I cannot agree with the majority view that the burden which would be cast on plaintiff by refusing jurisdiction has relation to the question whether the defendant is unreasonably burdened by the suit. The test of whether the burden on the defendant is unreasonable is clearly indicated by the decisions to be whether the cause of action involved arose out of business done in the State of the forum. There are many confusing situations which would arise if we applied a test of comparative hardship.
Nor do I agree with the reason assigned by the learned justice below in denying the motion. It appears here that the moving defendant was engaged in this State in “ commerce with foreign *242nations,” as that phrase is used in the Federal Constitution (Art. 1, § 8, subd. 3). Therefore, this commerce is entitled to protection against suits in our courts brought by non-residents based on causes of action having no relation to the business carried on here. That the present suit arose out of a transaction not involving foreign commerce as so defined, i. e., a contract made in Boston, Mass., for carriage from Cherbourg in France to Montreal in Canada, is entirely beside the point. The burden is none the less onerous because the witnesses whom defendant would have to bring here might come to testify in relation to such a contract rather than one of carriage say from Boston to Cherbourg, although on the reasoning below the latter suit need not be met here.
The burden is placed on foreign commerce by compelling a defendant engaged therein to defend a suit arising in a remote place. It does not matter that the transaction out of which the suit arose was not “ commerce with foreign nations,” as that term is used in the Constitution.
That a defendant, engaged here in foreign or interstate commerce, in addition thereto made contracts to be performed wholly outside this country would not, in my opinion, deprive it of the right to claim exemption from suits of a burdensome nature. It might well be that if the defendant carried on an intrastate business within this State it would lose that right. Or, if the bulk of its business here was of a kind that was not entitled to protection, the courts might hold that the claim of exemption was not to be sustained. In this case neither of these situations exist.
The question remains whether appellant waived the right to relief by a consent to be sued. (See Baltimore Pub. Co. v. Swedish-Am. Mex. Line, Ltd., 143 Misc. 229, decided herewith.) The answer raised no claim of exemption from suit. Ordinarily, a general appearance obviates any question of jurisdiction of the person of the defendant. My view is that the objection now raised is one to jurisdiction of the person. (Baltimore Pub. Co. v. Swedish-Am. Mex. Line, Ltd., supra.) The United States Supreme Court, however, has held that local rules of procedure may not be used to prevent the defendant from urging this kind of objection if seasonably made. (Michigan Central R. R. Co. v. Mix, 278 U. S. 492.) Therefore, it may be that an objection of this nature could be urged after general appearance, but at least it should appear that the defendant did not have a reasonable opportunity to raise the question before or at the time of answering. There is no such claim made here. I think, therefore, that the right to object has been waived.
I concur in affirmance on this ground.