p. 235city. This attachment the defendant moved to set aside upon the ground that the court had not jurisdiction of the action. The motion was founded upon the summons and complaint, the affidavit upon which the attachment was obtained and an affidavit used by plaintiffs on July 11, upon an application to examine a witness before trial. By this latter affidavit it appeared that the plaintiffs, except two of them, were non-residents of this city. These two were residents. The motion was made before issue joined; but on the argument of the motion, plaintiffs’ attorney read defendant’s answer and his own affidavit, and sought to sustain the attachment by the proposition, that as the defendant had appeared and answered and omitted in its answer to set up as a defense, the fact that some of the plaintiffs were non-residents, the defendant must be held to have waived the defect. From an order granting the motion this appeal is taken.
Henry D. Hotchkiss, for appellants.
—The cause of action was joint, as the several owners of a ship make but one owner (see Abbott on Ship. 5th Am. Ed. Story & P. Notes, 146; Coster v. N. Y. & E. R. R., 3 Abb. Pr. 332 ); and the remedy was equally joint, and the residence within the city of some of the plaintiffs conferred upon this court jurisdiction of the whole controversy (Hobert v. E. Tenn. Va. & Ga. R. R. Co., 4 Law Bul. 26; People ex rel. Mills v. Superior Court, &c., 19 Wend., 119 ; Porter v. Lord, 4 Duer, 682 ). The court below based its decision upon Harriott v. N. J. R. R. Co. ( 8 Abb. Pr. 284 ), but in that case it did not appear that any of the plaintiffs were residents of the city. Having failed to plead its objection, § 226, providing that the jurisdiction of a superior city court is always to be presumed, etc. gave the court jurisdiction of the cause of action, and by its appearance and answer defendant waived the privilege of § 1780, which is personal in nature. Under section 447 Code Procedure, which is similar to section. 1780 {supra), it was held that a voluntary appearance and answer to the merits, was a waiver of
p. 236an objection similar to that involved herein (McCormick v. Penn. R. R., 49 N. Y. 303 ).T. F. H. Meyer and Mr. Zabriskie, for respondent.
—Cases in which action may be prosecuted within this state against foreign corporations, are specified in section 1780 of the Code, and to those cases the jurisdiction of the courts is limited (Ervin v. Oregon R’y. & Nav. Co., 62 How. 490 ; see also Harriott v. N. J. R. R. Co., 8 Abb. 284 ; and McMahon v. Mutual Benefit Life Ins. Co., 8 Abb. 297 ). There are decisions which seem to hold that, under the wording of section 427 of the old Code, the question of jurisdiction as far as concerned actions in the supreme court was a personal one which might be waived, but that they have no application as the law stands at present will be apparent from a comparison of the language used in section 427 of the old Code, and that used in section 1780 of the present Code. In the latter the words “may be maintained only” are used instead of the words “may be brought,” in the former. The change is significant. In the line of decisions referred to, the words “ may be brought,” as used in section 427, received an interpretation which will not fit the words “may be maintained only,” used in section 1780. Section 1780 deprives the courts of the state of the power to hear and determine the cause of action alleged in this case, so far as the, non-resident plaintiffs are concerned,, and lack of jurisdiction of the cause of action cannot be cured or waived.The following opinion was rendered by the court below:
—All the plaintiffs are not residents, therefore they cannot maintain this action. The defendant by appearing and answering has not waived the objection that the court has not jurisdiction of the action (Harriott v. N. J. R. R. Co., 8 Abb. Pr. 284 ). The attachment is vacated with $10 costs.”
Upon a re-argument the following additional opinion was rendered:
“Truax, J.—If the plaintiff’s view of the meaning of
p. 237sections 266 and 1780 of the Code of Civil Procedure is the right one, this court would have jurisdiction of an action brought by a non-resident against a foreign corporation when the supreme court has not jurisdiction. I do not think that such was the intention of the legislature. Section 1780 provides that in certain cases only shall any of the courts of this state have jurisdiction over a foreign corporation in actions brought by a non-resident plaintiff, and there mentions the cases.
“The case is not one of the cases mentioned in that section, but the plaintiffs contend section 266 provides that the jurisdiction of a superior city court may be'.presumed, and that a want of- jurisdiction by reason of the non-existence of any of the jurisdictional facts specified in section 263 is a matter of defense, and is waived by the appearance of the defendant, unless it is pleaded in defense, and that the defendant not having pleaded that the plaintiffs are nonresidents, cannot raise the question of jurisdiction on a motion to vacate an attachment; such, however, is not the meaning of those sections. They mean that the plaintiff need not set forth in his complaint that the contract sued on was made, executed or delivered within the state, or that the cause of action arose within the state, or that a warrant of attachment has been actually levied within this city, or that the summons has been actually served within this city, but that in a case in which the supreme court has jurisdiction, if the non-existence of these facts is not set up in the answer, the court will presume that they do exist.
‘11 am therefore of the opinion that this court has no jurisdiction over a foreign coporation in an action brought by a non-resident against such corporation, and that the objection to the jurisdiction of the court may be taken at any time, although it has not been taken in the answer.
“The motion to vacate the attachment is granted, with $10 costs.”
The following decision was rendered at general term:
Per Curiam. —Order affirmed, with $10 costs, on opinion below.