
    FLYNN v. CENTRAL RAILROAD OF NEW JERSEY.
    
      N. Y. Superior Court, Special Term ;
    
    
      March, 1891.
    
      Jurisdiction; N. Y. Superior Court.] The superior court of the city of New York has jurisdiction of an action against a foreign corporation for personal injuries received without the State, where plaintiff is a resident of this State, although not of the city of New York. Such jurisdiction existed under section 427 of the Code of Procedure, and if section 263 of the Code of Civil Procedure, subd. 7, be construed as attempting to restrict such jurisdiction to cases where the plaintiff is a resident of the city of New York, it conflicts to that extent with art. 6, § 12 of the State constitution, which preserves the existing jurisdiction of the court.
    Demurrer to complaint on the ground that the court has no jurisdiction of the person of the defendant or the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action.
    
      E. R. Terry, for plaintiff.
    
      De Forest & Weeks, for defendant.
   McAdam, J.

The complaint alleges that the plaintiff, who is a resident of the State of New York, while lawfully engaged in loading grain upon the cars of the defendant, in the State of New Jersey, and attempting to pass through an opening purposely made to assist in the loading, the defendant negligently, and without warning, violently moved the cars backward and suddenly closed the said space, whereby the plaintiff was jammed, his ribs fractured, and his arm broken, all without any fault on his part. As cars generally go forward, not backward, a person passing the rear end of a stationary train may, in the absence of some warning or signal of alarm, ordinarily suppose himself out of danger. There may be reasons in the present case why this is not so, but they do not appear by the complaint, and probably will not appear until the trial. The defendant was undef a duty to exercise care in backing the cars, proportionate to the danger (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 293), and the complaint clearly charges a neglect of such duty. Where different inferences may be drawn from the facts, or minds may differ concerning them, the question cannot be determined as one of law, but must be submitted to the jury (Swift v. Staten I. R. T. Co., 123 N. Y. 645). The complaint states a good cause of action, and the question to be considered is whether the court has jurisdiction of the parties, and of the subject matter involved. The defendant claims that, because the injury was inflicted in New Jersey, and the defendant is a corporation created under the laws of that State, this court has. no jurisdiction, and that to obtain it against a foreign corporation two things must concur : First, the plaintiff must not only be a resident of the State, but of the city of New York. Second, the cause of action must have arisen within the State of New York.

The argument is based on the phraseology of subd. 7 of section 263 of the Code, which, in view of other legislation, is in some respects confusing. Section 1780 provides that an action against a foreign corporation may be maintained by a resident of this State . . . for any cause of action.” This section is a codification of section 427 of the former Code, which provided “ that an action against a corporation created by or under the laws of any other State . . . may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, by a resident of this State for any cause of action.” So that, prior to ' the new Code, jurisdiction of actions like the present, both as to parties and subject matter, was clearly vested in this court. The jurisdiction so conferred was permanently continued by the provisions of the judiciary article of the Constitution as amended in 1869 (art. 6, § 12), and if section 263 of the Code-revision, or any subdivision thereof, in any manner limits or abridges the jurisdiction the court possessed at the time the revision went into effect, it is to that extent unconstitutional and void (Popfinger v. Yutte, 102 N. Y., 38). The right of action is transitoiy (McIvor v. McCabe, 16 Abb. Pr., 319; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182 ; Barney v. Bustenbinder, 7 Lans. 210; s. c., 64 Barb., 212), and if process is (as it was here), legally served within the county, the jurisdiction of this court, both as to subject matter and parties, is complete.

In Brooks v. Mexican N. C. Co. (49 N. Y Super. Ct. R. 234; 50 Id., 281), and Robinson v. Oceanic S. N. Co. (56 Id. 108; affi’d 112 N. Y. 315), the plaintiffs were non-residents of the State, a feature that distinguishes those cases from the one at bar, for the plaintiff' here is a resident of Brooklyn, in this State. In Brooks v. Mexican N. C. Co., supra, section 263 of the Code was discussed, and it was doubted whether this court, could take jurisdiction against the force of its provisions.

The constitutional objection to that section was neither discussed nor decided. That phase of the question is squarely presented now, and, as the objection is unanswerable, it must be met and sustained.

The opinion of the court of appeals, in Robinson v. Oceanic S. N. Co. (112 N. Y. 315, supra), read in connection with that in the Popfinger v. Yutte case (102 N. Y., 38, supra), clearly sustains the jurisdiction of the court as to both subject matter and parties. It. follows that the plaintiff is entitled to interlocutory-judgment, with costs, on payment of which the defendant may withdraw the demurrer and plead to the merits.  