
    McLEAN v. ST. PAUL & CHICAGO RY. CO.
    N. Y. Common Pleas, General Term;
    
    
      June, 1886.
    
      Again, General Term;
    
    
      March, 1887.
    1. Jurisdiction; objection waived if not pleaded.] Under section 266 of the Code of Civil Procedure, providing that “the jurisdiction of a superior city court must always be presumed,” and that the want of it “ is matter of defense, and is waived by the appearance, unless it is pleaded in defense,”—a defendant who appears and does not plead to the jurisdiction, cannot thereafter object, although the want of jurisdiction appears from the facts stated in the complaint.
    
      2. The same; court of common pleads.'] The jurisdiction of the court of common pleas for the city and county of New York, and a superior city court, is identical, and section 2GG applies to both ■ courts.
    3. Leave to amend answer by pleading to jurisdiction, when refused.\ Where, after an action by a non-resident of the county of New York against a foreign corporation upon a contract made by it, with non-residents of the State, had been pending in the New York court of common picas eight years, and had been twice tried,— Held, that a motion then made to amend the answer by setting up a plea to the jurisdiction of the court, was made too late, although made promptly after a decision on appeal in the cause (reversing an order which dismissed the complaint for want of jurisdiction) that a plea was necessary to raise the point; and that it was improper to allow the amendment even upon condition of defendant’s stipulating to remove the cause to the supreme court.
    I. June, 1886.
    Appeal from a judgment dismissing the complaint.
    In 1879, Samuel McLean sued the St. Paul and Chicago Railway Company as the assignee of a cause of action for breach of contract. The defendant is a foreign corporation, created under the laws of Minnesota, and the contract in question Avas made out of the State, between the corporation and certain parties, all of whom were non-residents of this State. Plaintiff was a resident of Brooklyn ; and all these facts appeared on the face of the complaint.
    The action Avas twice removed to the circuit court of the United States, and once to the supreme court of the United States, and was twice remanded to the State court.
    The action first came to trial in April,, 1884, when the court held the plaintiff’s proof insufficent, and allowed him to withdraw a juror upon terms. In February, 1885, the case was again tried, and plaintiff’s proof again held insufficient, and the complaint dismissed. At neither trial was any objection made to the jurisdiction of the court.
    But upon appeal from the judgment of dismissal, the point was first raised. The court reversed the judgment, and in reference to the objection to jurisdiction, said: “The question as to jurisdiction comes too late. It was not raised in the court below, and after two trials without objection upon that point, it must be assumed that the parties to the action have voluntarily submitted to the jurisdiction of the court.” (Decision reported in 13 Daly, 446.)
    Thereafter the defendant moved at the special term for leave to amend its answer by setting up that plaintiff was not the real party in interest, and that the court had not jurisdiction by reason of the fact that the real parties in interest, the assignors of the cause of action, were not residents of this State, and that the plaintiff was not a resident of the city and county of New York, but resided in Brooklyn. This motion was denied upon the ground that the affidavits therefor were insnfficent to show that plaintiff was not the real party in interest. The cause was again brought to trial, when the complaint was again dismissed, upon the ground, that it appeared on the face of the complaint that the court did not have jurisdiction of the action.
    Plaintiff appealed.
    
      D. M. Porter, for the plaintiff, appellant.
    
      F. L. Stetson and O. W. Bangs (Bangs & Stetson, attorneys) for the defendant, respondent.
    
      
       There are some special statutory exceptions,
    
    
      
       Decision affirming order remanding cause. McLean v. Chicago & St. Paul R. R. Co., 108 U. S. 212.
    
    
      
       Reported ante, p, 425
    
   Daly, J.

The Code declares that the want of jurisdiction in the superior city court is matter of defense, and is waived by appearance, unless it is pleaded in the answer (Code Civ. Pro. § 266). It thus appears that want of jurisdiction is a defect which the defendant may waive. If lie waives it, the court should proceed, notwithstanding it may appear that if the objection were properly taken to the jurisdiction, such objection should be sustained.

II. March, 1887.

Appeal from an order granting the defendant leave to amend its answer by pleading to the jurisdiction of the court.

The judgment dismissing the complaint for want of jurisdiction having been reversed on appeal, the defendant thereupon moved for leave to renew the motion to amend its answer by pleading to the jurisdiction, which motion was granted, unless the defendants should offer to the plaintiff a stipulation that the cause be transferred to the supreme court, and there tried, as if the action had been brought originally in that court.

The memorandum of the court, upon granting this motion, was as follows:

Van Hoesen, J.—“After seven years of litigation, this action ought not to be disposed of by a plea to the jurisdiction, which, in the regular order of pleading, ought to have been the very first for the defendants to file. At this late day, only by a very liberal exercise of the favor of the court could leave be given to raise, by answer, an objection to the jurisdiction. I do not believe that sound discretion would sanction the throwing away of all that has been done, and all that has been spent by the plaintiff since the defendants, neglecting to plead to the jurisdiction, invited him to a contest over the merits of his claim.

The fact that the complaint contains averments which invite the objection of want of jurisdiction, and furnish proof in support of such a plea, does not justify the court in refusing to proceed with the case, if the defendant declines to take the objection in the way pointed out by law. The option is with the defendant; his consent in effect confers jurisdiction, for he may and does waive objection by failure to plead want of jurisdiction as defense. We so held in Pease v. Del., Lac. & W. R. R. Co. (10 Daly, 459), and the question is settled by the decision in Popfinger v. Yutte (102 N. Y. 38), on appeal from the superior court. The jurisdiction of this court and the superior court, in such a case, is identical, and section 266 of the Code applies to both courts.

The judgment should be reversed, and a new trial ordered, with costs to abide event.

Labbemobe, C. J., Van IIoesen, Allen and Bookstavee, J J., concurred.

“ If the defendants are not content to litigate the questions in this court, after haying gone on here with the action for seven years, let them transfer the cause to a tribunal that lias jurisdiction. If the defendants offer to the plaintiff a stipulation that the cause be transferred to the supreme court, and there tried as if the action had been brought originally in that court, and if the plaintiff refuse to join in the stipulation, the defendants may then renew in this court a motion for leave to plead to the jurisdiction. But if the defendants refuse to consent to make such a stipulation, I think it best to leave them exactly where they now stand. They have acted throughout the whole litigation upon the theory that, without any pleading, they could avail themselves at the trial of the want of jurisdiction, because the court lacked jurisdiction, not of the person, but of the subject-matter. Perhaps that is the right view of the law, but whether it be or not, I do not feel authorized to permit a plea to the jurisdiction to be filed if the plaintiff will consent to-give to the defendants a trial in a court that has jurisdiction of the subject-matter.”

Thereafter, .upon affidavit showing that the stipulation had been offered, and that plaintiff had refused to accept it, the defendant moved for leave to amend its answer; and upon granting the motion, the court made the following memorandum;

Van IIoesen, J.—“Let an order be entered, giving to the defendant leave to amend its answer by pleading to the jurisdiction of this court, unless on or before January 5, 1887, the plaintiff unites in the stipulation to remove the cause to the supreme court.

“ If the plaintiff deems it essential to require a stipulation that the defendant will not, after the action has been removed, object to the jurisdiction of the supreme court, or if he desires a stipulation to the effect that the cause shall be restored to the court of common pleas, and to its old number on the calendar, in case the supreme court should of its own motion refuse to entertain jurisdiction, both contingencies not at all likely to occur, I see no objection to such provision.”

From the order entered in accordance with this decision, the plaintiff appealed.

P. M. Porter, for the plaintiff, appellant.

I. The defendant, having notice from the allegations of the complaint that the plaintiff was a non-resident of the city of New York, and not having alleged in its answer want of jurisdiction, it has thereby waived any objection to the jurisdiction of the person or the subject-matter. Code Civ. Pro. § 266, providing that the jurisdiction of this court “ must always he presumed,” and “ where the defendant appears, the want of jurisdiction by reason of the non-existence of any of those facts, is a matter of defense, and is waived unless it is pleaded in defense,” has been construed to confer jurisdiction, unless the objection is taken by answer (Popfinger v. Yutte, 102 N. Y. 38. See also opinions in this cause, 13 Daly, 446, and General Term, June, 1886; Pease v. Delaware, Lack. & W. R. R. Co., 10 Daly, 459). “ The objection that the court has not jurisdiction of the person of the defendant, must he made promptly ” (Dake v. Miller, 15 Hun, 356. See also Green v. Milbank, 3 Abb. N. C. 138 ; Grandin v. Leroy, 2 Paige, 509). This motion is too late, being made, after the cause had been pending eight years, and no question having been made of jurisdiction until after the cause had been twice tried. “ Where a State court has jurisdiction, it is not in its discretion whether to exercise it or not, but it is its duty to do so when called upon in the manner prescribed by law ” (Cook v. Whipple, 55 N. Y. 150, 164. See, also, Alexander v. Bennett, 60 N. Y. 204).

II. This motion should be denied on the ground of laches. See Barstow v. Hansen, 2 Hun, 333 (refusing defendant’s motion for leave to amend by setting up a discharge in bankruptcy, after five years’ delay rnd one trial); Darragh v. McKim, Ib. 337 ; Quinn v. Van Pelt, 12 Hun, 633.

III. To entitle a party to serve an amended pleading, the amendment should be in furtherance of justice, and some reasonable excuse should be shown for the defect sought to be rectified (Harrington v. Slade, 22 Barb. 161; Gambling v. Haight, 5 Daly, 152, 154). And it is not in furtherance of justice to allow a party, who has omitted to plead a defense which is technical, .to serve an amended pleading in order to avail himself of a defense which does not go to the merits (Clinton v. Eddy, 37 How. Pr. 23; S. C., 54 Barb. 54). The party applying must show cause for the omission to make the amendment when the pleader had a legal right to make the allegations sought to be set up by amendment (Bewley v. Eq. Life Ins. Co., 10 Weekly Dig. 191). The defendant knew all the facts seven years before the previous motion to amend the answer was made, and it should have incorporated it in that motion as being necessary to secure the success of the defendant, and having failed to do so, the present motion cannot now be entertained (Pattison v. Bacon, 12 Abb. Pr. 142 ; S. C., 21 How. Pr. 478 ; Desmond v. Wolf, 1 Code Rep. 49). The court will not, as a general rule, after the time to answer has expired, allow a supplemental answer to be put in to set up a technical defense, which may operate as a forfeiture of a just claim (Hoyt. v. Sheldon, 4 Abb. Pr. 59 ; aff’d 19 N. Y. 207 ; S. C., 6 Duer, 661; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 446).

C. W. Bangs, Charles Mac Veagh (Bangs, Stetson, Tracy & Mac Veagh, attorneys), for the defendant, respondent.—I. The court had power to make the order appealed from, allowing the answer to be amended upon terms (Code Civ. Pro. § 723). • This power exists after a trial lias been had, an appeal taken, and a new trial ordered, to the same extent as though the action had never been tried (Troy & Boston R. R. Co. v. Tibbits, 11 How. Pr. 168; Eighmic v. Taylor, 39 Hun, 366). Any allegation may be inserted by way of amendment, provided it is.material and not unconscionable (Schreyer v. Mayor, 39 Super. Ct. (J. & S.) 277). Any allegation setting up a defense to the action is a material allegation (Robertson v. Robertson, 9 Daly, 44, 54).

II. The order allowing the amendment upon the conditions stated, was a proper exercise of the discretion of the court. It has been repeatedly held that this power should be exercised in a proper case after a new trial had been ordered by the appellate court, with the same freedom as though the application were made before trial (Troy & Boston R. R. Co. v. Tibbits, 11 How. Pr. 168; Schreyer v. Mayor, 39 Super. Ct. (J. & S.) 277; Downer v. Thompson, 6 Hill, 377; Carrier v. Dellay, 3 How. Pr. 173 ; Prindle v. Aldrich, 13 How. Pr. 466; McGrane v. Mayor. 19 How. Pr. 144; Tooker v. Arnoux, 10 Weekly Dig. 132; Marsh v. McNair, 40 Hun, 216; Eighmie v. Taylor, 39 Hun, 366 ; Alston v. Mechanics’ Mutual Ins. Co., 1 How. Pr. 82). Greater latitude should be allowed in amendments to the answer than to the complaint; and if the complaint may he amended after two trials, there can be no ground for refusing an amendment to the answer (Robertson v. Robertson, 9 Daly, 44). It is proper to allow the amendment at this time, also, for the reason that the necessity of pleading this defense had been unknown to the defendant, until after the decision on appeal, holding that the plea to jurisdiction must be inserted in the answer.

III. The order appealed from is a matter wholly within the discretion of the court below, and the appeal should be dismissed. It is discretionary with the court to allow a renewal of the motion, and its decision will not be reviewed upon appeal (Hatfield v. Secor, 1 Hilt. 535; Bowman v. Do Peyster, 2 Daly, 203; Smith v. Bodine, 1 Hun, 309 ; Schreyer v. Mayor, 39 Super. Ct. (J. & S.) 277, 281; Guiterman v. Liverpool, &c. S. S. Co., 9 Daly, 119, 124; May v. Burras, 13 Abb. N. C. 384; Barton v. Barton, 1 N. Y. State Rep. 757.

The General Term (Labbemobe, C. J., Daly and Allen, JJ.) reversed the order allowing the amendment, and denied the motion to amend, with costs, upon the ground that this court has jurisdiction, unless the want of jurisdiction is pleaded, and that the motion was made at too late a stage of the action.

There was no written opinion the decision being made orally after argument.  