Ubart v. Baltimore & Ohio Railroad

Rich, J.:

I concur in the result, but cannot assent to the proposition that non-residence' must be pleaded. The defendant is a foreign corporation, and upon this appeal contends that Mrs. Ubart was a nonresident of this State at the time this action was commenced and that the trial court was, therefore, without jurisdiction. Counsel urges that it was incumbent upon- the plaintiff to show by a preponderance of the evidence’that the domicile of John Ubart (the husband) was in the State of Hew York at the time the action was commenced. The complaint alleges that the plaintiff was at the time of the commencement of the action a resident of the State of Hew York. The answer consists of a single paragraph as follows: And now comes the defendant above named and * * * answers the . complaint of the plaintiff above named and thus answering: I». On information and belief, denies any knowledge or information sufficient to form a belief as to the truth of any of the *834allegations of paragraphs ‘I’ and ‘III’ of the complaint herein.”’ It is true the answer is bad as a denial and did -not put in issue the residence of the plaintiff. (Code Civ. Proc. § 500.) But the defendant is not'deprived of the right to object to the jurisdiction of the court at any stage of the action, and if .it was made to appear, that the plaintiff was a non-resident at the time of the commencement of tlie action,.it became the duty of the trial court to, refuse to proceed further and to dismiss. the action, for it is Hot-sufficient that a non-resident-plaintiff should by service .of process or in any other way obtain jurisdiction of a foreign corporation. Before such an action can be maintained there must be also jurisdiction of the subject-matter, which cannot be conferred upon the court by consent or. stipulation of the parties , and which is not waived by a failure of the defendant to allege non-residence of the ’ plaintiff in its answer. (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.) The question of plaintiff’s .residence was dependent upon conflicting evidence and presented a question of fact for the jury, and their verdict, must be sustained if there is sufficient evidence before them to justify their finding. -1 tliinlc the record discloses sufficient evidence to justify the conclusion that Mrs,. Ubart was at the time of the commencement' of her action- a resident of the State of New York.

I vote to affirm, with costs.

Judgment and order unanimously affirmed, with costs.