I think that this case falls within the rule, which denies jurisdiction to our courts of actions to recover damages for an injury to real estate not situate within this state. I agree, therefore, with the chief judge that the demurrer to the complaint should be sustained. This action is like the old action of trespass on the case; where the injury is consequential, or, being direct, is the result of negligence. It was always deemed to be local in its nature and not transitory. That was the settled rule at common law, and it was early adopted and followed in the courts of this state. Under the authorities, and the chief judge has cited them, the question cannot well be regarded as an open one; or I would feel free to concur with Judge HAIGHT'S opinion. Broad as is the language of section 1780 of our Code of Civil Procedure, it is, nevertheless, *Page 437 concededly, restricted in its application to causes of action, which are within the jurisdiction of the court. I am not satisfied that a valid distinction is suggested in the argument that the gravamen of the action is negligence and the relief sought is a money judgment by way of damages. It is, still, an action for injury to real estate as the result of that negligence. In Doulson v. Matthews, (4 Durn. East, 503), an action of trespass quare clausum fregit, it was argued without avail by ERSKINE that, because the action was to recover a satisfaction in damages and not the land, it was personal and, therefore, transitory. In Livingston v. Jefferson, (1 Brock. 203), Chief Justice MARSHALL, with reference to the distinction between local and transitory actions, said "that actions are deemed transitory, where the transactions on which they are founded, might have taken place anywhere; but are local, where their cause is in its nature, necessarily local." Chancellor WALWORTH, in Watts' Admrs. v. Kinney, (6 Hill, 82), followedLivingston v. Jefferson and repeated what the chief justice had said as to the distinction having been long before settled. It was observed by the chancellor that, although the distinction was technical, "the law was too well settled to allow it to be changed by the courts." It is significant to note, as bearing on the inflexibility of the rule, that the chancellor referred to the harshness of its working in Livingston v. Jefferson. That was an action brought in Virginia to recover for a trespass, alleged to have been committed by President Jefferson upon the plaintiff's land in New Orleans, and a demurrer to the bill was sustained. The chancellor pointed out that it was evident, if the action could not be maintained in the state of Virginia, where the venerable ex-president resided, for the alleged injury, the plaintiff was without a remedy; as it was wholly improbable that the defendant would ever visit Louisiana, or be reached by process from any court having jurisdiction of the subject-matter. I think that *Page 438 the distinction in this case is to be found in the nature of the subject of the injury alleged and not in the manner in which it was done. This plaintiff's cause of action arose, and could only have arisen, at the place described in the state of New Jersey, in the result to the realty of the defendant's negligence, and I think it better to adhere to the rule that our courts could not take jurisdiction of such an action. The cases in this state, cited in the chief judge's opinion, as late as Dodge v.Colby, (108 N.Y. 445), require the application of the rule that such an action is local and not transitory.
I do not think the distinction, which is urged, that the action is for the negligence and the relief asked is a money judgment as damages, is sufficient to justify the court in departing from the settled rule.