
    Solomon Brooks et al., Resp’ts, v. Wm. B. Dinsmore, President, etc., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 30, 1889.)
    
    I. Jurisdiction—District courts.
    A district court has no jurisdiction of an action brought against an express company in the name of its president unless either the plaintiff or such president reside in the judicial district in which it is held.
    2, Same—Objection, when to be taken.
    The objection to the jurisdiction is taken in time although first presented on the second trial, if the fact of want of jurisdiction then appeared for the first time.
    Appeal from a judgment of the district court for the third judicial district.
    
      Seward, Da Costa & Griswold, for app’lt; De Witt C. Morrill, for resp’ts.
   Per Curiam.

The sole question raised on this appeal is whether the court below had jurisdiction of the parties to the action.

The plaintiffs commenced their action against William B. Dins-more as president of the Adams Express Company. During the pendency of the action Mr. Dinsmore died and Mr. John Hoey has been substituted in his place, as president of the company. It appears from the evidence that neither the plaintiffs nor Mr. Dins-more nor Mr. Hoey resided in the third judicial district when the action was commenced nor now reside there.

The consolidation act of the city of Hew York, § 1289, provides that'“an action or proceeding of which these courts have jurisdiction must be brought in a court held in the district in which either the plaintiff or defendant, or one of the plaintiffs or one of the defendants resides.” And § 1382 provides, “ Judgment that the action be dismissed with costs without prejudice to a new action, shall be rendered .in the following cases, * * * 3.

When it.is objected at the trial and appears by the evidence, that the action is brought in the wrong district.” The question therefore is, Who is the “party” defendant, the president or the company ? And this has been repeatedly decided to be the president. Woods v. De Figaniere, 1 Robt., 607, which is directly upon the point.

This was followed in McGuffin v. Dinsmore as Prest., etc., 4 Abb. N. C., 241, in which case, in delivering his opinion, Sanford, J., says: The conclusions at which I have arrived after a careful examination of the papers submitted are (1) that William B. Dinsmore is the only party defendant in this action, notwithstanding that he is sued in his representative capacity as president of an association consisting of numerous individuals.” And in Whitman v. Hubbell, treasurer, etc., 30 Fed. Rep., 81, Judge Wheeler expresses the same views, and holds that the Adams Express Company is a partnership and not a corporation. See, also, Bacon v. Dinsmore as President etc., 42 How. Pr., 368. If a partnership, why then of course the action must be brought in the district where either the plaintiff or the partners, or at least one of them resides.

In Westcott v. Fargo, 61 N. Y., 542, on which the respondent relies, there was an intimation that such associations might for the purposes of suing or being sued, be regarded as a corporation sole. A corporation sole, as we understand it, consists of only one person to whom and his successors belongs that legal perpetuity, the enjoyment of which is denied to all natural persons. Bouv. L. D., vol. 1, p. 319. Such corporations cannot take personal property in succession, 9 Cranch, 43, and we do not think that Adams Express Company can, in any sense, fall within the definition of such a corporation. In speaking of the decision last cited, Judge Barrett, in People ex rel. Winchester v. Coleman, 24 N. Y. State Rep., 970, says: “The conclusion that the president was for the purpose of bringing the action here a corporation sole, does not seem to be necessary to the decision,” with which view we coincide. The fact is these associations are nothing more than copartnerships, but as such copartnerships consist of many members, chap. 258, Laws 1849, was enacted to facilitate the bringing or maintaining of actions without the necessity of serving all the copartners.

We think the third judicial district court had no jurisdiction to entertain the action. We also think that the objection to the jurisdiction was taken in time, although first presented upon the second trial, for then the fact of want of jurisdiction first appeared. Dean v. Cannon, 1 Daly, 34; Wallace et al. v. Berdell et al., 105 N. Y., 7; 6 N. Y. State Rep., 434. We are, therefore, constrained to reverse the judgment, with costs.

The question involved in this appeal, so far as w.e are informed, has never been passed upon by the court of appeals, and in view of the many cases arising under chap. 258, Laws 1849, and amendments thereof, we deem it important that the question be finally settled. Leave is, therefore, given to the respondents to appeal to the court of appeals if they are so advised.

Yaw Hoesen and Bookstaver, JJ., concur.  