
    Sprague National Bank, Respondent, v. Erie Railroad Company, Appellant.
    
      Action for an invasion of the plaintiff’s right in land in a foreign State must be brought in that State — when an objection to the jurisdiction of the Supreme Court of the State of New Torh to hear it is not waived.
    
    The remedy of a lessee of premises in New Jersey, for an invasion by the successor in interest of the lessor of the lessee’s right to use the land, is by an action of trespass guare clausum fregit instituted in the courtg of the State of New Jersey.
    Where the complaint in an action brought, by the lessee against the successor in interest of the lessor, in the Supreme Court of the State of New York alleges a cause of action for the conversion of buildings erected by the lessee upon the demised premises, and the proof establishes only an invasion of the lessee’s right to use the land, the defendant is not precluded from raising an objection to the jurisdiction of the court by the fact that he did not interpose that objection before the trial or at its outset, as he was not bound to anticipate that the plaintiff would establish a trespass upon land in another State.
    Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of March, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term, the parties having waived their right to a trial by jury.
    
      F. B. Jennings [Howard Van Sinderen with him on the brief], for the appellant.
    
      Edward M. Grout, for the respondent.
   Willard Bartlett, J.:

This is an action to recover damages for the alleged conversion of two buildings situated upon the premises which were the subject of a lease considered by this court in a previous litigation between the same parties. (Sprague National Bank v. Erie Railroad Co., 22 App. Div. 526.) The premises are situated at Jersey City in the State of New Jersey. In that case the plaintiff, as the transferee of the rights of the lessees, sought to recover damages against the defendant for a breach of the covenant of quiet enjoyment contáined in the lease. It appeared, however, that the defendant had acquired the property of the lessor upon a sale in foreclosure under a mortgage executed by the lessor prior to the letting; and we decided that the action' could not be maintained, because the purchaser took title from the time of the mortgage and there was no privity of contract or estate between the mortgagee and lessee, or between the lessee and purchaser. |

After stating this conclusion, Mr. Justice Brad lev, who wrote the opinion, added this observation : So far as relates to the buildings put upon the premises by the lessees for the pui’poses of trade and business, a different question is presented. They were not within the grant of the mortgage, and the denial by the defendant of the right of the plaintiff to remove them was properly the subject of action for the recovery of damages.”

The present suit is based upon an alleged conversion by the defendant of two of the buildings to which Mr. Justice Bradley thus referred. The charge in the complaint is that on or about December 1, 1895, the .defendant converted the said buildings to its own use, to the plaintiff’s damage in the sum of $20,000, and the learned trial judge has found that “ on November 30 or December 1, 1895, the defendant wrongfully entered upon the said premises without plaintiff’s consent, and took possession thereof and of the said buildings, and held the same and converted the said buildings to its own use.”

It will be noticed that Mr. Justice Bradley sqtoke of the denial by defendant of the right of 'the plaintiff to remove the buildings as being properly a subject of action for the recovery of damages. I fail to find in the present record anything which amounts ¡to proof of such a denial, or anything sufficient to sustain a finding of conversion.

It is true that the defendant has asserted its right to the possession of the land and has actually taken possession of the sanie ; but the evidence does not disclose any act on the part of its officers or agents except such as were appropriate to the enforcement ■ of its claim to .the possession of the land. The defendant does' not appear to "have done anything which can fairly be construed as an attempt to exercise any dominion whatever over the buildings in question as personal property distinct from the land. . Much' less does the evidence show any denial of the right of the plaintiff to remove these structures.

Under date of November. 15. 1895, the Erie Railroad Company addressed a communication to the original lessees and to the plaintiff, notifying them of the transfer to that company of the franchises and property late of the New York, Lake Erie and Western Railroad Company, pursuant to the foreclosure sale under the judgment of the United States Circuit Court, and stating that the purchasers had elected not to assume the lease of the premises in question. In this communication it was further stated that- it was intended that the Erie Railroad Company, on November 30, 1895, should enter into possession of its property under the decree and conveyances in foreclosure. In the language of this notification I can discover nothing from which to spell out a conversion of the buildings erected by the lessees, or a denial of their right or the right of. their assignees to take such buildings away whenever they might so desire. Since the spring of 1896, or perhaps as early as December, 1895, the defendant has had a watchman on the premises, but he has been in a brick building, whereas this action relates only to the wooden buildings. In one of these wooden buildings lives another watchman, who was originally put in possession by a purchaser of the property from-whom the plaintiff acquired it. He seems to have remained there continuously since 1891, but in what capacity, from the time when the Erie Railroad Company resumed possession of the land, does not appear. Assuming that he is there with the sanction of the defendant, there is not a syllable of testimony to indicate that he has ever done anything more than to act as. a caretaker, or that he has ever in any wise assumed an attitude of hostility to any claim in respect to the buildings which might exist in behalf of. the plaintiff.

' The learned counsel for the appellant speaks of the plaintiff as having two distinct property rights upon the premises, one partaking of the nature of realty, and consisting of the right to use the land, and the other being purely personal and consisting of the right to use removable fixtures on the premises for a period of years and then to remove them. It seems to me that the utmost that the plaintiff can be regarded as having proved in this case is an invasion of its right to use the land. The only appropriate remedy for such an invasion is an action of trespass guare clausum fregit, which cannot be maintained in New York in reference to land situated in New Jersey. (Américan Union Tel. Co. v. Middleton, 80 N. Y. 408; Cragin v. Lovell, 88 id. 258; Dodge v. Colby, 108 id. 445.) Here, as in the first of the cases cited, the acts alleged to constitute a conversion were so connected with the trespass as to form one and the same transaction, for which the plaintiff could have legal redress only by means of art action for trespass instituted in the State where • the" trespass was committed.

This point is available to the appellant, although no objection to the jurisdiction of .the court was made before the trial or at its outset. If the complaint had set ont a cause of action for trespass upon real property in New Jersey, and the defendant had submitted to the-jurisdiction of the Supreme Court here-without objecting to its authority to hear the cause, the resulting judgment might be held binding on the ground of waiver, as was the case in Sentenis v. Ladew (140 N. Y. 463). But the complaint was a complaint for conversion only; and the defendant was not bound to anticipate that the proof in support of it would make out nothing more than a trespass upon realty in another State. _ .Under such circumstances, a failure to object to the jurisdiction did not constitute a waiver.

For the foregoing reasons I think that the judgment should be reversed.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  