
    Emmons M. Parkhurst, Resp’t, v. The Rochester Lasting Machine Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Jurisdiction—County court—Foreign corporation.
    A county court cannot acquire jurisdiction of an action against a foreign corporation by the appearance and consent of such corporation. Consent, may give jurisdiction of the person, but not of the subject matter nor of the action, and the county court is denied jurisdiction of any action against a foreign corporation.
    Appeal by defendant from a judgment of the county court off Monroe county, entered on the report of a referee.
    
      E. Van Voorhis, for app’lt; Irving Paine, for resp’t.
   Dwight, P. J.

The objection to the jurisdiction of the court in an action against a foreign corporation, though taken for the first time on this appeal, must be fatal to the judgment

That the county court has by the statutes which define its powers no jurisdiction of such actions is conceded; it is contended that in this case it obtained jurisdiction by the consent of the defendant, which appeared generally and answered to the merits.. The position is untenable. Consent may give jurisdiction of the? person, but not of the subject matter nor of the action. The question in this .case was not of jurisdiction of the person, but of the? limitation of. the power of the court The court had no jurisdiction of the action because it is denied jurisdiction "of any action! against a foreign corporation.

In Burckle v. Eckhart, 3 N. Y., 133, Gardiner, J., says at page 137: “ The jurisdiction of courts is conferred by law, and in no> case by consent of parties. When jurisdiction of the subject andi of the person is regarded as a pre-requisite of judicial action a defendant may waive any irregularities in the mode by which his person is sought tobe subjected to the jurisdiction of the court, by a voluntary appearance. He may dispense with the service of' process as he may waive any other personal privilege; but when the defendant is in court as a party the law gives jurisdiction ©£ the person without regard to the question whether his appearance-was voluntary or compulsory. This is all that is meant by consent giving jurisdiction of the person. * * * The residence-of the defendant within the limits of the circuit * * * is at jurisdictional fact which must exist before the court can act at all either by issuing process or accepting the appearance of the defendant. It is necessary to give jurisdiction of the cause, not the person. In such cases there can be no waiver.” See also Heenan v. N. Y., W. S. & B. R. R. Co., 34 Hun, 602; Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y., 526. In the latter case, Danforth, J., says: “ There are, no doubt, many cases where the court having jurisdiction over the subject matter may proceed against a defendant who voluntarily submits to its decision; but where the-state prescribes conditions under which a court may act, those-conditions cannot be dispensed with by litigants.”

Still more must it be impossible for litigants to dispense with the rule which prohibits the court to act at all in a given case. The cases cited by counsel for the plaintiff were actions in the supreme court, whose jurisdiction of the action was unquestioned^, and consent gave jurisdiction of the particular defendant.

The county court has no jurisdiction of the cause of action im this case, -because it has no jurisdiction of any cause of action, in. any case, against a foreign corporation.

The objection, which in this case appears on the face of the* complaint, is fatal, not only to the judgment appealed from, bufe to the action.

The judgment must be reversed and the complaint dismissed.

Judgment appealed from reversed and complaint dismissed, with, costs.

Macomber and Lewis, JJ., concur.  