Day v. Sun Insurance Office — 57 N.Y.S. 1033

Majority

p. 1033

DAY v. SUN INS. OFFICE.

(Supreme Court, Appellate Division, First Department.

May 5, 1899.)

Headnote

1. Courts—Jurisdiction—Nonresidents.

The courts of New York have no jurisdiction of an action brought by a resident of New Jersey against a foreign corporation on a contract entered into in New Jersey, and referring to property situate in that state.

3. Same—Motion to Dismiss—Time.

In an action against a foreign corporation the complaint alleged that plaintiff was a resident, and the answer denied it, and defendant proved

p. 1034

that plaintiff was a nonresident, and at the close of plaintiff’s case moved to dismiss because the court had no jurisdiction of the action. Sold, that the motion was made in time.

3. Same—Dismissal—Costs.

Costs may be awarded against a plaintiff in a case of which the court decides it has no jurisdiction.

Appeal from trial term, New York county.

Action by James Day against the Sun Insurance Office. From a judgment dismissing the complaint, plaintiff appealed.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY,, McLaughlin, and ingraham, jj.

Henry Thompson, for appellant.

Allan McCulloh, for respondent.

The action was brought upon a policy of fire insurance issued by the defendant. It is conceded in the pleadings that the defendant is a foreign corporation created under the laws of Great Britain. The property insured was situated in the state of New Jersey. The complaint alleges that the policy of insurance was-executed at Hackensack, in the state of New Jersey, and that allegation was satisfactorily proven upon the trial. Thé plaintiff bases his right to maintain this action against a foreign corporation upon this contract upon the fact, alleged in his complaint, that he is a resident of the state of New York. His residence was put in issue by the answer, and it was clearly shown upon the trial that at the time of the commencement of the action he was a resident of the state of New Jersey, and not a resident of the state of New York. He has no right, therefore, to maintain this action as a resident of the state, and the defendant insists that he has not brought himself within the provisions of the law under which a nonresident of the state may maintain an action against a foreign corporation in the courts of this state, and for that reason alone the complaint was properly dis-' missed. This question was raised at the trial by a motion to dismiss the complaint because the court had no jurisdiction. As it was alleged in the complaint that the plaintiff was a resident,'the defendant' was in no situation to insist, upon a want of jurisdiction until the' allegation of the complaint had been -disproved. He put it in issue," and disproved it by the plaintiff’s own testimony; and' then, at the close of the plaintiff’s case, which was the -first opportunity he had/ moved to dismiss the complaint for lack of jurisdiction; This motion was clearly in time, and we think it was properly made, and the complaint was properly dismissed upon that ground. The right of the courts of this state to take jurisdiction at the suit of a nonresident against a foreign corporation is given and regulated by section 1780 of the Code of Civil Procedure. The only subdivision of that section under which this suit could have, been brought under any circumstances is the first, which includes an action to recover damages for a breach of the contract made within the state. But it appears, not only that this contract was made in the state of New Jersey, but, that the property insured was situated in that state. The cause of action therefore arose in the state of New Jersey, and the courts of this state

p. 1035

have no jurisdiction over it at the suit of a citizen of that state, as the plaintiff was at the time his action was begun. The judgment must therefore be affirmed upon the ground that the court has no-jurisdiction of the subject-matter. This conclusion renders it improper to determine any of the questions presented upon the merits. Although the courts have no jurisdiction to entertain this action, yet they have the power, where the question of the jurisdiction of the subject-matter has been presented to them, to award costs, even when they decide that they have no jurisdiction of the action. Thiem v. Madden, 27 Hun, 371 . Where, a party brings into court a case over which the court has no jurisdiction, and the suit is dismissed for lack of jurisdiction, costs may be awarded against him, for he, by bringing his action, has submitted himself to the jurisdiction of the court. Simmons v. Simmons, 32 Hun, 551 . The affirmance, therefore, must be with costs against the plaintiff. AJ1 concur.