Mallory v. Virginia Hot Springs Co.

157 A.D. 253, 141 N.Y.S. 961, 1913 N.Y. App. Div. LEXIS 5900

Opinions

Stapleton, J.:

The appeal is from an order denying a motion to set aside the service of the summons and for a dismissal of the action.

The following facts must be assumed in the determination of this motion: The testator of the plaintiffs was a resident of this State at the time of her death. Her death was caused in the State of Virginia by the neglect of a corporation created by and doing business under the laws of that State. There is in Virginia a statute (Virginia Code, §§ 2902-2906) similar in its provisions to the one in this State (Code Civ. Proc. §§ 1902-1905), which gives to an executor of a decedent, whose death was thus caused, an action to recover damages for the benefit of the husband or next of kin of the decedent as compensation for the pecuniary injuries resulting to him or them. The time within which the action may be brought under the Virginia statute is twelve months. Letters testamentary were issued to the three plaintiffs upon the probate of the decedent’s will. Two of the plaintiffs were, at the time of the commencement of the action, residents of the State of Hew York, and one was a resident of the State of Connecticut.

The following propositions must be accepted: There was no pleading served, and the application is upon affidavits. The jurisdiction of the person of the defendant was acquired by service of the summons within the State upon its president. (Grant v. Cananea Consolidated Copper Co., 189 N. Y. 241; Sadler v. Boston & Bolivia Rubber Co., 140 App. Div. 367; affd., 202 N. Y. 547.) If all the plaintiffs were residents of this State the action would unquestionably be maintainable. (Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10; Johnson v. Phoenix Bridge Co., 197 id. 316.)

The only assertion of the defendant which requires discussion is that because one of the three executors is a non-resident of this State the action may not be maintained against it, a foreign corporation, as the action is not one enumerated in subdivisions 1, 2 and 3 of section 1780 of the Code of Civil Procedure, which section reads:

“An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only:

“1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to property situated within the State, at the time of the making thereof.

“ 2. Where it is brought to recover real property situated within the State, or a chattel, which is replevied within the State.

“3. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State. ”

Footnotes

•

*

We are compelled to acknowledge that in a case brought in the Superior Court of the city of Hew York, where it appeared the cause of action arose in a foreign country, the intestate was a non-resident of this State at the time of his death, his sole administrator, appointed by the courts of this State, was a nonresident at the time of the commencement of the action, and the defendant was a foreign corporation, it has been held that a motion made to vacate the summons and dismiss the complaint should have been granted on the ground that the court did not have jurisdiction of the action, i. e., of the subject-matter thereof. (Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315.) Ho question seems to have been raised as to the propriety of the motion.

We do not believe the scope of that decision should be extended to exclude the representatives of a decedent who was a resident of this State at the time of her death, two of said representatives being residents here at the time of the commencement of the action, from pursuing a remedy for the benefit of her husband or next of kin.

The obvious object of this motion is to destroy plaintiffs’ cause of action, through the operation of the short limitation in the Virginia statute. We should not be hospitable to that project.

There is no reason why the jurisdiction should not attach to the subject-matter of the action because of the residence in the State of some of the executors, nor why the non-residence of one should be the determining factor in the decision of the question.

A contemplation of the plaintiffs’ situation will test the justice of the defendant’s position. The executors had a duty to bring an action. (Code Civ. Proc. §§ 1902-1905; Wooden v. W. N. Y. & P. R. R. Co., supra.) They could not go to Virginia to sue because the common-law rule, of which we must take cognizance, is that they could not maintain an action in a jurisdiction in which they were foreign executors. (Johnson v. Wallis, 112 N. Y. 230, 232; Hopper v. Hopper, 125 id. 400.) They were required to sue jointly (Bodle v. Hulse, 5 Wend. 313), although had they been sued they would be by statute considered as one person. (Code Civ. Proc. § 1811.)

Under our statute law the non-resident plaintiff may, before the trial, have his letters testamentary revoked and be discharged as executor upon his application (Code Civ. Proc. §§ 2689, 2690) and the courts would have the power to strike out his name as a party plaintiff ( Gittleman v. Feltman, 191 N. Y. 205), and thus save the cause of action should this be necessary to establish jurisdiction of the subject-matter. In those respects the case is clearly distinguishable from Brooks v. Mexican Construction Co. (49 N. Y. Super. Ct. 234; 50 id. 281).

To sustain the order from which the appeal is taken it is sufficient to decide that in the light of the duties, obligations and rights of these parties and the powers of this court, the question as to the jurisdiction of the court over the subject-matter does not arise, and should not be settled upon a motion to set aside the service of the summons, and that the proper mode of raising that question is by demurrer or by answer. (Atlantic & Pacific Telegraph Co. v. B. & O. R. R. Co., 87 N. Y. 355; Ubart v. Baltimore & Ohio R. R. Co., 117 App. Div. 831; Manning, Maxwell & Moore, Inc., v. Canadian Locomotive Co., Ltd., 120 id. 735.) We prefer, however, to determine that this court has jurisdiction of this action because of the facts that at the time of her death the decedent was a resident of this State, and that at the time of the commencement of this action two of the plaintiffs were also residents hereof. It is inconceivable that a cause of action which would otherwise accrue to the representatives of a testatrix, a resident of this State at the time of her death, could be destroyed by the simple circumstance that one of the joint executors nominated by her in her will was a non-resident.

We think there should be an affirmance of the order, with ten dollars costs and disbursements.

Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., read for reversal.

Since amd. by Laws of 1913, chap. 60; in effect September 1, 1913.— [Rep.