
    Celia E. English, as Administratrix, etc., of James S. English, Deceased, Appellant, v. New York, New Haven and Hartford Railroad Company, Respondent.
    First Department,
    April 3, 1914.
    Railroads—negligence causing death—action against foreign corporation operating portion of its line within this State — conflict of laws — action by non-resident plaintiff—when cause should be tried in foreign tribunal —jurisdiction of our courts.
    
      It seems, that a complaint in an action to recover for the death of an employee of a foreign railroad company, alleged to have been caused by negligence, is fatally defective in not alleging the statute of the foreign State in which the accident occurred and under the laws of which the defendant was incorporated, although the railroad company operates part of its line within this State.
    Although the fact that a foreign railroad corporation operates a portion of its line within this State may give our courts jurisdiction of an action against it for negligence causing death, the complaint must allege that the defendant for the purpose, among others, of suing and being sued is a domestic corporation. Hence, it seems, that if the complaint merely alleges that the defendant is a foreign corporation, it fails to state a cause of action for negligence causing death, under section 1780 of the Code of Civil Procedure as it existed in October, 1908, at which date the action was commenced.
    
      Where a railroad company incorporated under a foreign law operates a portion of its line within this State, service of process on its secretary within this State confers jurisdiction of an action to recover for negligence causing death brought by a resident plaintiff.
    But where the accident occurred in the foreign State where the defendant was incorporated, in which State the decedent resided and the plaintiff now resides, the cause should be tried in that State. Although the courts of this State may have jurisdiction, they are not obliged to exercise it under such circumstances.
    Appeal by the plaintiff, Celia E. English, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of May, 1913, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from the formal order entered in said clerk’s office on the 8th day of July, 1913, dismissing the complaint.
    
      Francis P. Burns, for the appellant..
    
      John M. Gibbons, for the respondent.
   Laughlin, J.:

After the plaintiff introduced her evidence and rested her case, counsel for defendant moved to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action “by proving any negligence on the part of this defendant.” The court reserved decision on the motion and took a recess. On reconvening the court announced that the complaint would be dismissed on the ground that the court was without jurisdiction, and the formal order and judgment followed.

This action is brought to recover damages alleged to have been sustained by the next of kin of one James S. English, who, on the 13th day of April, 1907, was in the employ of the defendant as a brakeman, and, according to the allegations of the complaint, solely through the negligence of the defendant on that day received injuries while engaged in the performance of his duty on. a train passing through Meriden, Conn., which resulted in his death.

The only facts alleged upon which it is' claimed the cause of action is vested in the plaintiff is her appointment as administratrix by the Probate Court of the district of Hartford, Conn., on the 27th day of October, 1907. The complaint does not show where the decedent resided; but the plaintiff testified that she was the mother of the decedent and that he resided with her in Hartford, Conn., where she still resides, and that he met with the accident from which he died in that State. On these facts appearing, and before the close of the evidence, counsel for defendant objected to the taking of further evidence on the ground that the court was without jurisdiction. The court thereupon intimated that the action should have been brought in Connecticut, but continued with the trial with a view to affording the plaintiff an opportunity to endeavor to extricate herself by obtaining ancillary letters if so advised.

The complaint was fatally defective in not alleging a statute of the State of Connecticut authorizing the action (Zeikus v. Florida East Coast Railway Co., 144 App. Div. 91); and neither was the complaint amended nor was any evidence offered showing that the State of Connecticut had conferred a right of action in such case. The dismissal of the complaint might well be sustained on that ground alone; but since the point was neither raised on the trial nor presented here we shall discuss the point on which the dismissal was predicated by the trial court.

Counsel for the plaintiff contended upon the trial and argues here that the court had jurisdiction on the ground that, although the defendant is a foreign corporation, it was alleged in the complaint and not denied by the answer that the defendant’s railroad extends into the State of New York, and that it owns and operates a railroad, in part, in this State. If those facts give the courts of this State jurisdiction, it is only upon the theory that, in such circumstances, for the purpose of suing and being sued, the foreign corporation will be deemed a domestic corporation; but even on that theory it should have been, but is not, alleged that the defendant is for the purposes, among others, of suing and being sued a domestic corporation. If the defendant is to be deemed, as alleged in the complaint, a foreign corporation, then by virtue of the provisions of section 1780 of the Code of Civil Procedure as it existed in October, 1908, when this action was commenced, the courts of this State are without jurisdiction, for the action is neither brought to recover damages for breach of a contract made within this State, nor is it one relating to property situated here or to the title to real property without the State, and the cause of action did not arise here. (See Laws of 1880, chap. 178, § 1780; since amd. by Laws of 1913, chap. 60.)

There is authority for the contention that this defendant will be deemed a domestic corporation for the purpose of suing and being sued, and although that question may not be said to have been authoritatively decided in favor of jurisdiction, I think the weight of authority tends to sustain the jurisdiction. In Phelps v. N. Y., N. H. & H. R. R. Co. (17 App. Div. 392) it was stated in the majority opinion of this court in discussing this question and referring to "this defendant as follows: “So far as its capacity to sue and be sued in the courts of this State is concerned, it is to be regarded as a corporation of this State. ” In that case Justice Ingraham concurred in the decision solely upon that ground. It had been previously held in New York, N. H. & H. R. R. Co. v. Welsh (143 N. Y. 411) that the defendant company, having been authorized by statute to extend its lines into this State, had the same authority as a domestic railroad corporation to acquire necessary lands by condemnation. In extension of this doctrine it has been frequently held that a foreign corporation, like a domestic corporation, is, for the purpose of determining the place of trial of an action against it, deemed a resident of every county through which it operates its road. (Polley v. Lehigh Valley Railroad Co., 138 App. Div. 636; affd., 200 N. Y. 585; Poland v. United Traction Co., 88 App. Div. 281; affd., 177 N. Y. 557.) It appears by the opinions of this court and of the Court of Appeals in Hoes v. N. Y., N. H. & H. R. R. Co. (73 App. Div. 363; 173 N. Y. 435) that this defendant was deemed to be a foreign corporation; but that question was not presented for decision and no reference was made to the earlier authorities herein cited. The question presented for decision in the Hoes case was with respect to the power of the surrogate to appoint an administrator here. The case of Ziemer v. Crucible Steel Company (99 App. Div. 169) likewise hinged on the same question. I am of opinion, therefore, that by service on the secretary of the defendant within this State jurisdiction over the defendant was acquired. (Grant v. Cananea Con. Copper Co., 189 N. Y. 241.) The jurisdiction, however, over a foreign corporation based on the fact that it has been permitted to acquire and operate part of a line of railroad in this State in the absence of more explicit legislation should only be exercised in favor of a resident plaintiff. The plaintiff failed to allege or to prove a single fact tending to show the propriety of bringing the action in this State. The accident occurred in a sister State where the decedent resided and the plaintiff resides and where the defendant was incorporated. Manifestly, the issue should be tried in Connecticut where the cause of action arose; and although the courts of this State have jurisdiction, they are not obliged to exercise it in such circumstances. (Collard v. Beach, 81 App. Div. 582; Hoes v. N. Y., N. H. & H. R. R. Co., supra, 369; Zeikus v. Florida East Coast R. Co., supra; Ziemer v. Crucible Steel Co., supra; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.) The case of Zeikus v. Florida East Coast R. Co. (supra,) was distinguished in Zeikus v. Florida East Coast R. Co. (153 App. Div. 345); but in that case the decedent was a resident of this State and the administrator was appointed here.

It follows that the judgment and order should be affirmed, with costs.

Ingraham, P. J., McLaughlin and Scott, JJ., concurred; Hotchkiss, J., concurred in result.

Judgment and order affirmed, with costs.  