An action for the recovery of damages for injury to real property cannot be sustained out of the territory where the injury was •committed. ’When the cause of action is necessarily local the territorial jurisdiction is exclusive. It has accordingly been long settled that an action for damages done to real property in one of the ■other States of this Union cannot be maintained in the courts of this State. (Watts v. Kinney, 6 Hill, 82; American Union Telegraph Co. v. Middleton, Court of Appeals, March 10, 1880, not reported.)
It seems to have been assumed that the counter-claim set up in the amended answer of the defendant in this action, to which the plaintiff interposed a demurrer, is for injury to real property ■outside of the State of New York, but the difficulty is that the fact does not appear on the face of the answer. The only fact .•stated is, that the injury and waste complained of were done on the plantation called the Live Oaks, but where the land is situated is nowhere alleged in the answer. The answer refers to the Live ■Oaks mentioned in the complaint, and if we were at liberty to turn to the complaint it would be found, there alleged, that the plantation mentioned is located in the State of Louisiana. This will not .suffice. The plaintiff can only demur to a counter-claim, or a defense consisting of new matter contained in an answer, on- the ground that it is insufficient in law on the face thereof. (Code Civ. Pro., § 494.) As, therefore, the insufficiency of the answer -does not appear on its face, the objection to it cannot be raised by ■demurrer. It can only be raised on the trial after the facts are •disclosed by the testimony.
The judgment appealed from must be affirmed, with costs.
*104Gilbert, J., concurred ; Barnard, P. J., not sitting.Judgment affirmed, with costs.