Winchester v. Browne — 37 N.Y. St. Rep. 542

Majority

p. 542

George C. Winchester, Resp’t, v. T. Quincy Browne, App’lt.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

1. Jurisdiction—Action between non-residents.

The refusal of the court to entertain jurisdiction of an action between non-residents for a tort committed out of the state does not depend on the motion of the parties necessarily, but the court may refuse to do so upon its own motion.

.3. Same.

Where the plaintiff was a resident at the time of the commencement of the action, and it has_ been litigated on the assumption that the court would entertain jurisdiction, and has reached a point where a speedy trial can be had, a refusal to dismiss is a proper exercise of discretion.

Appeal from order denying motion to dismiss the action on the ground that the court should no longer entertain jurisdiction of the same.

Leon Abbett, for app’lt; A. W. Otis, for resp’t.

The plaintiff has been present as an inhabitant of this state for the period of eight years; and after he became such commenced this action against the defendant upon a cause of action arising in the state of Massachusetts. It has been litigated for the intervening period upon the assumption that the court would entertain jurisdiction of it; and it has now reached a point where a trial can speedily be obtained.

It should be borne in mind that this is an action in tort, both parties being non-residents, the cause of action arising out of the state; and the refusal of the court to entertain jurisdiction does not depend upon the motion of the parties necessarily. The court may refuse upon its own motion to entertain jurisdiction in such an action.

Whether the court would or would not retain jurisdiction in this action was a matter of discretion; and under the circumstances the discretion was fairly and reasonably exercised in the denial of the defendant’s motion.

The order should be affirmed, with ten dollars costs and disbursements to abide the event.

Van Brunt, P. J., Brady and Daniels, JJ., concur.