Spencer v. Rogers Locomotive & Machine Works — 21 N.Y. Super. Ct. 612

Majority

p. 612

Richard P. Spencer, Plaintiff and Respondent, v. The Rogers Locomotive and Machine Works, Defendants and Appellants.

Headnote

1. In an action in the Superior Court of the City of Hew York, against a foreign corporation, where the complaint states a cause of action of which the Court has jurisdiction, it is unnecessary to aver that the plaintiff resides within the City of Hew York.

2. A cause of action against a foreign corporation, as indorser of a promissory note, which, by its terms, is payable in the City of Hew York, is a cause of action arising within that City; and the Superior Court has jurisdiction thereof, though the plaintiff be a non-resident.

3. Where the complaint against the indorser of a promissory note, alleges due demand, non-payment and protest, and that the defendant had due notice of such non-payment and protest, it is sufficient, without averring notice of the demand also.

(Before Bobworth, Oh. J., and Woodruff and White, J. J.)

Heard, Hovember 7;

decided, November 30, 1861.

Appeal from a judgment on account of the frivolousness of a demurrer to the complaint. This action was by Richard P. Spencer, against The Rogers Locomotive and Machine Works, as indorsers of a promissory note.

The substance of the complaint is stated in the opinion. The averment of dishonor and notice, was in the following words; “that at the maturity of the said note, the same was duly presented at the place of payment therein mentioned, and payment thereof demanded and refused, whereupon the same was protested for non-payment, of which non-payment and protest the defendants had due notice, but that the said note is still wholly due and unpaid.”

The defendants demurred to the complaint; and there

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upon the plaintiff moved for judgment on the ground of the frivolousness of the demurrer.

The motion was heard before Mr. Justice Woodruff, at Chambers, on the 16th of July, 1861, who granted it, and from the judgment entered thereon, the defendants appealed to the Court at General Term.

H. N. Beach, for defendants, (appellants.)

I. This Court has no jurisdiction, because the complaint does not show that the action, which is against a foreign corporation, is for the recovery of a debt or damages, arising upon contract made, executed or delivered within this State, or upon a cause of action arising in this State. (Code, § 33, subd. 3.)

1. Foreign corporations, at common law, could not be sued here, (McQueen v. The Middletown Company, 16 Johns., 7 ,) until the adoption of the Bevised Statutes, which allowed a resident of this State to sue them by attachment. (2 Rev. Stat., 459, § 15, Note of the Revisers to § 30, McDonough v. Phelps, 15 How. Pr. R., 376.)

2. Jurisdiction was afterwards first conferred upon this Court. (Laws of 1849, ch. 107, p. 142 ; Laws of 1849, ch. 438, § 33, subd. 3, p. 621 ; amending Code of 1848, Laws, ch. 379, § 39, p. 504 ; Laws of 1849, ch. 438, § 427.)

3. The amended Code of 1849 does not authorize a resident of this State to bring an action in this Court against a foreign corporation for every cause. Section 427 does not enlarge section 33. “If a particular thing be given or limited in the preceding part of the statute, this shall not be taken away or altered by any subsequent general words of the same statute.” (Bacon’s Abr., Stat., I, 2 ; Sedg. on Stat. and Cons. Law, 423.)

4. But if it be held that the jurisdiction of the Court extends to any cause of action against a foreign corporation, irrespective of the place where it arose or the subject of it is situated, if brought by a resident plaintiff, then the complaint must show on its face, that the plaintiff is

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a resident of this State, or this Court will have no jurisdiction.

The Court is created by special statute, and of local and limited powers. (In re John Jay, 5 Sand., 678 ; Delafield v. Wright, 3 Id., 747 ; Day v. U. S. Car Spring Co., 2 Duer, 608 ; Brahe v. The Pythagoras Association, 4 Id., 658 .)

It is, therefore, as to this question, an inferior Court within its own definition. (Simons v. De Bare, 4 Bosw., 554 .)

Hence there should appear in the complaint sufficient to show that it has jurisdiction. (Simons v. De Bare, supra ; Frees v. Ford, 2 Seld., 178 ; Burkcle v. Eckhart, 3 Comst., 137.)

In this case the plaintiff must be a resident to maintain this action, under section 427 of the Code; and the complaint must show it affirmatively to give the Court jurisdiction. (House v. Cooper, 16 How., 293 ; Clason v. Corley, 5 Sandf., 454 ; S. C. affirmed, 4 Seld., 428.)

In attachments against a foreign corporation, where the right to a writ or warrant depends on the residence of the plaintiff, it was always necessary that the fact of such residence should affirmatively appear in the affidavit. (Staples v. Fairchild, 3 Comst., 43 ; McDonough v. Phelps, 15 How., 377 .) And by a parity of reason, the fact of plaintiff’s residence must be alleged in the complaint, when the cause of action shall not have arisen, or the subject of the action shall not be situated, within this State.

H. The complaint is insufficient to constitute a cause of action; for it contains no allegation of due notice of presentment or demand.

I. Hotice of protest is immaterial in the case of a promissory note. (Bank of Utica v. Smith, 18 Johns., 240 ; Hunt v. Maybee, 2 Seld., 269.)

2. notice of non-payment is not sufficient. The indorser must have notice of presentment or demand, and of non-payment. (Spellman v. Weider, 5 How., 6 ; Adams v. Sherrill, 14 Id., 298 ; Pahquioque Bank v. Martin, 11 Abb., 291 .)

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F. N. Bangs, for plaintiff, (respondent.)

I. Facts relating purely to the jurisdiction of this Court, "but not constituting a part of the cause of action, need not be averred in the complaint. If they need be averred, the residence of, or service on, the defendants, within this city, must be alleged in certain actions, which is not the practice.

II. The complaint is only required to state the cause of action. (Code, § 142, [120,] subd. 2.)

III. A defendant cannot demur because the complaint • fails to show jurisdiction, but only because the complaint shows that the Court has not jurisdiction.

IV. This does not appear here. (Code, § 427, subd. 1.)

V. An answer merely averring that defendant is a foreign corporation, would not be sufficient to defeat the action, and the same averment in the-' complaint cannot have a greater effect.

The complaint in this case sets forth, that the defendants were and are a body corporate created by the Laws of the State of Hew Jersey; that on October 29th, 1860, the corporation called the-Memphis and Charleston Bailroad Company made their promissory note, bearing date at Memphis on that day, for $3,344.77, payable to the order of the defendants, six months after date, at the Bank of America," in the City of Hew York, and delivered it to the defendants, who indorsed it and delivered it so that it came to and is now held by the plaintiff; that it was duly presented for payment at the Bank of America at maturity, and payment refused, of which due notice was given to the defendants.

The defendants demurred to the complaint upon the alleged ground that it appeared upon the face of the complaint :

1. That the Court has no jurisdiction of the person of the defendants or the subject of the action.

2. That the complaint does not state facts sufficient to constitute a cause of action.

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The main error upon which this demurrer is founded, is the supposition, that it is necessary in a complaint in this Court to aver jurisdiction; that is, to aver facts independent of the cause of action, the existence of which is, in certain cases, necessary to confer jurisdiction—such as, the residence of the plaintiff in an action against a foreign corporation, when neither the cause of action has arisen, nor the subject of the action is situated within the State. But this is- a mistake. Jurisdiction is presumed, unless it ' appears upon the face of the complaint that the Court has not jurisdiction of the action; that is, in the case supposed, jurisdiction is presumed unless it should be averred, or made distinctly to appear in the complaint, that the plaintiff was a non-resident.

But even if the plaintiff were a non-resident in the case before us, I think that sufficient facts appear in the complaint to give this Court jurisdiction. The action is upon a promissory note made payable at the Bank of America in the city of Hew York. Upon the demand and nonpayment, and notice to the indorser, a cause of action immediately arose, and accrued to the holder in this city. (Bank of Commerce v. Rutland and Washington R. R. Co., 10 How., 1 ; Burckle v. Eckhart, 3 Comst., 132 ; Cooper v. Earl of Waldegrave, 2 Beavan’s Rep., 282 ; Story Confl. of Laws, §§ 282-287.)

The averment of notice of non-payment and protest, which is supposed to be defective, and is relied upon in support of the second alleged ground of demurrer, is, we think, sufficient.

The judgment must therefore be affirmed, with costs.