was the place intended for delivery of the baggage which defendant had assumed to transport. In the abstract we agree with plaintiff’s counsel that a contract is broken by failure to perform it at the place where by its terms the contract was to be performed, and thak the cause of action arises when and where the breach occurs. Perry v. Erie Transfer Co., 28 Abb. N. C. 430, and note; 46 St. Rep. 185; Hibernia Nat. Bank, v. Lacombe, 84 N. Y. 367; Burckle v. Eckhart et al., 3 N. Y. 132; Toronto Gen. Trust Co. v. The Chicago, B. & Q. R. R. Co., 32 Hun, 190; Bank of Commerce v. Rutland & W. R. R. Co., 10 How. Pr. 1; Pomeroy’s Remedies & Remedial Rights, §§ 452, 454, 518, 520. Upon the evidence, however, these propositions lead to the conclusion that the cause of action sued upon arose in New Jersey.

Counsel for appellant, however, further assails the judgment appealed from upon the ground that in so far as the charge directed the jury to find for the defendant, if they believed plaintiff to have been a non-resident at the time of the commencement of the action, it involved an assumption of excessive jurisdiction on the part of the trial court, because it was incumbent upon the'court, when'the fact of plaintiff’s non-residence was ascertained, to decline to adjudge the rights of the litigants, and to dismiss the action ; and that, therefore, the verdict for defendant, as well as the judgment rendered thereon, are coram, non judice, and void. ’ It is conceded that the verdict and judgment would have the effect claimed if the fact of plaintiff’s non-residence appeared affirmatively from the record. Section 1780 of the Code of Civil Procedure inhibits the courts of this state from maintaining an action by a non-resident, or foreign corporation, against a foreign corporation, except when the action is brought to recover damages for the breach of a contract made within this state, or relates to property within this state when the contract was made, or is to recover real property or' a chattel within this state, or the cause of action arose therein. These inhibitory provisions operate to limit the jurisdiction of the courts with respect to the subject matter of the litigation, and when, therefore, in an action against a foreign corporation the status of the plaintiff as a foreign corporation or nonresident, is conceded or otherwise ascertained, and the case does not present one of the exceptions above mentioned, the courts of this state cannot proceed to adjudge the rights of the litigants, but must dismiss the action. Perry v. Erie Transfer Co., 28 Abb. N. C. 430; 46 St. Rep. 185; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; 20 St. Rep. 741; Davidsburgh v. Knickerbocker L. Ins. Co., 90 N. Y. 526. As jurisdiction of the subject matter cannot be conferred by consent of the litigants so it cannot be conferred by their omission to object to the exercise of jurisdiction ; nor are the parties estopped from disputing the validity of the judgment for want of jurisdiction of the subject matter of the action at any time. Wilmore v. Flack et al., 96 N. Y. 512, 519; McMahon v. Rauhr, 47 N. Y. 67. No exception is required, and the objection that the judgment was in excess of the power of the court to render it is available on appeal, though made for the first time. Cook v. Whipple et al., 55 N. Y. 150, 157; Fiester v. Shepard, 92 Id. 221; Matter of Larson, 96 Id. 381.

Every intendment, however, is in favor'of the validity of a judgment, if regular on its face, and the burden of establishing a want of jurisdiction is upon him who asserts it, Ferguson v. Crawford, 86 N. Y. 610; and if the court which rendered.the judgment had jurisdiction generally of actions involving & like subject matter the presumption is that it had jurisdiction in the particular case unless the facts which limit the exercise of jurisdiction in prescribed cases affirmatively appear. “If the petitioner states such a.case in his petition-that, on demurrer, the court would render judgment in his favor, it is an undoubted ¿ase of jurisdiction.” U. S. v. Arredondo, 6 Peters, 709; 85 U. S. 959; Davis v. Packard, 6 Wend., 327, 332; People ex rel. Tweed v. Liscomb, 60 N. Y. 559. The case at bar is to be distinguished from cases where the existence of certain facts must appear to sustain jurisdiction. Fischer v. Langbein, 103 N. Y. 84; 7 St. Rep. 862. Here the existence of a certain fact, non-residence of the plaintiff, is required to oust the court of jurisdiction. The existence of such a fact will not be presumed. To authorize a dismissal of the action, therefore, under the provisions of § 1780 of the Code of Civil Procedure, for want of jurisdiction because of the non-residence of the plaintiff, the fact of his non-residence must be first proved and determined. Leslie v. Lorillard, 18 Wk. Dig., 288; Gurney v. Grand Trunk R'way Co. of Canada, 37 St. Rep. 557. Ho such determination was had in the case under consideration. How then may we say that the court below was without jurisdiction because plaintiff was a non-resident of this state when the action was commenced ? It is the province of thq trial court, not of the appellate court, to determine the facts upon a conflict of evidence, Purchase v. Matteson, 25 N. Y. 211; Whitehead v. Kennedy, 69 Id. 462; Cuff v. Dorland, 27 Id. 560; Riley v. Black, 1 Misc. R. 292; 48 St. Rep. 759;. Coe v. Raymond, 89 N. Y. 612; and if jurisdiction be dependent upon the existence or non-existence of certain facts the trial court has power to determine the facts upon the evidence. Roderigas v. East River Sav. Inst., 63 N. Y. 460, 464. Upon a jury trial, unless the contrary appears, it muse be assumed that the jury found all the essential facts of which there was sufficiept evidence consistently with the verdict. Sutter v. Vanderveer, 123 N. Y. 652; 3 Silvernail Ct. App. 130; 34 St. Rep. 211. Thus upon the issue respecting the fact of plaintiff’s non-residence the record present an affirmative finding to the effect that plaintiff was not a non-resident and thereby the jurisdiction of the trial court to render judgment on the merits for defendant is sustained. We do not fail to notice the criticism that the manner in which the issues were submitted to the jury, and the determination of those issues by a general verdict, render it impossible to say that the jury did not find for defendant because of the "fact of plaintiff’s non-residence at the time of the commencement of the action; and that the verdict for defendant, and judgment in its favor thereon, if permitted to stand, may operate to preclude plaintiff from again seeking redress for the same cause of action in the proper forum. Counsel’s apprehensions concerning the conclusiveness of the verdict and judgment are well grounded. A general verdict, and judgment thereon, upon an issue in abatement, joined with an issue in bar, estops the party against whom the verdict was found, and the judgment was rendered, from again litigating the merits of the same issue in bar. Sheldon et al. v. Edwards, 35 N. Y. 279. At common law issues in abatement were required to be tried and determined before the trial of issues in bar. Under the Code of Civil Procedure however defenses in abatement may be joined with defenses in bar, and both must be determined together at one and the same trial. Pomeroy’s Eemedies & Eemedial Eights, § 721. If counsel desired to avoid the effect of a general verdict for defendant upon plaintiff’s rights he should have asked the trial court to direct a special finding by the jury on the issue respecting the fact of plaintiff’s non-residence. If such a direction had been refused an exception thereto would have presented error which it would have been our province to correct. If it had been granted, and the jury had found for defendant on the issue in abaiement, the court would have been enabled to render the.proper judgmentfor dismissal of the action for want of jurisdiction, and thus plaintiff would not have been precluded from again litigating the merits of his cause of action. Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 id. 399; Coe v. Raymond, 89 id. 612; Pomeroy’s Remedies & Remedial Rights, § 721. As the record is presented to us we must, as already stated assume that the jury found for defendant on the merits, and for plaintiff that he was a resident as he contended. The judgment of the general and trial terms of the court below must be affirmed, with costs.

Daly, C. J., and Pryor, J., concur.  