Gundlin v. Hamburg-American Packet Co.

Stettin, Germany, and which it failed to deliver on arrival of the steamship at its place of destination in this country. On the trial it was contended on defendant's behalf that plaintiff was not, when the action was commenced, a resident of the State of New York, and the fact appeared by fair inference from plaintiff's depositions taken under a commission. Counsel for defendant, therefore, urged that the court was without jurisdiction to determine the rights of the litigants. Plaintiff's counsel thereupon, as a witness in his client's behalf, testified to the fact of the latter's residence in the city of New York at the time of the commencement of the action. On the question of plaintiff's non-residence, as well as that the baggage was lost through defendant's neglect, there ensued a conflict of evidence, and upon the submission of the case, the trial justice charged the jury as follows: "It is for you to determine whether the plaintiff in this action was a non-resident of this city when this action was commenced, February 15, 1892, as it seems to be. If you find he was not such a resident, your verdict will be for defendant. Should you conclude he was a resident, your verdict will be in favor of the plaintiff, and that will bring you to the other disputed questions of fact in the case." To this charge plaintiff's counsel excepted generally, to wit: to all that part of the charge relating to plaintiff's residence.

The vice of the exception is apparent. It is incumbent upon counsel for the excepting party to point out the specific part of the charge to which he intends to object, so that the error, if any, may be obviated. If, therefore, a charge, excepted to generally, is objectionable in some respects but unobjectionable in others, the exception does not present error (Stone v. Western Transportation Co., 38 N. Y. 240; Jones v. Osgood, 6 Id. 233; Caldwell v. Murphy, 11 Id. 416; Walsh v. Kelly, 40 Id. 556; Groat v. Gile, 51 Id. 431, 442; Hunt v. Maybee, 7 Id. 266; Haggart v. Morgan, 5 Id. 422; Oldfield v. N. Y. &

Gundlin . Hamburg-American Packet Co.

Harlem R. R. Co., 14 Id. 310, 315; McGinley v. U. S. Life Ins. Co., 77 Id. 495).

Upon the conflict of evidence it was the province of the jury to determine whether or not plaintiff was a nonresident at the time of the commencement of the action; and having determined that plaintiff was not a non-resident, and that the loss of his baggage was occasioned through defendant's fault, it was the jury's duty to return. a verdict for plaintiff. In these two last mentioned respects, therefore, the charge of the trial justice was not justly open to adverse criticism. Hence, for the reason already stated, the exception taken is not available to show that the justice erred because the charge in effect determined that the cause of action did not arise within this State, as plaintiff's counsel now contends it did. In this connection it may not be amiss to call counsel's attention to a grievous error on his part. We observe that he refers to Exhibit A," which is in the German language and attached to plaintiff's deposition, and of which there appears no translation in the record, as the passage contract between plaintiff and defendant, by the terms of which, it is claimed, defendant undertook to convey plaintiff, and to transport his baggage, from Stettin to New York. This instrument, however, does not purport to have been made on defendant's behalf, and on its face appears to be no more than a contract by one R. Mungr with plaintiff, wherein the former is described to be an emigrant-forwarding agent, accredited as such by the local authorities at Stettin, and whereby he undertook to secure plaintiff's conveyance, and the transportation of the latter's baggage, from Stettin to New York by the steamship Polynesia. Mungr's relation to defendant is nowhere defined in the instrument. Neither does the record elsewhere inform us in that respect. For aught which appears, the contract involves only a personal enterprise on Mungr's part. No contract on plaintiff's part with defendant appears to have been made in this State,

Gandlin v. Hamburg-American Packet Co.

and the fact that plaintiff embarked upon defendant's steamship at Stettin will at most sustain an inference that defendant's contract with plaintiff for conveyance to this country was made at Stettin. From unchallenged evidence it appears that the destination of the steamship was Hoboken, New Jersey, and from that fact we can only infer that the place of destination was the place intended for delivery of the baggage which defendant had assumed to transport. In the abstract we agree with plaintiff's counsel, that a contract is broken by failure to perform it at the place where, by its terms, the contract was to be performed, and that the cause of action arises when and where the breach occurs (Perry v. Erie Transfer Co., 28 Abb. N. C. 430, and note; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Burckle v. Eckhart, 3 Id. 132; Toronto Gen. Trust Co. v. Chicago, Burlington & Q. R. R. Co., 32 Hun, 190; Pres., etc., Bank of Commerce v. Rutland & Washington R. R. Co., 10 How. Pr. 1; Pomeroy's Remedies and Remedial Rights, $$ 452, 454, 518, 520). Upon the evidence, however, these propositions lead to the conclusion that the cause of action sued upon arose in New Jersey.

Counsel for appellant, however, further assails the judgment appealed from upon the ground that in so far as the charge directed the jury to find for the defendant if they believed plaintiff to have been a non-resident at the time of the commencement of the action, it involved an assumption of excessive jurisdiction on the part of the trial court, because it was incumbent upon the court, when the fact of plaintiff's non-residence was ascertained, to decline to adjudge the rights of the litigants, and to dismiss the action; and that, therefore, the verdict for defendant, as well as the judgment rendered thereon, are coram non judice and void. It is conceded that the verdict and judgment would have the effect claimed if the fact of plaintiff's non-residence appeared affirmatively from the record. Section 1780, of the Code of Civil Procedure,

Gundlin v. Hamburg-American Packet Co.

inhibits the courts of this State from maintaining an action by a non-resident or foreign corporation against a foreign corporation, except when the action is brought to recover damages for the breach of a contract made within this State, or relates to property within this State when the contract was made, or is to recover real property or a chattel within this State, or the cause of action arose therein. These inhibitory provisions operate to limit the jurisdiction of the courts with respect to the subject matter of the litigation, and when, therefore, in an action against a foreign corporation the status of the plaintiff as a foreign corporation, or non-resident, is conceded or otherwise ascertained, and the case does not present one of the exceptions above mentioned, the courts of this State cannot proceed to adjudge the rights of the litigants, but must dismiss the action (Perry v. Erie Transfer Co., 28 Abb. N. C. 430; Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315; Davidsburgh v. Knickerbocker Life Ins. Co., 90 Id. 526).

As jurisdiction of the subject matter cannot be conferred by consent of the litigants, so it cannot be conferred by their omission to object to the exercise of jurisdiction; nor are the parties estopped from disputing the validity of the judgment for want of jurisdiction of the subject matter of the action at any time (Wilmore v. Flack, 96 N. Y. 512, 519; McMahon v. Rauhr, 47 Id. 67). No exception is required, and the objection that the judgment was in excess of the power of the court to render it is available on appeal, though made for the first time (Cook v. Whipple, 55 N. Y. 150, 157; Fiester v. Shepard, 92 Id. 251; Matter of Larson, ç6 Id. 381).

Every intendment, however, is in favor of the validity of a judgment, if regular on its face, and the burden of establishing a want of jurisdiction is upon him who asserts it (Ferguson v. Crawford, 86 N. Y. 610); and if the court which rendered the judgment had jurisdiction generally of actions involving a like subject matter, the presumption

Gundlin v. Hamburg-American Packet Co.

is that it had jurisdiction in the particular case, unless the facts which limit the exercise of jurisdiction in prescribed cases affirmatively appear. "If the petitioner states such a case in his petition that, on demurrer, the court would render judgment in his favor, it is an undoubted case of jurisdiction" (U. S. v. Arredondo, 6 Peters, 709; 85 V. S. 959; Davis v. Packard, 6 Wend. 327, 332; People ex rel. Tweed . Liscomb, 60 N. Y. 559).

The case at bar is to be distinguished from cases where the existence of certain facts must appear to sustain jurisdiction (Fischer v. Langbein, 103 N. Y. 84). Here the existence of a certain fact, non-residence of the plaintiff, is required to oust the court of jurisdiction. The existence of such a fact will not be presumed. To authorize a dismissal of the action, therefore, under the provision of 1780 of the Code of Civil Procedure, for want of jurisdiction because of the non-residence of the plaintiff, the fact of his non-residence must be first proved and determined (Leslie v. Lorillard, 18 N. Y. Weekly Dig. 288; Gurney v. Grand Trunk Ry. Co., of Canada, 37 State Rep. 557). No such determination was had in the case under consideration. How, then, may we say that the court below was without jurisdiction because plaintiff was a nonresident of this State when the action was commenced? It is the province of the trial court, not of the appellate court, to determine the facts upon a conflict of evidence (Purchase v. Mattison, 25 N. Y. 211; Whitehead v. Kennedy, 69 Id. 462; Cuff v. Dorland, 57 Id. 560; Riley 7. Black, 1 Misc. R. 292; Coe v. Raymond, 89, N. Y. 612); and if jurisdiction be dependent upon the existence or nonexistence of certain facts, the trial court has power to determine the facts upon the evidence (Roderigas v. East River Sav. Bk., 63 N. Y. 460, 464). Upon a jury trial, unless the contrary appears, it must be assumed that the jury found all the essential facts of which there was sufficient evidence consistently with the verdict (Sutter Vanderveer, 122 U. S. 652; 3 Silvernail, Ct. App. 130).