Gervias v. Chicago, Rock Island & Pacific R. Co. — 35 N.Y. St. Rep. 129

Majority

p. 129

George E. Gervias, Resp’t, v. The Chicago, Rock Island & Pacific R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Pleading—Demurrer—Jurisdiction.

Where it does not appear upon the face of the complaint that plaintiff is a non-resident the objection that the court has not jurisdiction of the person cannot be taken by demurrer.

(Van Brunt, P. J., dissents.)

Appeal from judgment overruling defendant’s demurrer to complaint.

Prescott Hall Butler, for app’lt; George H. Hart, for resp’t

This action was brought by the plaintiff against the defendant, a foreign corporation, to recover damages for injuries to his wife caused by their negligence. The complaint was demurred to upon three grounds, first, that the court had not jurisdiction of the person; secondly, that it had not jurisdiction of the subject of the action; and thirdly, that the complaint did not state facts sufficient to constitute a cause of action.

Dissent

p. 130

The proposition argued is that the residence of the plaintiff in this state was essential to confer upon this court jurisdiction of the cause of action urged against the defendants. The answer to this is found at once in § 488 of the Code, which provides in distinct terms that the defendant may demur to the complaint when it appears upon the face thereof that it has not jurisdiction of the person, or of the subject matter, or of the subject of the action, as' well as for other causes therein stated.- Now it does not appear upon the face of the complaint that the plaintiff is not a resident of the state of New York, and that disposes of the proposition.

The learned justice in the court below, in disposing of the demurrer, indulged in a somewhat elaborate opiniop covering other grounds, and going more extensively into the consideration of the subject than is deemed to have been necessary for the disposition of the question presented.

The supreme court is, by the constitution, made a court of general jurisdiction of law and equity, Art. 6, § 6, and its jurisdiction cannot be limited either by the legislature or by any power conferred by it upon the court itself. The People ex rel. Mayor v. Nichols, 79 N. Y, 582 .

It had unquestionable jurisdiction over the subject matter of this-action, therefore, and its authority to entertain it will be presumed as to the parties and the presumption continued until the question, is disposed of in the manner provided by the laws of the state. The manner provided is by demurrer or by answer. Code, §§ 488, 496; Johnson v. Adams Tobacco Co., 14 Hun, 89 . It is one of jurisdiction and always open to inquiry, it is true, but must be presented according to the rules of the forum in which the question is pending. If on the trial it appeared, for example,, that the plaintiff was not a resident of the state, the objection arising therefrom could be immediately urged and the proper result declared.

For these reasons the judgment appealed from should be affirmed, with liberty to the defendant to answer in twenty days on the payment of costs of the demurrer and appeal.

Daniels, J.—I concur in the result.

The supreme court is, by the provisions of the constitution, a court of general jurisdiction, but that does not imply that it has general jurisdiction over persons not residents of this state. The legislature may regulate the extent of such jurisdiction and determine under what circumstances it may be exercised, and where it provides that the court shall have jurisdiction, provided certain facts appear, it seems to me that such facts must be proven upon a trial, and if necessary to be proven they must be alleged.

I therefore dissent