Section 1780 of the Code of Civil Procedure, so far as now material, provides as follows: "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." The words "for any cause of action" I think must be deemed to mean any cause of action, within the jurisdiction of the court, which the legislature has the power to confer and actually has conferred upon it. (Ernst v. Rutherford B.S. Gas Co., 38 App. Div. 388. ) It is contended that the legislature has no power to give the courts of this state jurisdiction to adjudicate with reference to the title and injury to lands in another state which are subject to the jurisdiction of the courts of such state. I think it must be conceded that a question as to title of real estate and injuries thereto, either by trespass on the case or trespass quare clausum fregit must be deemed to be local, and that the rights of the parties must be determined in the forumrei sitæ. (Story on Conflict of Laws, § 554; Watts' Admrs. v.Kinney, 23 Wend. 484; Am. Union Tel. Co. v. Middleton,
*Page 439 80 N Y 408; Cragin v. Lovell, 88 id. 258; Dodge v. Colby, 108 id. 445; Sentenis v. Ladew, 140 id. 463; Ernst v.Rutherford B.S. Gas Co., supra.) In the last case cited our present chief judge stated with reference to the provisions of section 1780 of the Code: "We do not suppose that it is intended by this section of the Code to give our courts any greater jurisdiction in the case of actions against foreign corporations than they have against natural persons," and "In that case the action was substantially to restrain a trespass upon real estate without this state, and it was settled law even in the case of natural persons that the courts of this state have no jurisdiction in actions for trespass upon lands situated in other states." (p. 391.)
I am, however, of the opinion that this case is distinguishable. As we have seen, the complaint charges negligence. The defendant is a foreign corporation, operating a railroad through lands of the plaintiff. The locomotive from which the spark of fire was emitted was operated over the defendant's own right of way where it had the right to run its locomotive and train and no claim is made that it in any way ran upon or trespassed upon the plaintiff's lands. That which the defendant did was to negligently run a locomotive which was defective and permitted the emission of sparks or coals of fire which by reason of the wind or currents of air were carried over upon the lands of the plaintiff, igniting the combustible material thereon and starting the fire complained of. The negligent running of the defective locomotive was the proximate cause, the blowing of the coals of fire over on to the lands of the plaintiff the intermediate agency, and the kindling of the fire the resultant cause. It, therefore, appears that the gravamen of the action was the negligence above alluded to, that the injury to the realty was the culminating consequence of such negligence and that the right to recover damages was dependent on the establishing of such negligence. *Page 440
In cases where the gravamen of the action is negligence and the relief sought is the recovery of a sum of money as damages, I think the action is personal and transitory and may be maintained whenever the courts have jurisdiction of the subject-matter and have acquired jurisdiction of the person charged with the negligence.
In the case of Home Insurance Company v. PennsylvaniaRailroad Company (11 Hun, 182) the defendant was charged with negligence in setting a fire by the emission of sparks from a locomotive which resulted in the burning of a barn for which the plaintiff, an insurance company, had been compelled to pay the losses sustained by the owner. The insurance company then brought action against the defendant charging negligence. The barn was in the state of Pennsylvania and the action was brought in this state. In that case BRADY, J., in delivering the opinion of the court, said "That the gravamen of the action was negligence and actions of that character are personal and transitory." In the case of Barney v. Burstenbinder (7 Lans. 210) the action was for negligence resulting in the explosion of nitroglycerine which damaged real estate in California. It was held that the action was personal and transitory, and could, therefore, be maintained in the courts of this state. In Robinson v. Oceanic SteamNavigation Company (112 N.Y. 315) the action was brought in this state to recover damages for wrongfully and negligently causing the death of plaintiff's intestate within the territorial limits of the United Kingdom of Great Britain and Ireland. In that case the plaintiff was not a resident of this state and the case was, therefore, not brought within the provisions of section 1780 of the Code to which we have alluded. For that reason it was held that, although the action was transitory and could have been maintained by a resident, it could not be maintained here by a non-resident, thus following Smith v. Bull (17 Wend. 323). It is true that in the last two cases cited *Page 441 the claims were for personal injuries, but the basis upon which the action was prosecuted was that of negligence and no recovery could have been had without establishing that charge. For this reason they were held to be transitory. The same view is true with reference to actions for negligence, in which damage to property has resulted, in which the right to recover is dependent upon the proof of negligence. At common law and under some provisions of statutes actions of ejectment or trespass upon real estate were deemed local and could only be maintained in the place where the real estate was situate. On the other hand, a right of action based upon negligence was never considered to be local, but instead, has been regarded as transitory and the injuries resulting from such negligence to the person or property only bore, or were considered, upon the question of damages.
The complaint in this action did not state that the plaintiff was a resident. The Appellate Division held that the Supreme Court, being a court of general jurisdiction, would assume that he was a resident unless the question was raised by the answer; that it could not be raised by a demurrer. Apparently, this disposition of the question has been acquiesced in by the defendant, for it has not been certified to us as a question which we are called upon to review.
The order of the Appellate Division should be affirmed, with costs, but with leave to the defendant to withdraw the demurrer and serve its answer within twenty days upon payment of the costs accrued. The first question should be answered in the affirmative; the third in the negative, and inasmuch as the second question pertains to an action for injury to real property and not negligence, it is not material, and, therefore, not answered.
WILLARD BARTLETT and COLLIN, JJ., concur with CULLEN, Ch. J., and GRAY, J.; HISCOCK and CHASE, JJ., concur with HAIGHT, J.
Order of Appellate Division reversed and judgment of *Page 442 Special Term affirmed, with costs in both courts, with leave to serve amended complaint within twenty days on payment of costs. First and second questions certified answered in the negative. Third question certified answered in the affirmative.