
    Thomas J. Pope et al., Resp’ts, v. The Terra Haute Car and Manufacturing Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Complaint—When leave to amend granted.
    Where, on an application by the plaintiffs for leave to amend the complaint, it was objected by the defendants that the plaintiffs were non■residents, and the defendants were a foreign corporation, and that the cause of action did not arise in the state, it appeared that the cause had been prior to the application decided upon its merits, and an appeal had been taken and decided Held, that the plaintiffs should not be deprived at this stage of the controversy of their right to prosecute their action by the interposition of an objection that the court had no jurisdiction; that the application should be granted.
    Appeal from an order granting the plaintiffs liberty to amend the complaint.
    
      Stephen O. Lockwood, for app’lt; Thomas Darlington for resp’ts.
   Brady, J.

—This action has several times been entertained by the court of appeals, the last decision made by that tribunal appearing at page 61 of the 107th volume (11 N. Y. State Rep., 209) of the Yew York Reports. The judgment in favor of the plaintiffs was by that adjudication reversed upon the ground that the complaint did not allege when the contract sued upon was to be performed, and did not allege performance or offer or .tender of performance within the time, a decision which induced the application made by the plaintiff to amend the complaint in these respects. The answer made to the application rests chiefly upon the proposition that this court has no jurisdiction of this action, for the reason that the plaintiffs are non-residents and the defendants a foreign corporation,, and that ,the cause of action did not arise in this state. We do not consider it at all necessary to discuss the question of jurisdiction. It is not an answer to such application as this, especially after the cause has been decided upon the merits in favor of the plaintiff, and appeals have been taken to the court of appeals. The learned judge in. the court below properly suggested in the opinion delivered by him upon granting the motion that if the plaintiffs-really had the cause of action which they asserted, it seemed to him that it would be most unjust to prevent them from setting it up, and we concur in this view. The plaintiffs should not be deprived at this stage of the controversy of the right to prosecute their action by the successfulinterposition of the objection that the court had no jurisdiction. It should not be disposed of upon a motion like this. For these reasons the order, appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.

Van Brunt, P. J., and Daniels, J., concur.  