Perry v. Erie Transfer Co. — 49 N.Y. St. Rep. 36

Majority

p. 36

Oliver H. Perry, Resp’t, v. The Erie Transfer Co., App’lt.

(City Court of New York, General Term,

Filed November 25, 1892.)

Headnote

Jurisdiction—Contract made out of state by non-residents.

The parties hereto, who were residents of New Jersey, made a contract in that state by which plaintiff was to furnish defendant with trucks and horses as needed. In an action therefor there was no evidence that the price was to be paid in this state. Held, that the contract having been made in New Jersey, its breach must have occurred there, and that the court improperly denied a motion to dismiss for want of jurisdiction.

Appeal from judgment in favor of plaintiff, entered upon verdict.

Andrew Wesley Kent, for app’lt; Strong & Cadwalader, for resp’t

The plaintiff is a resident of New Jersey. The defendant is a New Jersey corporation having an office in this city.

The plaintiff, who is a truckman, contracted with defendant in his office in Jersey City to furnish defendant with horses and trucks as required.

The principal part of the trucking was done in this city.

Plaintiff sues for trucking done in the months of September and October, 1890.

p. 37

Defendant submitted no testimony, and by direction of the ■court the jury rendered a verdict for plaintiff for $281.98.

At the close of plaintiff’s case defendant moved to dismiss the complaint, on the ground that the court had no jurisdiction; that the plaintiff could not maintain the action because he was a nonresident and the defendant a foreign corporation; that plaintiff had not shown that the contract of hire was made in New York, or that there was any agreement that the price should be paid in New York city; which motion was denied.

In denying this motion, we think that the trial justice erred. The contract of hiring was entered into in Jersey City, and the defendant was not bound to pay for such hiring in this city, not having contracted to pay here. Therefore, it seems to us clear that the contract having been made in New Jersey, and its breach, if any, must have occurred there, and the plaintiff and the defendant both being residents of that state, that this court has no jurisdiction of this action, it not being included in ■§ 1780 of the Code •of Civil Procedure.

The plaintiff is mistaken in his statement that the allegations in his complaint to the effect that it was expressly or implicitly agreed that the defendant should pay for said hiring in the city of New York is not denied; on the contrary, the defendant’s answer positively denies that allegation, and therefore plaintiff was required to prove the same, that being a material allegation, which he failed to do.

The complaint should have been dismissed. Judgment is therefore reversed, and complaint dismissed, with costs.

Newburger, J., concurs.