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Haight v. Le Foncier De France Et Des Colonies

84 N.Y.S. 135 Court N.Y. App. Term Decision date 1903-06-22 English

Delivered by MacLEAN, J.

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p. 135
HAIGHT v. LE FONCIER DE FRANCE ET DES COLONIES.
(Supreme Court, Appellate Term.
June 22, 1903.)

Headnote

1. Summons—Papers Authorizing Order op Publication.
An action- against a foreign corporation to recover damages for breach of a contract made without the state being authorized by Code Civ. Proc. § 1780, only when plaintiff is a resident of the state, and an order for publication of summons being required by section 439 to be founded on papers showing a sufficient cause of action, such an order made on papers not showing that plaintiff is a resident will be vacated.
Appeal from City Court of New York.
Action by Charles H. Haight against Le Fonder De France et Des Colonies. From an order denying a motion to vacate an order of publication, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Willoughby L. Webb, for appellant.
Peter A. Hargous, for respondent.

Upon a motion to vacate an order of publication herein, and to set aside all proceedings thereunder, it appeared from the verified complaint that the action was brought to recover damages from a foreign corporation defendant for the breach of a contract made in France, and to be performed in North America, by a firm of two persons, of whom the plaintiff was the successor; but there is nothing to show that the plaintiff was a resident of the state—a jurisdictional allegation necessary to the maintenance of the action (section 1780, Code Civ. Proc.), and, which omitted, no sufficient cause of action was shown, upon which to found the order (section 439, Id.). For reason of public policy, our courts are not to be

p. 136
vexed with litigations between nonresident parties over controversies arising outside of our territorial limits, and, the attention of the court having been called to the absence of the jurisdictional allegation, it should have vacated the order. It might ex mero motu at any time refuse to proceed further, and dismiss the action. Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315 , 19 N. E. 625 , 2 L. R. A. 636 .

Order appealed from reversed, and the defendant’s motion granted, with costs. All concur.

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