The defendants, though a foreign corporation could be sued in this Court by a resident of the State, for any cause of action, and by a plaintiff not a resident of the State, when the cause of action arose or the subject of the action was situate within this State. (Code, § 427.) The plaintiff being a resident of New Jersey, sued the defendants in this Court upon a cause of action arising in New Jersey, and when the fact of his residence in that State was disclosed at the commencement of the trial, the complaint was dismissed for want of jurisdiction. The plaintiff selected the forum, and the defendants were obliged to appear and defend, it not appearing by the complaint that the plaintiff was not a resident of this State. The question presented by these facts is whether the defendants are entitled to costs. The Superior Court of this city has considered and determined the question in favor of the right, and for reasons which are satisfactory to my mind. (McMahon v. Mutual Benefit Life Insurance Co., 3 Bosw., 644.)
The case of Gormly v. McIntosh, (22 Barb., 271,) upon which the respondent chiefly relies, differs from the one in hand. The want of jurisdiction in the County Court was “ apparent upon the face of the summons and complaint,” and the rule in regard to costs in such cases, is not the same as that which governs in cases where the want of jurisdiction does not appear. Justice Smith, in his opinion in that case, says " the want of jurisdiction in these cases of the subject matter being apparent on the face of- the summons and complaint, the County Court should have dismissed the suit without costs, in conformity with the rules so laid down by Judge Cowen in Malone v, Clark, (2 Hill, 657,) and it follows that *379no costs can be recovered by the appellants in the County Court, and the allowance on taxation must be reversed. This rule in respect to costs cannot apply in cases where the want of jurisdiction does not appear upon the face of the proceedings, hut it is presented by plea on demurrer, and the Court is called to adjudicate upon the question.” When however the question is presented in that mode, the complaint showing a prima facie case, the prevailing party is entitled to costs. Justice Smith cites several cases in support of the doctrine stated.
The complaint in this action presented aprima facie case of jurisdiction, and the Court could not have dismissed the action upon the complaint alone. The defendants by answering did not waive the objection to the jurisdiction (Code, § 148) which could be urged upon the trial in the nature of either plea or demurrer, and on this case upon proof of the fact that tile plaintiff was a non-resident of this State. The admission of the fact mentioned only relieved the defendants from the necessity of proving it, but when admitted it.became necessary for the Court to adjudicate upon the question, and costs followed as already shown. If the defendants had set up by plea or answer that the plaintiff was a non-resident, it is clear on the authority of Gormly v. McIntosh, and cases cited, that the defendants would be entitled to costs, and as they were not obliged to set it up, but could prove it by way of answer or demurrer at the trial, the result must he the same. If the plaintiff had not admitted the fact, he could have gone in with his proofs and compelled the defendants to prove the fact of his non-residence in support of their objection that the Court had no jurisdiction. The burden of proof was upon them. This case is therefore to all intents and purposes, an adjudication upon the question of the plaintiff’s residence. The plaintiff is not the prevailing party, and such being the fact, as shown by the opinion of Justices Bosworth and Woodruff in McMahon v. Mutual Benefit Life Insurance Co., supra, the defendants are entitled to costs.
I think the order of the Special Term should be reversed with ten dollars costs.
Dalt, E. J., concurred.
Hiltox, J., dissented.