It is conceded by the appellant's counsel that this action was commenced on the 19th of February, 1872. The question upon this appeal, therefore, is to be determined by the law in force at that time, viz.: The act of 1870 (Chap. 470), entitled "An act to increase the number of judges of the City Court of Brooklyn, and to regulate the civil and criminal jurisdiction thereof," and not under the Code of Civil Procedure, for that statute was not then in force, nor are its provisions made applicable to actions theretofore pending.
The appellant's difficulty is not with the cause of action. That originated in a fraud practiced by the defendant upon the plaintiff, and for the damages so occasioned he could at common law bring his action in any county, if the court had general jurisdiction, and although the City Court of Brooklyn is local in its character, its power extends in such a case over all persons and corporations found by its process within the city limits. But it appears by the record that although the defendant is a domestic corporation, it was neither established in that city nor did it there transact its general business. Therefore it is not within the description of corporations over which the act of 1870, supra (§ 2), extends the jurisdiction of the court. In that respect it is limited (Subd. 6) "to actions against corporations created under the laws of this State, and transacting their general business within the said city, or established by law therein." Nor is the appellant aided by subdivision 5 of section 2 (Act of 1870, supra), which confers jurisdiction in actions "where any of the defendants shall reside, or be personally served with the summons within the said city." A *Page 529 corporation may, in a certain sense, be said to reside in the place of its location, or at the place where its business is transacted, but if these words should be deemed applicable here, it is plain, from what has been already said, that neither condition has attached to the defendant, and we agree with the court below in the opinion that both clauses of this subdivision apply to natural persons, who may properly be said to reside in a particular place, or who may be there personally served, rather than to an artificial body which in fact has no personality.
It is, however, obvious that the object of all service was accomplished. The defendant was reached in a manner satisfactory to itself. It appeared generally in the action by its attorney, and in no manner before trial complained that it was not regularly in court, or that the court had not jurisdiction either over it, or the cause of action. Such appearance, the appellant contends, was equivalent to personal service of the summons, and that the defendant should be deemed to have waived irregularity in that respect, if any there were. This question was presented to the General Term of the City Court of Brooklyn in 1876, in the case of Brauneck v. Knickerbocker Life Ins. Co. (1 Abbott's New Cases, 393), and the court held, under circumstances similar to those before us, that the objection was well taken.
In Landers v. The Staten Island R.R. Co. (53 N.Y. 450), the action was brought in the City Court of Brooklyn to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. It appeared that the defendant had no office or place of business in Brooklyn. The summons and complaint were served in the city of New York. The court held that such service was insufficient to confer jurisdiction. There the defendant also appeared and answered, but set up the want of jurisdiction, and the court held the objection must prevail.
In the present case the defendant did not take the objection by its answer, but at the end of the plaintiff's case. The point of time does not seem material. The court could not acquire jurisdiction by consent, and might, whenever its attention was *Page 530 called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation. There are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision, but where the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case the particular condition or status of the defendant is made a jurisdictional fact. (Risley v. Phenix Bank, 83 N.Y. 318, 337; 38 Am. Rep. 421; Wheelock v. Lee, 74 N.Y. 495; Hoag v. Lamont, 60 id. 96.)
The court below, therefore, committed no legal error in declining jurisdiction in this instance, and the judgment appealed from should be affirmed.
All concur, except TRACY, J., absent.
Judgment affirmed.