
    Martha T. Fairclough, Individually and as Executrix, etc., of William H. Fairclough, Deceased, Respondent, v. Southern Pacific Company and Others, Appellants.
    First Department,
    March 3, 1916.
    Corporations—jurisdiction of action by non-resident against foreign corporation — objections to jurisdiction — amendment of 1913 to section 1780 of Code of Civil Procedure not retroactive — action arising in foreign State for personal injuries resulting in death governed by statutes of said State.
    The courts of this State, prior to the amendment made in 1913 to section 1780 of the Code of Civil Procedure, had no jurisdiction of an action by a non-resident arising in another State against' foreign corporations doing business within this State.
    Objection to the jurisdiction of a court may be taken at any time; hence, a motion to dismiss upon such ground may be made after witnesses have been examined by commission and the ease made ready for trial.
    The amendment made in 1913 to section 1780 of the Code of Civil Procedure, permitting a non-resident or foreign corporation to maintain an action against a foreign corporation “ 4. Where a foreign corporation is doing business within this State,” did not have a retroactive effect so as to confer jurisdiction upon the court of an action of which it did not have jurisdiction when the same was commenced.
    An action to recover damages for personal injuries resulting in death arising in a foreign State is governed by the statutes of said State.
    Scott, J., dissented, with opinion.
    
      Appeal by the defendants, Southern Pacific Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1915, denying their motion to dismiss a complaint upon the ground that the court had no jurisdiction of the action.
    
      J. Ard Haughwout of counsel [Esselstyn & Haughwout, attorneys], for the appellants.
    
      Eli J. Blair of counsel [Beeves, Todd & Swain, attorneys], for the respondent.
   McLaughlin, J.:

Action to .recover damages for personal injuries resulting in death. The decedent, a resident of the State of New Jersey, was killed in a railroad accident in the State of Texas in December, 1906. He left a will, which was probated in the State of New Jersey and letters testamentary issued to the plaintiff, his widow. Ancillary letters were, in December, 1907, issued to her by the Surrogate’s Court of the county of New York and she thereupon brought this action. The defendants are all foreign corporations. The cause of action arose outside of the State of New York and the plaintiff was, at the time the action was commenced, and ever since has been, a resident of the State of New Jersey. The case, therefore, falls directly within the rule laid down in Robinson v. Oceanic Steam Navigation Co. (112 N. Y. 315) in which it was stated that the courts of this State have no jurisdiction of such an action. In September, 1915, the defendants moved to dismiss the action upon that ground, and from an order denying the motion the present appeal is taken.

The motion to dismiss was not made until after several witnesses had been examined by tiommission and the case was about ready for trial. That fact, however, is immaterial, since objection to the jurisdiction of the court may be taken at any time. (Robinson v. Oceanic Steam Navigation Co., supra.) The motion, therefore, should have been granted unless the amendment of 1913 to section 1780 of the Code of Civil Procedure regulating the commencement of actions against a foreign corporation renders the decision to which reference has just been made inapplicable. The court below, as appears from the opinion delivered, denied the motion upon the ground that the court now has jurisdiction by virtue of this amendment.

The respondent urges, with much force, that under a decision made subsequent to the decision in Robinson v. Oceanic Steam Navigation Co. (supra) by the Supreme Court of the United States. (Chambers v. Baltimore & Ohio R. R., 207 U. S. 142) section 1780 is unconstitutional because it discriminates between residents and non-residents. The constitutional question was raised in both Robinson v. Oceanic Steam Navigation Co. and Grant v. Cananea Consol. Copper Co. (189 N. Y. 241), and both cases expressly declared that section 1780 did not violate any constitutional provision. Until these decisions, therefore, have been overruled, either by the Court of Appeals or by the Supreme Court of the United States, we are bound to follow them, and must hold, in the present case, that the court had no. jurisdiction of the action prior to the amendment of 1913. (Johnson v. Victoria Chief Copper Mining & S. Co., 150 App. Div. 653; Grant v. Greene Consol. Copper Co., 169 id. 206.)

By chapter 60 of the Laws of 1913, which went into effect on the 1st of September of that year, section 1780 was amended so as to permit a non-resident or foreign corporation to maintain an action against a foreign corporation “ 4. Where a foreign corporation is doing business within this State.” It appears from the moving papers that all the defendants were, at the time the accident occurred, and now are, doing business in the State of New York, and it is strenuously urged that by virtue of the amendment of 1913 the court now has jurisdiction of the action. But it is suggested, and with much force, by the appellants that the amendment of 1913 is unconstitutional, since it permits an action to be maintained against a foreign corporation which happens to be doing business in the State of New York upon a cause of action which arose outside of it and not connected in any way with the business there done. (Simon v. Southern Railway, 236 U. S. 115.) The Appellate Division of the Second Department, relying on the Simon case, has recently held, as I read the opinion, that notwithstanding the decision of the Court of Appeals in Grant v. Cananea Consol. Copper Co. (supra) an action cannot be maintained under such circumstances. (Bagdon v. Philadelphia & Reading Coal & Iron Co., 170 App. Div. 594.)

The conclusion at which I have arrived renders it unnecessary to pass upon the contention thus made. I am of the opinion that the amendment did not have a retroactive effect so as to confer jurisdiction upon the court of an action of which it did not have jurisdiction when the same was commenced. The general rule is that a statute is not to be construed, if reasonably possible, so as to give it a retroactive effect. (Matter of Andersen, 91 App. Div. 563.) This rule is based upon the presumption that when the statute was passed the Legislature intended thereby to furnish a rule for future action to be applied to questions arising subsequent to its enactment. (Dash v. Van Kleeck, 7 Johns. 499; Berley v. Rampacher, 5 Duer, 183; Palmer v. Conly, 4 Den. 376.)

In Dash v. Van Kleeck (supra) the court said: “We are to presume, out of respect to the lawgiver, that the statute was not meant to operate retrospectively; ” and that “ a statute ought never to receive such a construction, if it be susceptible of any other.” This court has recently held that this statute was not applicable to a judgment entered before the amendment took effect (Grant v. Greene Consol. Copper Co., supra), and I am unable to see why the same rule should not be applied to an action commenced prior to that time.

The most that can be said, as it seems to me, is that the plaintiff became entitled to maintain the action, if at all, on September 1, 1913, when the amendment to the section of the Code referred to went into effect. But on that date the action was barred by the Texas statute which, like our own, required such an action to be brought within two years after the death of the decedent. (See N. Y. Code Civ. Proc. § 1902 et seq.; Sayles’ Texas Civil Statutes, arts. 3017 et seq., 3354, subd. 7; Texas Revised Civil Statutes [1911], arts. 4694 et seq., 5687, subd. 7.) The action is a statutory one and the plaintiff’s rights are controlled by the Texas statutes — the State in which the accident occurred. In December, 1908, the plaintiff’s right of action became barred by the statutes of that State and although she had then commenced the present action the court, as we have already seen, then had no jurisdiction of

it and the defendants were entitled'to have it dismissed. Had they made a motion for that purpose at any time prior to September 1, 1913, the court would have been bound to grant it and the plaintiff would then have been barred from successfully maintaining another action. Before that date, at least, no action was legally pending, since long before the plaintiff’s right to bring such an action had expired. It cannot be claimed, certainly not with any force, that the amendment gave the court jurisdiction over the action prior to the time it took effect. As the court was, therefore, without j urisdiction until that time, the commencement of the action did not prevent the statute running, nor did the amendment confer jurisdiction when it did not theretofore exist.

While the course pursued by the defendants in pleading to the merits and allowing testimony to be taken by commission, and the case prepared for trial before moving to dismiss, may entitle the plaintiff to the sympathy of the court (Mallory v. Virginia Hot Springs Co., 157 App. Div. 253), the same conferred no additional rights upon her. The defendants did what they had a legal right to do and such action on their part cannot be held to give the plaintiff a cause of action which she otherwise did not have, or deprive the defendants of a relief which they did have.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Laughlin and Page, JJ., concurred; Scott, J., dissented. Clarke, P. J.:

While I have very grave doubts whether section 1780 of the Code of Civil Procedure as it existed prior to the amendment of 1913 will ultimately be held to be constitutional by the Supreme Court of the United States, it has been so held by the Court of Appeals. I feel, therefore, constrained to concur with the opinion of Mr. Justice McLaughlin reversing the order appealed from.

Scott, J. (dissenting):

In my opinion the order appealed from should be affirmed. So far as concerns the validity, under the Federal Oonstitution, of section 1780 of the Code of Civil Procedure as it stood before the amendment of 1913 (Laws of 1913, chap. 60), inasmuch as it denied tó a citizen of a foreign State a right of action enjoyed by the citizens of this State, I consider that there is very great doubt. Of course I am aware that its validity has been affirmed by the Court of Appeals in Robinson v. Oceanic Steam Navigation Co. (112 N. Y. 315), which was followed by this court in Johnson v. Victoria Chief Copper Mining & S. Co. (150 App. Div. 653). Since the above-cited decision of the Court of Appeals the question seems to have been differently decided by the Supreme Court of the United States — the paramount authority upon questions affecting the construction and application of the Federal Constitution. (Chambers v. Baltimore & Ohio R. R., 207 U. S. 142; International Text Book Co. v. Pigg, 217 id. 91, 112.) Since it is universally conceded that upon such questions the authority of the United States Supreme Court is controlling (People ex rel. Central Park, etc., R. R. Co. v. Willcox, 194 N. Y. 383; Sibley v. Sibley, 76 App. Div. 132), it seems that the Robinson Case (supra) and those cases in this State which have followed it must be deemed to have been overruled. Apart from that question, however, I am of opinion that the amendment of 1913 to section 1780 of the Code of Civil Procedure acted retroactively so far as to confer jurisdiction upon the Supreme Court to proceed with this action. Assuming that under the section referred to as originally enacted the court was without jurisdiction, that lack of power went, not to the right of action, but to the remedy or right of enforcement. The statute giving a right of action for an injury causing death is general in its language, and does not confine the right to sue to a resident or citizen of this State, nor to a death occurring within the State. (Code Civ. Proc. §1902.) The plaintiff, therefore, acquired a right of action under our statute when the death occurred (the statute of the State of Texas also giving a right of action), and the only bar to her recovery here was section 1780 of the Code, which closed our courts to her because of her non-residence. It seems to me, therefore, to be entirely accurate to say that she had a cause of action, and that section 1780 of the Code operated only to bar her remedy. It seems to be well settled that a statute which affects only the remedy, or the form of procedure, will be construed to act upon pending actions unless a contrary intention is plainly expressed in the statute itself. (Matter of Davis, 149 N. Y. 539; Peace v. Wilson, 186 id. 403; Laird v. Carton, 196 id. 169.) As was said' respecting the operation of a similar statute under similar circumstances: “ It acts immediately on a thing then in existence, and from that moment gives the court a power to act on that thing which it did not have before.” (Larkin v. Saffarans, 15 Fed. Rep. 147, 149.)

In all of the cases in which it has been held that statutes, remedial in their character and similar to the amendment of 1913 of section 1780 of the Code of Civil Procedure, act retroactively, the courts have coupled matters affecting the remedy and matters affecting only procedure as alike governed retroactively. A remedy has been defined as a judicial means for enforcing a right or redressing a wrong (4 Words & Phrases [2d series], 260), or as it has been defined in this State an “original application to a court of justice for a judgment or an order” for the relief sought by the applicant. (Matter of Cooper, 22 N. Y. 67, 87.)

What we have here is an action commenced by proper service of process to enforce a right which plaintiff had in some forum to obtain redress from the defendants. At the time the action was commenced the court had no jurisdiction to entertain it and render judgment therein, but before the time came to apply for judgment, such jurisdiction had been conferred upon the court. It seems to me that the act thus conferring jurisdiction should be held to attach to every pending litigation in which no application for judgment had yet been made, and thus to confer jurisdiction upon the court to render the proper judgment in that action.

For the reasons thus briefly stated I am of the opinion that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  