Perry v. Erie Transfer Co. — 53 N.Y. St. Rep. 136

Majority

p. 136

Oliver H. Perry, App’lt, v. The Erie Transfer Co.,Resp’t.^[1]

New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

1. JuBisDicTicm—Contract made, out of state by non-residents.

" The parties hereto; who. were residents of New Jersey,; made a contract-in that slate by which plaint j£E was to furnish defendant with trucks .and-horses as needed. In an action -therefor there was no evidence that payment- therefor was to be made in this state, hut-only that bills were presented and certain checks given were payable.-here. Held, that the courts of this state had.no jurisdiction of the.action.

2. Same.

Jurisdiction cannot be conferred by a defendant’s admissions or consent, when-the £acts;in evidence show ,that the court has.none of the subject, matter.

Appeal from adjudgment of the general term of-the city court of New York, which reversed., a judgment for plaintiff rendered upon-¡a. verdict, directed'by the court at .trial term and awarded judgment absolute for defendant for dismissal of ;the. complaint, -with -.costs.

Action.to recover,fpr the hire of teams.upon.a contract made-in New Jersey between a, .resident of .that state and. a corporation created by .-its laws.

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

This is an action by a non-resident of this state, against a .foreign interdicted, to our courts by § 1780 of "the Code of Civil Procedure, except in the instances therein mentioned. On á former trial we reversed .a judgment for plaintiff because it- did not appear that the cause óf action arose within.this state, and directed a new trial .to enable plaintiff to submit further evidence if such he had.. Perry v. Erie Transfer Co., 28 Abb. N. C., 430 ; 46 St. Rep., 185 . The second.trial again, resulted in a judgment for plaintiff which was reversed' and judgment absolute directed for theidéfendant. for dismissal of the complaint by 'the general term of the court, below. The justices at general term were of the opinion that the evidence, introduced'for plaintiff on the second trial was insufficient to remove the objection to the maintenance of this action,, bnd in their vie:ws we concur.

.The. denial in the answer was sufficient to put the allegations-of the amended complaint respecting the place of payment in issue,,B.aylies’ Code Blending, 226,.§4, but in any event plaintiff is precluded from availing'himself .of any objection to the an

p. 137

swer for the first time on appeal. Besides, jurisdiction could not have been conferred by defendant’s admissions or consent when the facts in evidence show that the court has none of the subject-matter. There was no course open but to dismiss the complaint. See the opinion of this court on the former appeal. The judgment of the general term below must, therefore, be affirmed with costs.

Judgment of the general term below affirmed, with costs.

Pryor, J., concurs.