Porter v. Lord

This court has jurisdiction of the actions mentioned in §§ 123 and 124 of the Code, without reference to the residence of the parties. (Code, § 33, sub. 1.)

Its jurisdiction of certain other actions depends upon the fact of the residence of all the defendants, or of the service of the summons upon all of them personally within the city of New York. If one of several defendants jointly liable on contract resides, or is personally served with the summons, in that city, this court has jurisdiction of the action.

When it has jurisdiction of the action by reason of the residence of one of such defendants, or the service of a summons upon him personally within the city, can it acquire jurisdiction of the person of the other defendants by a service of the summons upon them personally, in any county of the state other than the city and county of New York?

The Code is divided into two parts. (§ 8.) The second part is distributed into fifteen titles. The last eleven relate to actions in the Superior Court, as well as to those in the Supreme Court, The fifth title of the second part contains the provisions which prescribe the manner of commencing civil actions. They shall be commenced by the service of a summons. (§ 127.) The summons may be served by the sheriff of the county where the defendant may be found, or by any person not a party to the action. (§ 133.) These sections are made to relate to the Superior Court by the express provisions of § 8.

These sections, and subdivision 2 of § 33, are in harmony with each other.

If the action be one which, by §§ 123 and 124, must be tried in this city, then the legislature has enacted that the plaintiff may commence it in the Supreme Court, or in the Superior Court, or

If all the defendants reside in this city, the same course may be' pursued.

If one of several persons jointly liable on contract resides in the city, that fact alone is made the ground of jurisdiction. If no one of the defendants resides in this city, then service "within the city is made indispensable to the acquisition of jurisdiction. If the action be such that a plaintiff may proceed in it after service has been made upon one, such service is sufficient to give full jurisdiction of'the action. In other cases, the service must be made on all the defendants within the city.

The rule, then, briefly expressed, is this: When the action must be tried in this city, because it is one of those mentioned in §§ 123 and 124, or when all the defendants reside in this city, or when one of several defendants jointly liable on contract resides in the city, this court has jurisdiction of the action, and the defendants may be served with the summons in any county of the state.

Any other construction would lead to an absurdity. Actions for the partition of real property, and for the foreclosure of a mortgage of real property situated in this city, must be tried within it — -being actions which are enumerated in § 123. This court has jurisdiction of them. The mortgagor and incumbrancers, who are necessary parties, may reside in Kings or Westchester, or in other counties of this state. ' If this court cannot proceed in the action until all the necessary parties have been served with the summons within this city, the fact that it has jurisdiction, would, in many, if not in most of such cases, be a matter of no practical utility.

Of actions of which this court and the Common Pleas have jurisdiction, either for the reason that the cause of action has arisen, or the subject of the action is situated within this city, such jurisdiction was conferred to enable them to aid the Supreme Court in transacting business which the latter, nor either of these courts could alone perform. The law which provides by what means the Supreme Court shall acquire jurisdiction of the parties to such actions, declares that this court may employ the sainé means to effect the same end. The only law which provides that

If a valid service of the summons, when the action is in this court, can in no case be made in any county other than the county of Hew York, then the provision which makes, in certain cases, service within the city essential to acquiring jurisdiction, is simply absurd. In some actions, all the defendants must be so served, or the court will have no jurisdiction. In others, it is enough that one of several defendants is so served. In other cases, it is enough that one of several defendants resides within the city. In others, it is essential that all of the defendants reside within the city— but that is only essential when jurisdiction depends on residence alone. In- others, it is of no consequence where any of the defendants reside.

The fact that service within the city is required in certain cases, of course implies that in other cases it may be made out of the city. Section 138, gives the general rule. That authorizes service of the summons in any county in which the defendant may be found. That general rule is, by section 33, so modified, as to certain local courts, as to require that in certain actions the summons must be served within the cities in which these courts respectively sit. That is the only modification of the general right to serve it in any county. I think it is quite clear that the service made on Dougherty is regular and valid.

Persons residing out of the city are not, by this -construction of the Code, subjected to inconveniences, which they would not suffer if sued in the Supreme Court in the first district.

That court may remove into it, by order, any action commenced, in this court, and may change the plaee of trial, unless the action be one which, by sections 123 and 124, is required to be tried in the city and eounty of Hew York.

If it must be tried in this city — or if all the defendants reside