Sentenis v. Ladew

Citation140 N.Y. 463,35 N.E. 650
PartiesSENTENIS et al. v. LADEW et al.
Decision Date19 December 1893
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, first department.

Action by Ottilie Sentenis and others against Edward R. Ladew and others. From an order of the general term (24 N. Y. Supp. 1141, mem.) affirming an order of the special term denying plaintiffs' motion to set aside a judgment dismissing the complaint, and allowing defendants costs, plaintiffs appeal. Affirmend.

Benjamin F. Gerding,(C. Bainbridge Smith, of counsel,) for appellants.

Martin & Smith,(George A. Strong, of counsel,) for respondents.

MAYNARD, J.

The plaintiffs impleaded the defendants in the supreme court for trespass upon real property in the state of Tennessee, alleging damages to the amount of $50,000, and demanding judgment for that sum. A defense was interposed, and the issues joined were noticed for trial, and when the cause was called for the purpose of making up the day calendar the plaintiffs' attorney announced that they were ready for trial. When the cause was reached on the day calendar the plaintiffs made default, and an order was entered dismissing their complaint, with costs, and with an extra allowance of $1,000. Judgment was subsequently entered, in which it was adjudged that the complaint be dismissed, and that the defendants recover of the plaintiffs $1,115.70, costs and disbursements, and have execution therefor. The plaintiffs subsequently moved to set the judgment aside upon the ground that the court had no jurisdiction of the subject-matter of the action; it being for trespass upon real property not situated within the state, and it could not, therefore, enter a valid judgment. The courts below have denied the motion, and the plaintiffs have brought this appeal.

We entertain no doubt that the supreme court had jurisdiction to render the judgment awarded in this action. Under the constitution, it has general jurisdiction in law and equity, and of the class of actions to which this cause belongs. It is not prohibited by any statute from entertaining jurisdiction of a suit for damages for injuries to real property in another state. As was stated by Judge Earl in Cragin v. Lovell, 88 N. Y. 258: ‘It is a general rule of law that actions for injuries to real property must be brought in the forum rei sitae, and this rule of law has been, so far as I can discover, uniformly sanctioned and upheld in this state.’ But a party may waive a rule of law or a statute, or even a constitutional provision, enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved; and, having once done so, he cannot subsequently invoke its protection. Lee v. Tillotson, 24 Wend. 337;Embury v. Conner, 3 N. Y. 511;In re Cooper, 93 N. Y. 507. If the court acquires jurisdiction of the persons of the parties by due personal service of process, or by their voluntary appearance and submission to its jurisdiction, and the defendant makes no objection to the authority of the court to hear the cause, and the parties proceed to a trial upon the merits, the judgment rendered would be neither void nor voidable for want of jurisdiction, but would be binding and conclusive upon the parties. The rule of law which the courts will enforce in this class of cases, when objection is duly and seasonably made, is waived by the plaintiff when he brings the action; and it is waived by the defendant if he pleads generally, and goes to trial, without insisting upon its benefits. In all the cases to which counsel refers, the question was raised in an appropriate manner by the defendant before trial. Telegraph Co. v. Middleton, 80 N. Y. 408;Cragin v. Lovell, 88 N. Y. 258;Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703. In Telegraph, Co. v. Middleton, it arose on motion to vacate order of arrest; in Cragin v. Lovell and Dodge v. Colby, on demu...

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31 cases
  • City of Jamestown v. Pennsylvania Gas Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 28, 1924
    ...public policy or morals are involved, and having once done so he cannot subsequently invoke its protection." Sentenis v. Ladew, 140 N. Y. 463, 466, 35 N. E. 650, 37 Am. St. Rep. 569; Mayor, etc., of New York v. Manhattan Railway Co., 143 N. Y. 1, 37 N. E. 494; Musco v. United States Surety ......
  • 159 MP Corp. v. Redbridge Bedford, LLC, 26
    • United States
    • New York Court of Appeals
    • May 7, 2019
    ...of public policy or morals are involved, and having once done so he cannot subsequently invoke its protection" ( Sentenis v. Ladew , 140 N.Y. 463, 466, 35 N.E. 650 [1893] ). However, "waiver is not permitted where a question of jurisdiction or fundamental rights is involved and public injur......
  • 159 MP Corp. v. Redbridge Bedford, LLC
    • United States
    • New York Supreme Court Appellate Division
    • January 31, 2018
    ...Foursome Inn Corp., 76 A.D.2d 646, 649, 437 N.Y.S.2d 356, mod 54 N.Y.2d 580, 446 N.Y.S.2d 917, 431 N.E.2d 278, citing Sentenis v. Ladew, 140 N.Y. 463, 466, 35 N.E. 650 ). However, "when a right has been created for the betterment or protection of society as a whole, an individual is incapab......
  • Melahn v. Hearn
    • United States
    • New York Supreme Court Appellate Division
    • March 21, 1983
    ...conferred by rule of law, by statute, or even by the Constitution (Selzer v. Baker, 295 N.Y. 145, 65 N.E.2d 752, supra; Sentenis v. Ladew, 140 N.Y. 463, 35 N.E. 650), for "estoppel has a power of mastery over all other rules, and is entitled to the distinction of being of the greatest instr......
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