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Nor is there any

the complaint to constitute a cause of action. claim that there is a defect of parties defendant. Upon these two points the demurrer admits that the complaint is sufficient, and that the plaintiff would be entitled to recover if the objections stated by the defendants in the demurrer are not well founded.

The objection that the court has no jurisdiction of the persons of the defendants does not mean that a proper service of the summons has not been made upon them; for such defect, if it exists, can only be taken advantage of on motion. Nones v. Hope Mutual Insurance Co. 8 Barb. 541. That ground of demurrer raises only the question whether the defendants are such persons as can be subjected to the process and jurisdiction of the court. Ogdensburgh & C. R. Co. v. Vermont & C. R. Co. 16 Abb. Prac. (N. S.) 249.

The defendants here are not sought to be subjected to the process of the court because of their status as foreign executors, but as trustees under the last will of Wilkinson. As such, they

JURISDICTION OF SUBJECT-MATTER,-continued.

Langdon v. N. Y. & Lake Erie R. Co., 58 Hun, 122; 33 St. Rep. 507; 11 Supp. 514.

A court having jurisdiction of the person of a lunatic has power to order his removal to a place outside the territorial limits of the state.

Matter of Colah (Parsee Merchant) 11 Abb. Pr. N. S. 209; S. C. 3 Daly, 329.

Consent cannot confer jurisdiction of subject-matter over which the tribunal has none by law.

Dudley v. Mahew, 3 N. Y. 9.

Beach v. Nixon, 9 N. Y. 35.

Jones v. Jones, 108 N. Y. 415; 13 St. Rep. 828; 28 W. Dig. 331.

Pease v. Delaware, L. & W. R. Co. 10 Daly, 459.

Perry v. Erie Transfer Co. 4 Misc. 598; 53 St. Rep. 136; 23 Supp. 878. Matter of Tuthill, 36 App. Div. 492; 89 St. Rep. 657; 55 Supp. 657.

Objection to the jurisdiction of the court is not waived by failure to raise it by answer or demurrer.

Code of Civil Procedure, § 499.

Lack of jurisdiction of the subject matter is not waived by an appearance. McCarty v. Parker, 26 Abb. N. C. 236; 14 Supp. 128.

Appellate Division.

became invested with the title to this real estate by virtue of the will alone, and not because of the decree of any court. Newton v. Bronson, 13 N. Y. 587-593; Conklin v. Egerton's Adm'r, 21 Wend. 430-436. As trustees under the will, taking title to the estate by virtue of the will, they stand in precisely the same situation as any other grantee of Wilkinson; and it hardly needs the citation of authorities to show that, if the plaintiff had a cause of action, either at law or equity, against a grantee of Wilkinson, arising out of the possession of this land, he could assert it in the courts of this state, if the defendants were found within the jurisdiction. Cleveland v. Burrill, 25 Barb. 522-532; Smith v. Crocker, 14 App. Div. 245; 77 St. Rep. 427; 43 N. Y. Supp. 427; Furbush v. Nye, 17 App. Div. 325; 79 St. Rep. 214; 45 N. Y. Supp. 214; Same v. Clarkson, 17 App. Div. 327; 79 St. Rep. 215; 45 N. Y. Supp. 215.

The learned counsel for the respondents cites many cases in which it has been held that, unless for special reasons, nonresident foreigners should not be permitted the use of our courts to

JURISDICTION OF SUBJECT-MATTER,-continued.

[Nov.

A party does not waive the objection to the jurisdiction of the subjectmatter by answering "ready" on a call of the calendar. The objection may be first raised on the trial, or on appeal.

Feist v. Third Ave. R. Co. 13 Misc. 240; 68 St. Rep. 13; 34 Supp. 57; 25 Civ. Pro. 257.

In Sentenis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831; 35 N. E. 650, it was held that a plaintiff who sued for injuries to foreign real estate and made default could not have the judgment for costs against him vacated on the ground that the court had no jurisdiction of the action.

The regular mode of raising a question as to the jurisdiction of the subject-matter of the action is by demurrer or answer; the question does not arise on a motion to set aside the service of the summons, although in a case free from doubt the court might perhaps dismiss the whole proceeding for lack of such jurisdiction.

Atlantic & Pacific Telegraph Co. v. Baltimore & Ohio R. Co. 87 N. Y. 355. The proper mode of raising objection to the jurisdiction of the subjectmatter is by demurrer or answer and not by motion to dismiss.

Delaware, L. & W. R. Co. v. N. Y. S. & W. R. Co. 12 Misc. 230; 67 St. Rep. 784; 33 Supp. 1081.

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redress wrongs committed within their own territory, or to enforce contracts made therein. But these cases were either cases where the action was brought by one nonresident against another nonresident to recover damages for a tort, or where it was clearly apparent that the courts of this state could not do justice to the parties because of the special facts of the particular case. It is not the rule that the courts of this state will not take jurisdiction of an action of contract unless special reasons are found for their doing so, although that may be said to be the rule in regard to actions of tort. Burdick v. Freeman, 46 Hun, 138; 10 St. Rep. 756; 27 W. Dig. 313; affirmed 120 N. Y. 420; 24 N. E. 949; 31 St. Rep. 427. But as to actions on contract the rule is precisely the other way. Our courts will ordinarily entertain such an action, unless special reasons are shown why it should not be done.

There can be no doubt, either, that the court has jurisdiction of the subject-matter. The action was brought to recover a sum

JURISDICTION OF SUBJECT-MATTER,-continued.

On an application for change of attorneys, a referee was appointed to determine the former attorney's compensation, whose award was reversed on appeal with costs against the attorney. An action on the judgment for costs had been successfully maintained in another state. It was held too late after ten years for the attorney to assail the jurisdiction of the court over the proceeding to fix compensation.

Griggs v. Brooks, 79 Hun, 394; 61 St. Rep. 499; 29 Supp. 794.

Although an action must be dismissed because the court has no jurisdiction of the subject-matter the court may render a judgment for costs against the plaintiff.

Day v. Sun Ins. Co. 40 App. Div. 305; 91 St. Rep. 1033; 57 Supp. 1033.

c. Foreign lands.

Our courts have no jurisdiction over foreign lands by proceedings in rem but where they have jurisdiction of the proper parties, they may, by their judgment, compel the parties to do equity (specific performance) in relation to such lands. The court acts in such cases, in personam.

Gardner v. Ogden, 22 N. Y. 27.

Courts of this state have jurisdiction of an action to declare void and compel the cancelation of a mortgage of lands lying in another state and

Appellate Division.

of money claimed to be due to the plaintiff from the defendants. Of such an action the supreme court always has had jurisdiction. It must be remembered that the question of the jurisdiction of the subject-matter presented by this demurrer has nothing to do with the question whether the allegations of the complaint set out a good cause of action upon a subject of which jurisdiction exists. "Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved there in, and is not dependent upon the state of facts which may appear in a particular case, or the ultimate existence of a good cause of action in the plaintiff therein." Hunt v. Hunt, 72 N. Y. 217.

[Nov.

For these reasons the demurrer was not well taken, and the judgment entered thereupon must be reversed, and judgment given to the plaintiff, with costs, with leave to the defendants to withdraw the demurrer and answer upon the payment of costs in this court and in the court below. All concur.

JURISDICTION OF SUBJECT-MATTER,-continued.

executed there in pursuance of a contract entered into in this state to secure loans made and payable in this state, some of which are usurious and void by our laws.

Williams v. Fitzhugh, 37 N. Y. 444.

"The mere circumstance that the land is in another state can, upon no principle that I can discover, furnish a reason for denying the jurisdiction of our courts, or for questioning the propriety of its exercise."

Id. p. 449.

Courts of this state have jurisdiction of an action for specific performance of a contract to convey lands situate without the state, the contract being made by a nonresident and without the state, but to be performed here. Baldwin v. Talmadge, 39 Super. 400.

The authorities are uniform that specific performance of contracts as to land lying in another state may be decreed.

Newton v. Bronson, 13 N. Y. 587.

Myers v. De Mier, 4 Daly, 343; Aff'd 52 N. Y. 647.

Rochester & Kettle Falls Land Co. v. Roe, 8 App. Div. 360; 75 St. Rep. 179; 40 Supp. 799.

Ward v. Arredondo, Hopk. Ch. 213.

Cleveland v. Burrill, 25 Barb. 532.

1899]

JURISDICTION OF SUBJECT-MATTER,-continued.

Courts of this state have jurisdiction of an action for an accounting by a cotenant of realty situate in another state against another cotenant for minerals removed therefrom.

Abbey v Wheeler, 10 Misc. 61; 63 St. Rep. 166; 30 Supp. 874.

So, of an action to redeem from a forfeiture of a lease of lands without the state.

Chase v. Knickerbocker Phosphate Co. 32 App. Div. 400; 87 St. Rep. 220; 53 Supp. 220.

And of an action by a bondholder to restrain a diversion of the assets of a foreign railroad, contrary to the terms of the mortgage to a New York Trust Co., and to compel an accounting.

Buel v. B. & O. R. Co. 24 Misc. 646; 87 St. Rep. 749; 53 Supp. 749.

Our courts have jurisdiction of an action to procure a strict foreclosure of a mortgage on lands situate in another state.

House v. Lockwood, 40 Hun, 532.

A court of equity has jurisdiction to compel a party to execute a conveyance of lands without the state sufficient to vest t title and possession of the land in the grantee.

Bailey v. Ryder, 10 N. Y. 363, 370.

Courts of this state have jurisdiction of an action for damages and an accounting of rents and profits arising from a conspiracy to deprive the plaintiff of his title to lands without the state, the conspiracy being formed without the state by nonresidents thereof.

Mussina v. Belden, 6 Abb. Pr. 165.

So, too, as to a conspiracy to defraud by false representations as to the soundness of an insurance company, made without the state.

Latourette v. Clark, 45 Barb. 327.

Where a plaintiff sues for damages to real property situate in another state and is defeated, he cannot object that the court has no jurisdiction of the subject of the action and thus escape a judgment for costs.

Sentennis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831.

In this case distinction was drawn between cases where jurisdiction was prohibited by statute and those which courts could entertain in their discretion.

In De Courcy v. Stewart, 20 Hun, 566, it is said to be well settled that an action of trespass quare clausum fregit, committed in another state, cannot be maintained in this state.

Citing Hurd v. Miller, 2 Hilt. 540.

Watts v. Kinney, 23 Wend. 484; Aff'd 6 Hill, 82.

To the same effect is Dodge v. Alby, 108 N. Y. 445; 13 St. Rep. 848; 15 N. E. 703.

And Sprague Nat. Bank v. Erie R. Co. 40 App. Div. 69; 91 St. Rep. 844; 57 Supp. 844.

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