
    Frederick B. Gurnet, Adm’r, Resp’t, v. The Grand Trunk Railway Company of Canada, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Negligence—J urtsdiction—Pleading.
    In an action against a foreign corporation to recover for injuries causing death, which occurred outside of the state, it is sufficient, if the complaint show that the foreign statute upon which the action is based is of similar import and character to that of this state; it is not necessary that it should be exactly the same.
    
      2. Same.
    It is not necessary to allege that such death was caused by such wrong-act, neglect or default as would, under the foreign statute, if death had ot ensued, have entitled the decedent to maintain the action.
    3. Same—Parties.
    An administrator appointed in this state may maintain such an action without showing that letters of administration have been taken out in the state where the death occurred.
    4. Sam's—Demurrer.
    Where the want of jurisdiction does not appear on'the face of the complaint the objection cannot be taken by demurrer.
    Appeal from an interlocutory judgment overruling a demurrer to a complaint.
    
      George F. Brownell, for app’lt; Benjamin B. Foster, for resp’t.
   O’Brien, J.

The facts alleged in the complaint and conceded by the demurrer are that the defendant company, being a common 'carrier of passengers, on the 28th day of April, 1889, received the plaintiff’s intestate as a passenger on its railway, and so negligently and unskilfully managed the cars and locomotive engine of the railway that the deceased, while exercising due care and caution, was killed thereby; that the plaintiff was duly appointed administrator of his estate by the surrogate of Kings county, New York; that there was at that date and still is a statute in force in the Dominion of Canada, where the decedent was killed, entitled “An act respecting compensation to the families of persons killed by accident and in duels,” providing, among other things, that when the death of a person has been caused by such wrongful act, neglect or default as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, in such case an action for damages for the benefit of the wife, husband, parent and child of the person may be brought by and in the name of the executor or administrator of the person deceased, and that such statute is similar in its import and character to the provisions of the Code of Civil Procedure of New York with reference to actions by an executor or administrator to recover damages for a wrongful act, neglect or default by which his (decedent’s) death was caused.

The three grounds of demurrer assigned are:

First. That the court has not jurisdiction of the person of the defendant
Second. That the court has not jurisdiction of the subject of the action.
Third. That the complaint does not state facts sufficient to constitute a cause of action.

This last is the one most strenuously urged upon this appeal. It is claimed that as the cause of action presented did not exist at common law, but is based solely on statute, it was incumbent, upon plaintiff to plead not only the Canadian statute, showing it to be similar to our own in respect to surviving in favor of parent or next of kin; but, also, that the cause of action was one which, under the law of Canada, the party injured could have maintained if death had not ensued. Neither contention is tenable. The Canadian statute changing the common law and permitting an action to be brought in the name of the executor or administrator where death ensues is sufficiently pleaded. The contention that the statutes of New York and Canada must be exactly alike is disposed of by Leonard v. The Columbia Steam Nav. Co., 84 N. Y., 52. “It is not essential,” the court says, "that the statute should be precisely the same as that of the state where the action is brought The rule merely requires that it should be of similar import and character.” Nor was it necessary to allege that Gurney’s death was caused by such wrongful act, neglect or default as would under the law of Canada, if death had not ensued, have entitled him to maintain the action.

In Whitford v. Panama R. R. Co., 23 N. Y., 467, it is said: “ Courts do not in general take notice of the laws of a foreign country, except so far as they are made to appear by proof. In the absence, however, of positive evidence as to the law of another country, our laws indulge in certain presumptions. Prima facie a man is entitled to personal freedom and the absence of bodily restraint, and to be 'exempt from physical violence to his person, everywhere. Hence, if one bring an action for false imprisonment or for an assault and battery committed abroad, he need not, in the first instance, offer any proof that such acts are unlawful and entitle the injured party to a recompense in damages in the place where they were inflicted; for the courts will not presume the existence of a state of the law in any country by which compensation is not provided for such injuries. And where the condition of the law of another state becomes material, and no evidence has been offered concerning it, our courts will presume that the general principles of the common law, which are always considered to be consonant to reason and natural justice, prevail there. But no such presumption obtains respecting the positive statute law of the state.”

It therefore follows that while it was necessary to plead as it will be necessary to prove that statute law of Canada with reference to giving to plaintiff a right of action in a case where death ensued, it is not necessary to aver, nor will it in the first instance be necessary to prove, that plaintiff’s intestate could have maintained such an action in Canada if death had not ensued.

The claim advanced that the New York administrator cannot maintain any such suit in our courts, where administration is not also taken out in Canada, is directly in conflict with the case of Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48. It is therein held that an administrator appointed in this state may maintain an action without showing that letters of administration have been taken out in the state where the death occurred.

The other ground of demurrer, that the court has no jurisdiction of the cause of action, was properly disposed of upon the authority of Phoenix Bank v. Donnell, 40 N. Y., 412.

As stated by the trial judge, ‘‘ It is only where it appears on the face of the complaint that the court has no jurisdiction of the subject matter of the action, that such an objection can be taken by demurrer. Here it does not appear on the face of the complaint that plaintiff is a non-resident, and that objection if it exists must be taken by answer.”

This is in accordance with the language of § 488 of the,Code of Civil Procedure, which provides that the defendant may demur to the complaint where the objection appears upon the face thereof. It is true that this action is brought against-a foreign corporation, to recover for an alleged cause of action which arose without the state and which exists only by virtue of a statute of that foreign country. It is equally true upon this state of facts that the action cannot be maintained under our Code unless it is shown that the plaintiff is a resident of the state.

Section 1780 of the Code makes the power to sue a foreign corporation upon a cause of action for tort arising without the state depend on the residence of the plaintiff within the state. This is the precise question in another form which arose in Phoenix Bank v. Donnell, supra, under § 144 of the old Code of Procedure, which contained a like provision, and which in language is similar to the present § 488 of the Code of Civil Procedure, and is, therefore, a binding authority. In that case, which was an action by an incorporated bank, the complaint contained no allegation that, the plaintiff was a corporation or entitled to sue as such. It was conceded that the legal position of the defendant demurring was sound, and that unless it was shown that the plaintiff was a corporation, it had no legal capacity to sue in that character, but the court says:

“Does the argument show that the demurrer is well taken?' All that the argument proves is that the complaint does not show upon its face affirmatively that the plaintiff has capacity to sue. But to sustain the demurrer the Code requires that it should appear upon its face that it had not such capacity, which in no respect appears. -For aught appearing upon the face of the complaint, the plaintiff may be a corporation entitled to sue as such.”

So here, while it is clear that, in order to maintain this action, the plaintiff must prove that he is a resident, and though the complaint does not allege such residence, still upon the face of the complaint it does not appear that he is not such, and the objection must be taken by answer. The fact that this action is a statutory one, and that the Code defiries and limits the jurisdiction of the court to the cases specified, does not change the rule of practice as to the manner in which the objection must be raised. There being no distinct ground upon which this can be distinguished from the question presented in Phœnix Bank v. Donnell, the latter is a binding and controlling authority.

The judgment, therefore, should be affirmed, with costs and disbursements, and with leave, upon payment of the same and costs of the court below, to withdraw the demurrer within twenty days.

Daniels, J., concurs.

Van Brunt, P. J.

The complaint in this action sets out a good cause of action, provided it appears upon the trial that the court has jurisdiction of the person and subject matter. Objection to jurisdiction may be raised by demurrer where it appears upon the face of the complaint that the court has no jurisdiction of the person or subject matter; but, unless want of jurisdiction appears upon the face of the complaint, the objection must be raised by a motion to set aside the summons, where an appearance would confer jurisdiction, or in cases where an appearance would not confer jurisdiction it may be raised by answer or at the trial or upon appeal or by the court itself. Robinson v. Oceanic S. N. Co., 112 N. Y., 315; 20 N. Y. State Rep., 741. I therefore concur.  