By the Court, E. Darwin Smith, J.
The defendant is a corporation, created by the laws of this state, and must be deemed a resident of this state. (13 Peters, 519 ; and 14 id. 129. 2 Howard’s U. S. Rep. 499.) This court must, therefore, have jurisdiction of the person of the defendant, in the same manner, and to the same effect, as over natural persons resident within this state. But jurisdiction of the person of the defendants does not include jurisdiction of the subject matter of the action. And appearance waives nothing, for section 144 of the code expressly gives the right to demur to the jurisdiction of the court in respect to the subject matter of the action, as well as of the person. And this is the question particularly raised upon this demurrer. The cause of action in the complaint, so far as it depends upon the killing of the intestate, did not arise within this state, but arose on the rail road of the defendants, between Aspinwall and the city'of Panama, in the Republic of Hew Grenada, where it is alleged the husband of the plaintiff was killed, by the negligence and unskillful conduct of the agents and servants of the defendants. Clearly, no action at common law would lie for the cause stated in this complaint, even if the death had occurred in this state. (Quin v. Moore, 15 N. Y. Rep. 436. 9 Cranch, 480. Green v. Hudson River R. R. Co., 28 Barb. 13. 21 id. 245.) The right, therefore, to maintain this action, depends upon the question whether the acts of the legislature of this state, of 1847 and 1849, (Sess. Laws of 1847, p. 575 ; Id. of 1849, p. 388,) giving a right of action to the next of kin of persons killed by “ the wrongful act, -neglect or default of another,” applies to the case. If the defendants were a foreign corporation the case would be precisely identical with the cases of Vanderventer v. The New York and New Haven R. R. Co., (27 Barb. 244,) and Beach v. The Bay State Company, (id. 248,) in which Justices Peabody [107]*107and Gierke, at special term, came to opposite conclusions. The general proposition is undoubted and indisputable, that the statutes of one state have no force, ex proprio vigore, beyond the territorial limits of the state. This is too obvious for discussion. But the courts in all civilized states do, more or less, take cognizance of causes of action arising in other states and countries, in respect to persons within their jurisdiction. This is universally done in all civilized countries, and especially where the common law prevails in respect to personal rights of action, so far as they are transitory. That the acts of 1847 and 1849 cannot affect foreign corporations, or,,citizens or residents of other states, and give rights of action against them enforceable in our courts, for acts done in other states and countries, is, I think, quite conclusively shown in the opinion of Justice Peabody, in the case of Vanderventer v. The New York and New Haven B. B. Co., (supra,) in which I fully concur. But the question remains, may not these acts apply, as between citizens of this state, where the neglect or wrongful act causing the death took place in another state or country. The question, in this aspect of it, is precisely the same as if one citizen of this state, by some neglect, or default, or wrongful act, killed another citizen, in a foreign state or country. Whatever civil right of action by the law of the place attached to, or was given by, or arose from the act of killing in such case, would doubtless be transitory and follow the person, and might be enforced in this state. But if the law of the place gave no civil right of action for such cause, none of course would exist any where else at the timeand if the party causing the death never returned to this state, he could not, obviously, in any way be amenable to its law, or be subject to any liability under or by virtue of the same. Would his return to this state, ipso facto, subject him to an action under our statute ? I think not. In Beach v. The Bay State Company, (supra,) Judge Gierke says : “ It cannot be doubted that any one state or nation has the right to give to its citizens redress for personal inju[108]*108ries committed without as well as within its territorial limits. This is undoubtedly so, within the scope of civil actions for the enforcement of all those rights of action which follow the person. But is it true beyond this limit ? Can one of our state governments, by its legislation, follow the citizen out of its territory, so as to confer jurisdiction on our courts to take cognizance of his acts, and give redress to or against him, for extra-territorial wrongs ?” The learned judge also says : “ I can see no reason to infer that the legislature intended to confine the operation of these acts, (the acts of 1847 and 1849,) in their remedial features, to injuries committed within the territorial limits of this state.” But, on the other hand, is there any gound to infer that the legislature intended to extend the operation of these acts beyond the limits of this state, or designed to apply them to persons residing in other states, artificial or natural, or citizens of this state residing temporarily abroad, so as to give a remedy against them, for injuries committed out of the state ?' If the state can do so, I can see no evidence of any intent on the part of the legislature to give these acts such an extra territorial force. The purpose of the legislature, in such cases, should be very explicitly declared, if such were the intent of an act. But if these acts follow the citizen out of the state, so as to give a right of action enforceable against any pprson or corporation of which the courts can get jurisdiction, for wrongs done out of the state, then the acts of any other state or legislature may, upon the same principle, operate throughout the union, or throughout the civilized world, as valid laws, so far as to give a right of action whenever jurisdiction of the person could be obtained. An act of the legislature of this state would thus practically become universal public law. I think this cannot be the intent or force of these acts. They are purely local, and limited to the sovereignty and domain of the state, and only aj>ply when the subject matter of the action arose within this state.
But as the defendants are a corporation organized under a [109]*109special charter of this state, and therein authorized to construct and maintain a rail road across the Isthmus of Panama, I have no doubt the legislature might expressly have subjected them, in the use of .their said rail road, and in the exercise of their corporate franchises, to the operation of these acts, as part of the condition of their being. In looking into the charter I find, however, no provision on the subject.
The only question which remains to be considered is, how far the fact that the contract was made, and the fare paid, in this state, for the transportation of the plaintiff's intestate upon the defendants' road, affects the right of action here, notwithstanding the killing was in New Grenada.
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By the Court, E. Darwin Smith, J.
The defendant is a corporation, created by the laws of this state, and must be deemed a resident of this state. (13 Peters, 519 ; and 14 id. 129. 2 Howard’s U. S. Rep. 499.) This court must, therefore, have jurisdiction of the person of the defendant, in the same manner, and to the same effect, as over natural persons resident within this state. But jurisdiction of the person of the defendants does not include jurisdiction of the subject matter of the action. And appearance waives nothing, for section 144 of the code expressly gives the right to demur to the jurisdiction of the court in respect to the subject matter of the action, as well as of the person. And this is the question particularly raised upon this demurrer. The cause of action in the complaint, so far as it depends upon the killing of the intestate, did not arise within this state, but arose on the rail road of the defendants, between Aspinwall and the city'of Panama, in the Republic of Hew Grenada, where it is alleged the husband of the plaintiff was killed, by the negligence and unskillful conduct of the agents and servants of the defendants. Clearly, no action at common law would lie for the cause stated in this complaint, even if the death had occurred in this state. (Quin v. Moore, 15 N. Y. Rep. 436. 9 Cranch, 480. Green v. Hudson River R. R. Co., 28 Barb. 13. 21 id. 245.) The right, therefore, to maintain this action, depends upon the question whether the acts of the legislature of this state, of 1847 and 1849, (Sess. Laws of 1847, p. 575 ; Id. of 1849, p. 388,) giving a right of action to the next of kin of persons killed by “ the wrongful act, -neglect or default of another,” applies to the case. If the defendants were a foreign corporation the case would be precisely identical with the cases of Vanderventer v. The New York and New Haven R. R. Co., (27 Barb. 244,) and Beach v. The Bay State Company, (id. 248,) in which Justices Peabody [107]*107and Gierke, at special term, came to opposite conclusions. The general proposition is undoubted and indisputable, that the statutes of one state have no force, ex proprio vigore, beyond the territorial limits of the state. This is too obvious for discussion. But the courts in all civilized states do, more or less, take cognizance of causes of action arising in other states and countries, in respect to persons within their jurisdiction. This is universally done in all civilized countries, and especially where the common law prevails in respect to personal rights of action, so far as they are transitory. That the acts of 1847 and 1849 cannot affect foreign corporations, or,,citizens or residents of other states, and give rights of action against them enforceable in our courts, for acts done in other states and countries, is, I think, quite conclusively shown in the opinion of Justice Peabody, in the case of Vanderventer v. The New York and New Haven B. B. Co., (supra,) in which I fully concur. But the question remains, may not these acts apply, as between citizens of this state, where the neglect or wrongful act causing the death took place in another state or country. The question, in this aspect of it, is precisely the same as if one citizen of this state, by some neglect, or default, or wrongful act, killed another citizen, in a foreign state or country. Whatever civil right of action by the law of the place attached to, or was given by, or arose from the act of killing in such case, would doubtless be transitory and follow the person, and might be enforced in this state. But if the law of the place gave no civil right of action for such cause, none of course would exist any where else at the timeand if the party causing the death never returned to this state, he could not, obviously, in any way be amenable to its law, or be subject to any liability under or by virtue of the same. Would his return to this state, ipso facto, subject him to an action under our statute ? I think not. In Beach v. The Bay State Company, (supra,) Judge Gierke says : “ It cannot be doubted that any one state or nation has the right to give to its citizens redress for personal inju[108]*108ries committed without as well as within its territorial limits. This is undoubtedly so, within the scope of civil actions for the enforcement of all those rights of action which follow the person. But is it true beyond this limit ? Can one of our state governments, by its legislation, follow the citizen out of its territory, so as to confer jurisdiction on our courts to take cognizance of his acts, and give redress to or against him, for extra-territorial wrongs ?” The learned judge also says : “ I can see no reason to infer that the legislature intended to confine the operation of these acts, (the acts of 1847 and 1849,) in their remedial features, to injuries committed within the territorial limits of this state.” But, on the other hand, is there any gound to infer that the legislature intended to extend the operation of these acts beyond the limits of this state, or designed to apply them to persons residing in other states, artificial or natural, or citizens of this state residing temporarily abroad, so as to give a remedy against them, for injuries committed out of the state ?' If the state can do so, I can see no evidence of any intent on the part of the legislature to give these acts such an extra territorial force. The purpose of the legislature, in such cases, should be very explicitly declared, if such were the intent of an act. But if these acts follow the citizen out of the state, so as to give a right of action enforceable against any pprson or corporation of which the courts can get jurisdiction, for wrongs done out of the state, then the acts of any other state or legislature may, upon the same principle, operate throughout the union, or throughout the civilized world, as valid laws, so far as to give a right of action whenever jurisdiction of the person could be obtained. An act of the legislature of this state would thus practically become universal public law. I think this cannot be the intent or force of these acts. They are purely local, and limited to the sovereignty and domain of the state, and only aj>ply when the subject matter of the action arose within this state.
But as the defendants are a corporation organized under a [109]*109special charter of this state, and therein authorized to construct and maintain a rail road across the Isthmus of Panama, I have no doubt the legislature might expressly have subjected them, in the use of .their said rail road, and in the exercise of their corporate franchises, to the operation of these acts, as part of the condition of their being. In looking into the charter I find, however, no provision on the subject.
The only question which remains to be considered is, how far the fact that the contract was made, and the fare paid, in this state, for the transportation of the plaintiff's intestate upon the defendants' road, affects the right of action here, notwithstanding the killing was in New Grenada. The complaint states “that on or about the 24th day of April, 1856, at the city of New York, for a reasonable compensation paid to the defendants by the said Bartholomew Crowley, (the plaintiff's intestate,) the defendants agreed to convey the said Bartholomew over their said rail road from Aspinwall to Pa- • nama, when he, the said Bartholomew, should thereafter arrive at Aspinwall; and that the defendants received him on their said road on his arrival there, and that the servants and agents of the defendants so negligently and unskillfully conducted themselves, in the management of the said rail road, that through such negligence the said Bartholomew was killed, while a passenger in.one of their oars.” Here was an express agreement made in this state safely to transport the plaintiff's intestate over the defendants’ rail road as a passenger, which, if Crowley, from the negligence of the defendants’ agents or servants, had sustained any injury on the said rail road, that he had survived, would unquestionably have entitled him to maintain his action therefor, in this state. If the cause of action set out in this complaint, therefore, could be considered' as arising upon this contract, and surviving by force of the statute, in behalf of the plaintiff „as the representative of the deceased, then most certainly the action could be maintained in this state. But such is not this action. It is not upon the contract. It is founded upon a tort. No right of action [110]*110for injuries to the person of Crowley can survive ; for “ actio personalis moritur cum persona.” The cause of action under the acts of 1847 and 1849 is a new and original one, given by and depending wholly upon the statute. Such was the view of these statutes taken by Judge Hogeboom in the case of Yertore, adm’x, &c. v. Wiswall, (16 Howard, 8,) which, being a general term decision, is authority upon this point. And the same view was taken by the court of queen’s bench, of the English statute of 9 and 10 Victoria, 93, from which statute, I presume, ours was copied, in Blake v. Midland Railway Co., (10 Eng. Law and Equity, 442 ;) and by Judge Hoffman in Safford v. Drew, (3 Duer, 638.)
[Monroe General Term,
September 5, 1859.
I think, therefore, that this court has no jurisdiction of the cause of action set out in the plaintiff’s complaint, and that the judgment of the special term should be reversed, and judgment given for the defendant, upon the demurrer.
Judgment reversed.
T. R. Strong, Johnson, Welles and Smith, Justices.]