Opinion
June, 1893.
Strong Cadwalader, for plaintiff (appellant).
Andrew Wesley Kent, for defendant (respondent).
This is an action by a nonresident of this state against a foreign corporation, jurisdiction of which is expressly interdicted to our courts by section 1780 of the Code of Civil Procedure, except in the instances therein mentioned. On a former trial we reversed a judgment for plaintiff because it did not appear that the cause of action arose within this state, and directed a new trial to enable plaintiff to submit further evidence, if such he had. Perry v. Erie Transfer Co., 1 Misc. Rep. 208; 28 Abb. N.C. 430. The second trial again resulted in a judgment for plaintiff, which was reversed and judgment absolute directed for the defendant for dismissal of the complaint by the General Term of the court below. The justices at General Term were of the opinion that the evidence introduced for plaintiff on the second trial was insufficient to remove the objection to the maintenance of this action, and in their views we concur.
The denial in the answer was sufficient to put the allegations of the amended complaint respecting the place of payment in issue (Baylies' Code Pleading, p. 226, § 4), but in any event plaintiff is precluded from availing himself of any objection to the answer for the first time on appeal. Besides, jurisdiction could not have been conferred by defendant's admissions or consent when the facts in evidence show that the court has none of the subject-matter. There was no course open but to dismiss the complaint. See the opinion of this court on the former appeal ( 1 Misc. 208). The judgment of the General Term below must, therefore, be affirmed, with costs.
PRYOR, J., concurs.
Judgment of the General Term below affirmed, with costs.