
    Colorado State Bank, App’lt, v. Patrick H. Gallagher, Resp’t
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 16, 1894.)
    
    Corporations—Foreion—Actions by.
    Section 1780 of the Code does not apply to an action by a foreign corporation against a non-resident.
    Appeal from a judgment and order overruling a demurrer to the answer, and dismissing the complaint.
    
      Geo. W. Van Slyck, for app’lt'; L. B. Beckley, for resp’t.
   O’Brien, J.

J.— This action was brought on a promissory note, and by the answer it is alleged that the plaintiff is a foreign corporation, that the defendant is a non-resident, and that the note sued upon was made at Durango, in the state of Colorado. The answer then alleges that by reason of these facts the court was without jurisdiction of the subject matter or of the person of the defendant. To this answer the plaintiff demurred, on the ground that it was insufficient, and this demurrer was overruled ; and from the order and interlocutory judgment overruling the demurrer this appeal is taken.

Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation'may be maintained by a nonresident only in the cases therein mentioned. Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315; 20 St. Rep. 741 which was an action against a foreign corporation, involved the application of § 1780. In the course of the opinion in that case it was said:

“ Our court should not be vexed1, with litigations between nonresident parties over causes of action which arose outside of our territorial limits. Every rule of comity and of natural justice and of convenience is satisfied by giving redress in our courts to nonresident litigants when the cause of action arose or the subject matter of the litigation is situated, within this state.”

With respect to the specific question therein presented,—of jurisdiction over a foreign corporation,—it was decided that it was controlled by § 1780; and the quotation above given from the opinion, apart from any provisions of law, is expressive of the policy of our courts in relation to action's in which non-residents ■are parties, and which are not otherwise, controlled by the Code. It will thus be seen that, in relying upon the case of Robinson v. Oceanic Steam Navigation Co. as authority for the proposition that the court was without jurisdiction, the learned judge below fell into error. It is true that, in cases coming within § 1780 of the Code, the court is without jurisdiction, but, with respect to actions other than those therein specified affecting non-residents, the court, though having jurisdiction, may, in a given case, from motives of policy, refuse to exercise it. This distinction between the jurisdiction of the court and the discretion vested in it is clearly pointed -out in the two cases of Winchester v. Browne, 13 N. Y. Supp. 655 ; 37 St. Rep. 542, and Burdick v. Freeman, 120 N. Y. 420; 31 St. Rep. 427. In the case at bar, as the" court had jurisdiction, if it saw fit to exercise it, the answer was insufficient in law, and was obnoxious to demurrer. Our conclusion, therefore, is that the judgment should be reversed and that the defendant should be permitted to answer over upon payment of costs.

All concur.  