Johnson v. Adams Tobacco Co.

New York Supreme Court

Johnson v. Adams Tobacco Co.

21 N.Y. Sup. Ct. 89

DecidedApril 15, 1878

StatusPublished

This text of 21 N.Y. Sup. Ct. 89 (Johnson v. Adams Tobacco Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Adams Tobacco Co., 21 N.Y. Sup. Ct. 89 (N.Y. Super. Ct. 1878).

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Opinion

Davis, P. J.:

This motion was rightly disposed of below for two reasons: First, the cause of action arose in this State, although the contract was made in Canada, yet it was to be performed by its terms in Canada or in the United States. It was, in fact, mostly performed by the plaintiff in the city-of Now York. By the resolu[90]*90tion to terminate the employment of the plaintiff, it is provided that the engagement of the plaintiff with the defendants should terminate upon the receipt of a copy of the resolution by the latter. A copy of the resolution was received by the plaintiff at the city of New York. By the terms of the resolution, it thereupon operated as his discharge and consequently as a breach of the contract at this city. The cause of action arose upon such breach, and therefore may be properly said to have arisen in the city of New York.

But we think, also, the question of jurisdiction should not be permitted to be tried upon affidavits in the manner attempted in this case. Under the provisions of the Code, if a want of jurisdiction appears upon the face of the complaint, it may be taken advantage of by demurrer, if it fails so to appear, by answer; (Code of Civil Procedure, §§ 488, 498.) And we think the proper remedy in this case, if the appellants desire to raise the question, is to do so by answer.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady. J., concurred. Present- — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Davis, P. J.:

This motion was rightly disposed of below for two reasons: First, the cause of action arose in this State, although the contract was made in Canada, yet it was to be performed by its terms in Canada or in the United States. It was, in fact, mostly performed by the plaintiff in the city-of Now York. By the resolu[90]*90tion to terminate the employment of the plaintiff, it is provided that the engagement of the plaintiff with the defendants should terminate upon the receipt of a copy of the resolution by the latter. A copy of the resolution was received by the plaintiff at the city of New York. By the terms of the resolution, it thereupon operated as his discharge and consequently as a breach of the contract at this city. The cause of action arose upon such breach, and therefore may be properly said to have arisen in the city of New York.

But we think, also, the question of jurisdiction should not be permitted to be tried upon affidavits in the manner attempted in this case. Under the provisions of the Code, if a want of jurisdiction appears upon the face of the complaint, it may be taken advantage of by demurrer, if it fails so to appear, by answer; (Code of Civil Procedure, §§ 488, 498.) And we think the proper remedy in this case, if the appellants desire to raise the question, is to do so by answer.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady. J., concurred. Present- — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

21 N.Y. Sup. Ct. 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-adams-tobacco-co-nysupct-1878.