Brisbane v. Pennsylvania Railroad

premises and burned over some 300 acres thereof, destroying the fences, timber and growing trees thereon, to plaintiff’s damage in the sum of $5,000. Defendant’s demurrer to this complaint has been sustained, upon the ground “ that it appears upon the face of the complaint that the Court has not jurisdiction of the subject of the action.” Two reasons are advanced as justifying this judgment : First, that the action is one affecting real property without the State, and, therefore, the courts of the State will not take jurisdiction thereof; second, that it does not appear upon the face of the complaint that plaintiff is a resident of this State, and, therefore, he does not come within the provisions of section 178Ó of the Code of Civil Procedure, and cannot maintain this action in this State. As to the first reason advanced it may be said that it has been heretofore held that in a- cause of action for damages to realty the gravamen is negligence, and such an action is personal and transitory in its nature. (Barney v. Burstenbinder, 7 Lans. 210 .) This case was cited with approval in Home Insurance Company v. Pennsylvania Railroad Company ( 11 Hun, 182 ), wherein this very defendant disputed the jurisdiction of the Supreme Court in an action brought to recover damages sustained by plaintiff therein through being obliged to pay a claim under its policy of fire insurance, where the loss occurred through fire communicated by sparks from defendant’s locomotive to realty situated near Harrisburg^ in the State of Pennsylvania. The jurisdiction was there sustained. So that it had been expressly held, in an action against a foreign corporation by a domestic corporation, that the rule requiring actions in respect to real property to be brought in the forum rei sitm did not apply, where the action was one for negligence causing injury to realty. The general provisions of the statute with respect to the place of trial referred only to such causes of action as arose within the State. (Smith v. Bull, 17 Wend. 323 .) But apart from this the language of the 1st sentence of section 1780 of the Code is direct and unequivocal: “ An action against a foreign corporation may be maintained by a resident of the State, or by a domestic' corporation, for any cause of action.” The remaining sentence of that section describes the cases in which alone a foreign corporation or a non-resident may bring suit in this State, but in no way qualifies the 1st sentence. We are referred to no case against a foreign

corporation in which the plain meaning of the 1st sentence has been sought to be qualified or restricted. On the contrary, that it is to be literally construed seems to be clear from the opinion of Judge Earl, in Robinson v. Oceanic Steam Navigation Company ( 112 N. Y. 323 ): “ Under this section [referring to section 1780] a resident of this State, or a domestic corporation, can maintain an action against a foreign corporation for any cause of action, no matter where it arose.” • The terms of the section are again quoted in Grant v. Cananea Consolidated Copper Company ( 189 N. Y. 247 ). It seems clear, therefore, that if .the plaintiff is a resident of this State the court has jurisdiction of this action. The question finally to be decided, therefore, is whether the second reason advanced for affirmance is sound and whether the complaint was fatally defective in not setting forth plaintiff’s residence, for if he was a non-resident, the action could not be maintained .in this State. This question was raised in Ubart v. Baltimore & Ohio Railroad Company ( 117 App. Div. 832 ), and' it wras . there held-that “ Our Supreme Court being a court, of general jurisdiction its jurisdiction is presumed unless lack of jurisdiction appear on the complaint itself; ” that even where the complaint alleged the residence of plaintiff in this- State, no issue could be raised thereon by a mere denial, because it was-an unnecessary allegation '; and that the nón-residence of plaintiff was a defense which had to be pleaded as such in the answer tó be put. in issue. “ A plea to the jurisdiction for non-residence, or on any other question of fact, has to be made now as formerly by the defendant. The plea or defense of no jurisdiction has not been abolished.” (Id. 833.) The failure to allege that plaintiff was a resident of this State did not, therefore, justify the sustaining of the demurrer.

The final'judgment appealed from must, therefore, be reversed, ' with costs, and tlie demurrer overruled, witli costs, with leave to defendant on payment thereof to serve its answer within twenty days. ■

Ingraham, P. J., McLaughlin and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with - costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.