O'Brien v. Peoria Water Co. — 5 A.D. 229

Majority

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Edward D. O’Brien and Lewis V. Booraem, as Receivers of The Moffett, Hodgkins and Clarke Company, Respondents, v. The Peoria Water Company, Appellant.

Headnote

Jurisdiction of actions between foreign corporations — a complaint demanding damages for a breach of contract and praying for its specific performance — •when the prayer for relief will be disregarded.

A New Jersey corporation was tlie assignee of a contract, made by its assignor, a co-partnership, with the defendant, an Illinois corporation, at the city of New York, under which the co-partnership was to and did render services in constructing water works for the defendant, of the value of §75,000, which had not been paid. Thereafter the New Jersey corporation became insolvent and went into the hands of receivers who were substituted as plaintiffs in an action brought by such corporation, the complaint in which demanded damages in the sum of §75,000 for a breach of such contract by the defendant.

Held, that the courts of the State of New York had jurisdiction;

That as the cause of action arose under a contract made at the city of New York it came within the first subdivision of section 1780 of the Code of Civil Procedure.

The complaint stated as a second cause of action that the defendant agreed to deliver to the co-partnership certain stocks and bonds, §10,000 of which bonds had never been delivered, and demanded as specific relief that the defendant deliver to the plaintiff §10,000 in bonds — while it appeared that the work to

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be done by the co-partnership was to be done in Illinois, it did not appear that the payment hy means of the bonds was to be made in Illinois.

field, that as the contract was made in New York the presumption was that the bonds were to be delivered there, and that the cause of action for their nondelivery would come within the third subdivision of section 1780 of the Code of Civil Procedure;

That to meet the criticism that two causes of action, one for damages and the other for specific relief, were improperly joined, the court would disregard the prayer for relief in the nature of specific performance, and would regard the cause of action as one for damages for the breach of the agreement to deliver the bonds, as the complaint contained averments sufficient to sustain the second second cause of action as one for damages.

Appeal by the defendant, The Peoria Water Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of of February, 1896, denying the defendant’s motion to dismiss the summons.

John M. Shedd, for the appellant.

Louis Marshall, for the respondents.

This is an appeal from an order denying defendant’s motion to dismiss this action, which motion was made upon the ground that the court did not have jurisdiction of the subject-matter in controversy between the parties, inasmuch as they are both foreign corporations and neither of the two causes of action set forth in the complaint was of such a character as conferred jurisdiction upon the court under section 1780 of the Code of Civil Procedure. The plaintiffs now upon the record are receivers of a New Jersey corporation which originally brought this action against the defendant, an Illinois corporation. The original plaintiff was the assignee of a contract made by the defendant at the city of New York with a co-partnership, by which contract, it is alleged in the complaint, such co-partnership was employed to render services to the defendant, which services were duly performed and were of the value of $75,000, which the defendant has not paid. Subsequent to the institution of the suit, the New Jersey corporation went into the hands, of receivers, who became substituted as plaintiffs by order of the court, and seek to enforce the indebtedness against the defendant

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arising out of the non-payment of the moneys alleged to" be due= under the contract made with the co-partnership above referred to.

There can be no question that the court had jurisdiction of the first cause of action set forth in the complaint. It arises under a contract made at the city of New York between parties who contracted at that place, and, therefore, is clearly within the 1st subdivision of section 1780. There is no force whatever in the criticism that inasmuch as the action is to recover an amount due under the contract, it is not one to recover damages for a breach of the contract. The non-payment of the money secured by the contract is a breach and there could be no cause of action if there had been no breach, and the proper construction of the 1st subdivision of the section referred to makes that section applicable to such a cause of action as that first set«forth in the complaint.

Concerning the second cause of action, it is specifically stated in the complaint that the contract for building the water works for the defendant was made with the co-partnership above referred to at the city of New York. It was a contract made between individuals and the defendant. The corporation of which the plaintiffs are receivers acquired its rights by assignment from these individuals, and the right of a foreign corporation to maintain an action depends upon the nature of the contract, for it is to be enforced, if at all, under the right of the parties with whom the defendant contracted. The obligation of the defendant was to deliver to those parties certain bonds and stock, and the allegation of the complaint is that $10,000 of bonds have'not been delivered. The contract was made at the city of New York; the work to be done by the co-partnership was to be done in Illinois; but there is nothing to show that the payment of the bonds was to be made there. On the contrary the inference would be that it was to be made in the city of New York, where the contract was made, and, therefore, regarding this as a suit between foreign corporations, the ' cause of action for the nondelivery of these bonds would be one coming under the 3d subdivision of section 1780, and an action would lie for a breach of the contract. It is claimed, however, by the defendant that inasmuch as the specific relief is demanded as to this second cause of action, that the defendant deliver to the plaintiffs $10,000 in bonds, the suit as to the second cause of action is one for specific perform

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anee. It is true that the complaint is open to the criticism referred to, and that seemingly two causes of action are united, one for damages for the breach of a contract to pay a fixed sum of money, and the other for specific performance; but it is plain that the prayer for relief, with reference to the second cause of action, may be disregarded, and that cause of action be proceeded with as one for damages for the breach of the agreement to deliver $10,000 in bonds, and that being so, the two causes of action may stand together, there being sufficient averments in the complaint to sustain the second cause of action as one for damages.

¥e are of opinion that the court below was right in refusing to dismiss the action for want of jurisdiction, and that the order must be affirmed, with ten dollars costs and disbursements.

Barrett, Rumsey, Williams and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.