By the Court,
Sutherland, J.
The plaintiff is a resident of Massachusetts. The defendants are a Connecticut corporation, running steamboats for carrying passengers and freight, between New York city and New London, in connection with a railroad or railroads from New London to Boston.
On Saturday, the 7th of May, 1864, the plaintiff being in New York took passage and a state room on the defendant’s boat, City of Boston, for New London, receiving a check for her trunk, containing valuable wearing apparrel and certain other articles, to New London. The boat arrived at New London between half past 12 and 1 o’clock, the next morning, the usual time. The plaintiff remained in her state room until between 8 and 9 o’clock, when upon leaving it, without presenting the check for her trunk or notifying any one that she intended leaving it, or making any inquiry [204]*204about it, or for it, she got into a wagon without it, and was driven to the residence of a friend, about three miles from Hew London.
The case does not leave room for a doubt that the plaintiff left the boat supposing that her trunk remained on board, and knowing that the boat was not to leave for Hew York, until 4 or 5 in the afternoon of the next day,, (Monday,) that she intentionally left without her trunk, intending to return from her friend’s the next day about 12 or 1 o’clock, present her check, get her trunk, and take the train for Boston.
Before the plaintiff left her state room on the Sunday morning the boat arrived at Hew London, her trunk had in fact been removed from the boat by the defendants’ employees to a baggage room, in the depot, on or near, the dock, which room had been rented and was used by the defendants for the purpose of putting and keeping unclaimed baggage3 or baggage which it was convenient for the defendants to have removed from the boats, before called for, where the trunk remained, under the control, and in charge, of one or more of the defendants’ employees, until it, with its contents, was destroyed by fire, with the depot, about 5 o’clock in the afternoon of that day, without negligence on the part of the defendants or any of their agents or employees.
The plaintiff discovered her loss when she returned to the' boat the next day, (Monday,) about 12 o’clock, to get her trunk and take the train for Boston.
A statute of Connecticut (proved by the plaintiff on the trial) provides : “ That no person shall do any secular business, work or labor, works of necessity and mercy excepted ; nor keep open any shop, warehouse, or .workhouse; nor expose to sale any goods, wares, or merchandise, or any other property ; nor engage in any sport, game, play, or recreation, on Lord’s day, between the rising of the sun and the setting of the same ; nor shall any traveler, drover, wagoner, or teamster, travel on said day, between said times, except from [205]*205necessity or charity; and every person so offending, shall pay a fine not exceeding four dollars, nor less than one dollar ; hut Haywards may perform all the duties of their office on the Lord’s day.”
This action was brought to recover the value of the trunk and contents.
I have stated the case stripped of all extraneous and immaterial facts and evidence.
Assuming for the present, that this court has jurisdiction, the question is, are the defendants liable. I think not.
The undertaking of the defendants as common carriers was to carry the plaintiff and her trunk to Hew London, and to deliver the trunk with its contents to her there, on presentation of her check for it, within a reasonable time, under the circumstances, after the arrival of the boat at Hew London.
The question is, whether the plaintiff discharged her duty in regard to the delivery of the trunk ; whether, by neglecting to present her check and claim her trunk, she had not made the defendants mere gratuitous bailees of the trunk at the time of the fire ? I think she had. (See Powell v. Myers, 26 Wend. 591; Cary v. Cleveland, R. R. Co., 29 Barb. 35; Roth v. Buffalo and State Line R. R. Co. 34 N. Y. Rep. 548.) If she had, then the defendants are not liable, for it is not even claimed by the plaintiff that the fire was caused by the negligence of the defendants, or of any of their agents or servants.
The question of liability is the same (independent of the act of congress referred to by the defendants’ counsel as to the applicability or pertinency of which it is not necessary to pass) as it would have been, if the trunk had never been removed to the baggage room of the defendants, in the depot, but had remained on the boat, and the boat and trunk had burned at 5 o’clock on the Sunday afternoon, without fault or negligence on the part of the defendants, their officers, agents or employees.
The removal of the trunk to the defendants’ baggage [206]*206room in the depot, before the plaintiff left her state room on the morning of the arrival, did not relieve the defendants from their undertaking and liability as a common carrier; and if the depot and trunk had been burned before the plaintiff left the boat for her friend’s residence, no doubt the defendants would have been liable. The question is as to liability for baggage not freight—the baggage room in the depot was not a warehouse, or wareroom—and there is no question of notice, or of the necessity of notice, on the part of‘the defendants, in the case. The plaintiff did not remain in her state room to an unreasonable hour in the morning, and she could not have been expected to present her check for her trunk before she left her state room.
If' the plaintiff had presented her check and called for her trunk before she took conveyance for her friend’s residence, the presumption is, that she would have got it, though it had been put in the baggage room in the depot, but she did not want to be troubled with it, and intentionally abandoned it to the" care of the defendants, without any explanation, special arrangement, or notice, until it was destroyed by fire, about seventeen hours after her arrival at New London.
Travelers by railroads and steamboats, usually in person or by express agents, present their checks, and receive their baggage, on their arrival at their place of destination, or as soon thereafter as the checks can reasonably, under the circumstances, be presented and the baggage delivered ; but in this case, it is undisputed that the plaintiff left her trunk in the keeping and charge of the defendants, beyond the usual time, and up to the time of the fire, for her own convenience, and that she intended to have so left it for nearly a day longer. In fact the plaintiff did not come for her trunk until 12 or 1 o’clock of the day after the fire.
I think, under the cases above cited, we should hold the defendants, on the undisputed circumstances of this case, not to be liable.
Clearly we should so hold, independent of the Connecticut [207]*207statute. • Does that statute furnish any excuse for the plaintiff’s leaving her trunk in charge of the defendants, until it was destroyed by fire, as she did ? I think not.
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By the Court,
Sutherland, J.
The plaintiff is a resident of Massachusetts. The defendants are a Connecticut corporation, running steamboats for carrying passengers and freight, between New York city and New London, in connection with a railroad or railroads from New London to Boston.
On Saturday, the 7th of May, 1864, the plaintiff being in New York took passage and a state room on the defendant’s boat, City of Boston, for New London, receiving a check for her trunk, containing valuable wearing apparrel and certain other articles, to New London. The boat arrived at New London between half past 12 and 1 o’clock, the next morning, the usual time. The plaintiff remained in her state room until between 8 and 9 o’clock, when upon leaving it, without presenting the check for her trunk or notifying any one that she intended leaving it, or making any inquiry [204]*204about it, or for it, she got into a wagon without it, and was driven to the residence of a friend, about three miles from Hew London.
The case does not leave room for a doubt that the plaintiff left the boat supposing that her trunk remained on board, and knowing that the boat was not to leave for Hew York, until 4 or 5 in the afternoon of the next day,, (Monday,) that she intentionally left without her trunk, intending to return from her friend’s the next day about 12 or 1 o’clock, present her check, get her trunk, and take the train for Boston.
Before the plaintiff left her state room on the Sunday morning the boat arrived at Hew London, her trunk had in fact been removed from the boat by the defendants’ employees to a baggage room, in the depot, on or near, the dock, which room had been rented and was used by the defendants for the purpose of putting and keeping unclaimed baggage3 or baggage which it was convenient for the defendants to have removed from the boats, before called for, where the trunk remained, under the control, and in charge, of one or more of the defendants’ employees, until it, with its contents, was destroyed by fire, with the depot, about 5 o’clock in the afternoon of that day, without negligence on the part of the defendants or any of their agents or employees.
The plaintiff discovered her loss when she returned to the' boat the next day, (Monday,) about 12 o’clock, to get her trunk and take the train for Boston.
A statute of Connecticut (proved by the plaintiff on the trial) provides : “ That no person shall do any secular business, work or labor, works of necessity and mercy excepted ; nor keep open any shop, warehouse, or .workhouse; nor expose to sale any goods, wares, or merchandise, or any other property ; nor engage in any sport, game, play, or recreation, on Lord’s day, between the rising of the sun and the setting of the same ; nor shall any traveler, drover, wagoner, or teamster, travel on said day, between said times, except from [205]*205necessity or charity; and every person so offending, shall pay a fine not exceeding four dollars, nor less than one dollar ; hut Haywards may perform all the duties of their office on the Lord’s day.”
This action was brought to recover the value of the trunk and contents.
I have stated the case stripped of all extraneous and immaterial facts and evidence.
Assuming for the present, that this court has jurisdiction, the question is, are the defendants liable. I think not.
The undertaking of the defendants as common carriers was to carry the plaintiff and her trunk to Hew London, and to deliver the trunk with its contents to her there, on presentation of her check for it, within a reasonable time, under the circumstances, after the arrival of the boat at Hew London.
The question is, whether the plaintiff discharged her duty in regard to the delivery of the trunk ; whether, by neglecting to present her check and claim her trunk, she had not made the defendants mere gratuitous bailees of the trunk at the time of the fire ? I think she had. (See Powell v. Myers, 26 Wend. 591; Cary v. Cleveland, R. R. Co., 29 Barb. 35; Roth v. Buffalo and State Line R. R. Co. 34 N. Y. Rep. 548.) If she had, then the defendants are not liable, for it is not even claimed by the plaintiff that the fire was caused by the negligence of the defendants, or of any of their agents or servants.
The question of liability is the same (independent of the act of congress referred to by the defendants’ counsel as to the applicability or pertinency of which it is not necessary to pass) as it would have been, if the trunk had never been removed to the baggage room of the defendants, in the depot, but had remained on the boat, and the boat and trunk had burned at 5 o’clock on the Sunday afternoon, without fault or negligence on the part of the defendants, their officers, agents or employees.
The removal of the trunk to the defendants’ baggage [206]*206room in the depot, before the plaintiff left her state room on the morning of the arrival, did not relieve the defendants from their undertaking and liability as a common carrier; and if the depot and trunk had been burned before the plaintiff left the boat for her friend’s residence, no doubt the defendants would have been liable. The question is as to liability for baggage not freight—the baggage room in the depot was not a warehouse, or wareroom—and there is no question of notice, or of the necessity of notice, on the part of‘the defendants, in the case. The plaintiff did not remain in her state room to an unreasonable hour in the morning, and she could not have been expected to present her check for her trunk before she left her state room.
If' the plaintiff had presented her check and called for her trunk before she took conveyance for her friend’s residence, the presumption is, that she would have got it, though it had been put in the baggage room in the depot, but she did not want to be troubled with it, and intentionally abandoned it to the" care of the defendants, without any explanation, special arrangement, or notice, until it was destroyed by fire, about seventeen hours after her arrival at New London.
Travelers by railroads and steamboats, usually in person or by express agents, present their checks, and receive their baggage, on their arrival at their place of destination, or as soon thereafter as the checks can reasonably, under the circumstances, be presented and the baggage delivered ; but in this case, it is undisputed that the plaintiff left her trunk in the keeping and charge of the defendants, beyond the usual time, and up to the time of the fire, for her own convenience, and that she intended to have so left it for nearly a day longer. In fact the plaintiff did not come for her trunk until 12 or 1 o’clock of the day after the fire.
I think, under the cases above cited, we should hold the defendants, on the undisputed circumstances of this case, not to be liable.
Clearly we should so hold, independent of the Connecticut [207]*207statute. • Does that statute furnish any excuse for the plaintiff’s leaving her trunk in charge of the defendants, until it was destroyed by fire, as she did ? I think not. I think if a Connecticut court of this day, would hold that the work or labor of taking, the trunk out of the baggage room, and delivering it to the plaintiff on the Sunday morning, would have been work or labor within the meaning of the statute, that the same court would further hold that it would have been under the circumstances a work or labor of necessity, and fairly within the first exception in the statute. And I think the same court would hold that though the plaintiff, in traveling from the boat to her friend’s residence, was or might have been a traveler within the meaning of the statute, yet that her traveling on that occasion was, or might fairly be considered to have been, from necessity, and within the other exception in the statute; especially, as the same court would probably presume, that the plaiñtiff with her friend or some of his family, attended some orthodox church, more than once on that Sunday.
This must have been the construction which the plaintiff herself put upon the Connecticut statute — for she must be presumed to have had knowledge of it; and she is entitled to the presumption that she did not intend to commit either a sin or a crime, by going from the boat to her friend’s house on Sunday morning ; and it would probably be doing injustice to her intellect, to suppose that she thought that the circumstance of omitting to take her trunk with her,- absolved or protected her from the penalty of the Connecticut law.
In my opinion this statute does not vary or affect the question of liability in this case.. I think the question of liability would have been the same if the boat had arrived at New London on Monday or Tuesday morning, at the same hour.
Certainly, whatever may have been the plaintiff’s conscientious scruples, or construction of the Connecticut statute, that statute was no excuse for her leaving her trunk as she [208]*208did, without any special arrangment for its keeping, until her return on Monday, and without even notice to the captain, baggage master, or other employee of the defendants. If such notice had been given, and the trunk had been retained without objection, the question of liability would have been a different one.
But has this court jurisdiction of the cause of action P
The question of jurisdiction is only as to jurisdiction of the cause or subject matter of the action. The question of jurisdiction is the same as if the defendants voluntarily offered and submitted to the jurisdiction of this court up to the time of the appeal. There is no question as to the service or due service of a summons, under sections 134 or 135 of the Code
The question of jurisdiction on this appeal is limited to the inquiry, whether this court has jurisdiction of the case or cause of action, assuming that the defendants were either properly served with summons or process, or voluntarily appeared.
No doubt the defendants could raise this question of jurisdiction for the first time on this appeal. (Dudley v. Mayhew, 3 Comst. 9. Burckle v. Eckhart, Id. 137.)
And it is proper that the question of jurisdiction should be decided, though my associates should concur in my conclusion on the question of liability ; for if the court has not jurisdiction of the cause of action, a new trial should not be ordered, but the complaint should be dismissed, probably without costs to either party.
A section of the Revised Statutes, (2 B. S. § 15, 459,) was amended by act of March 15, 1849, (Laws of 1849, p. 142,) so as to allow actions to. be brought in this court, and in the Superior Court of the city of New York, and in the court of common pleas in and for the city and county of New York, against a foreign corporation, for the recovery of debt, or damages, “ arising upon contract made, executed, [209]*209or delivered, within this state, or upon any cause of action arising therein.”
Section 427 of the Code, is one of the sections which were added to the Code in its revision, by act of April 11, 1849. This section provides, that an action against a foreign corporation, may be brought in the same courts, “ in the following cases :
1. By a resident of this state for any cause of action.
2. By a plaintiff not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within this state.”
The plaintiff is a non-resident, and the defendants are a foreign corporation, and it is clear that her cause or right of' action, did not arise in this state, but that it arose in Connecticut ; and I think it clear that the words or phrase, •£ subject of the action,” as used in section 427 of the Code, are not applicable to her case. I do not know what the subject of her action is, unless it is the same thing as her cguse of action.
But, her action must be regarded, I think, as an action on contract; and, so regarded, it is an action for damages arising upon a contract made within this state, and is within the provision of the act of March 15, 1849, giving this court jurisdiction in such a case ; and this court has jurisdiction of the plaintiff’s cause of action, if that provision of the act of March 15, is in force ; and it is in force, unless the adoption of sections 427, 468 and 471, in the revision of the Code in 1849, abolished or repealed it.
The Code of 1848 was passed April 12, but it took effect, excepting four or five sections, July 1, 1848. The last section (473) of the revised or amended Code of 1849, that is, the last section of the act of April 11, 1849, revising or amending the Code of 1848, declared that the act should take effect on the 1st July, 1848, except that sections 22, 23, 24 and 25, should take effect immediately. This would [210]*210seem to show, that the revised Code of 1849, was intended'' to he substituted for the Code of 1848, as of the time the Gode of 1848 took effect, that is, July 1, 1848, and if so, it is difficult to see how it can be held that sections 427, 468 and 471 of the revised Code of 1849, or either of them, repeal, or can in any way affect, the act of March 15, 1849.
But, if the revised Code of 1849, took effect from its passage, or twenty days thereafter, as Judge Barculo seems to have thought, in Gamble v. Beattie, (4 How. Pr. 41,) I am of the opinion, that the provision of the act of March 15, 1849, giving this court jurisdiction of,the plaintiff’s cause of action is not inconsistent with section 427 of the revised Code, and therefore not impliedly abolished by it, or- expressly by section 268 or 271 of the same Code. Upon the theory that these sections took effect from the passage of the revised Code, or twenty days thereafter, I am of the opinion that section 471 should be regarded, not as limiting the jurisdiction of the courts mentioned in it to the cases mentioned therein, but as extending such jurisdiction to certain cases other than those mentioned in the act of March 15,' 1849, leaving this act, so far as it confers jurisdiction upon this court, in full force and effect.
As to the Superior Court of the city of Hew York, and the court of common pleas in and for the city and county of Hew York, section 427 cannot be regarded as a rule of limitation of jurisdiction of actions against foreign corporations to the cases mentioned in it, for section 33 of the same revised Code gives them precisely the same jurisdiction, as to foreign corporations, that had been given them by the act of March 15, 1849. Section 427 must be presumed to have been adopted in view of section 33, and cannot be held to be inconsistent with it; and as to the Supreme Court, I think section 427 should be presumed to have been adopted in view of the act of March 15, 1849, and ought not to be regarded as inconsistent with it.
To hold that the legislature intended by sections 427 and [211]*21133 to confirm in the superior and common pleas- courts the jurisdiction given by the act of March 15, 1849, and by sections" 427, 468 and 471 to take away from this court the jurisdiction given by the act of March 15, would be charging the legislature with an extraordinary, unreasonable and inconsistent freak of legislation.
[New York General Term,
November 4, 1867.
In Whitehead v. The Buffalo and Lake Huron R. R. Co., (18 How. Pr. 232,) and in Campbell v. The Proprietors of the• Champlain and St. Lawrence R. R. (Id. 416,) it would appear to have been assumed that the act of March 15,1849, •remained in force.
For a more full history of the crude-legislation bearing on this question of jurisdiction, see Judge Hand's opinion in President, &c. of Bank of Commerce v. The Rutland and Washington R. R. Co., (10 How. Pr. 4, 5,) and the cases in 18 id. (supra.)
The judgment should be reversed, and a new trial ordered, with costs to abide the event of the action.
Leonard, Clerke and Sutherland, Justices.]