Brisbane v. Pennsylvania R. Co.

• Decision Date: 21 May 1912
• Parties: BRISBANE v. PENNSYLVANIA R. CO.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 431

98 N.E. 752

BRISBANE

v.PENNSYLVANIA R. CO.

Court of Appeals of New York.

May 21, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Arthur Brisbane against the Pennsylvania Railroad Company. From a judgment of the Appellate Division (141 App. Div. 366,125 N. Y. Supp. 1042) reversing a judgment for defendant on demurrer to the complaint, defendant appeals on certified questions. Reversed and order of Special Term affirmed.

See, also, 142 App. Div. 936,126 N. Y. Supp. 1122.Norman B. Beecher, of New York City, for appellant.

Clarence J. Shearn, of New York City, for respondent.

CULLEN, C. J.

The authorities in the highest courts of this state are uniform to the effect that our courts have no jurisdiction of an action for damages for injuries to real estate lying without the state, and the latest decisions are quite recent. Watts' Adm'rs v. Kinney, 23 Wend. 484; s. c., 6 Hill, 82;American Union Tel. 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. It was so held by Chief Justice Marshall in Livingston v. Jefferson, 1 Brock, 203, Fed. Cas. No. 8,411, where he decided that an action could not be maintained in Virginia for trespass upon lands in Louisiana. Such, also, is the rule in the great majority of the states (Allin v. Conn. River Lumber Co., 150 Mass. 560, 23 N. E. 581,6 L. R. A. 416;Niles v. Howe, 57 Vt. 388;Du Breuil v. Pennsylvania Co., 130 Ind. 137, 29 N. E. 909;Eachus v. Illionis, etc., Canal, 17 Ill. 534;Bettys v. Milwaukee, etc., Ry. Co., 37 Wis. 323; Cooley on Torts [2d Ed.] p. *471), though there are some where the contrary rule prevails (Little v. Chicago, etc., R. Co., 65 Minn. 48, 67 N. W. 846,33 L. R. A. 423, 60 Am. St. Rep. 421;Holmes v. Barclay, 4 La. Ann. 63), and the old law was changed in Virginia by statute. Were the question an open one, I would favor the doctrine that our courts have jurisdiction of actions to recover damages for injuries to foreign real estate. Chief Justice Marshall in Livingston v. Jefferson, supra, expressed his personal disapproval of the rule which he felt bound to give effect under the authorities. In the century which has elapsed since Chief Justice Marshall's decision, all the decisions in this state which I have cited have been rendered. At this late day I think we would not be justified in overruling these cases, but should leave it to the Legislature to change the rule by statute.

Nor do I see any ground on which the case before us can be distinguished from the others in this court. It is conceded that an action for trespass or trespass on the case for injuries to foreign land cannot be maintained here under our rule. But it is sought to take this case without the rule on the ground that it is an action for negligence and transitory. I understand that an action for negligence is, or was so long as actions had names and forms, an action of trespass on the case, and it was for trespass on the case for injury to realty, or trespass on the case for injury to the person or to personal property, dependent on the injury for which recovery was sought, whether to realty, personalty, or the person of the plaintiff. Pomeroy's Code Remedies, § 20; Tyler's Stephen on Pleadings, p. 46. Such an action for injury to realty was never transitory in this state, at least until the enactment of the present Code of Civil Procedure in 1877, since which time the rule may be doubtful. By the Revised Statutes it was enacted (2 R. S. p. 409, § 2) that actions for trespass on lands and for trespass on the case for injury to real estate should be tried in the county in which the subject of the action was situated, Graham's Pr. p. 194. Section 123 of the old Code of Procedure, which was the law in force when Barney v. Burstenbinder, 7 Lans. 210, and Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182, were decided, prescribed that actions for injuries to real property must be tried in the county in which the subject of the action was situated. Therefore there was no foundation for the proposition which it is contended that those cases decided that an action for damages for injuries to real estate through negligence was transitory. I doubt very much whether the proposition was decided or intended to be decided in the earlier case, which was for injuries occasioned by an explosion in California. The action was for injuries to personal as well as to real property. It was there said that the injury to the real estate was only an element of the damage. Of course a cause of action for injury to personal property is transitory, and therefore the action could be maintained to some extent in our courts. How, if at all, the question of the right to recover here for the injury to the real estate was raised by the defendant does not appear.

Under the present section 982 of the Code it is not entirely certain whether actions for injuries to real estate are local or transitory, but it is not necessary to consider that question, for it has been decided that it does not affect the question before us. In Cragin v. Lovell, supra, 88 N. Y. 263, it was said: ‘It is a mistake to suppose that this rule (i. e., the rule that the court had not jurisdiction of actions for injuries to foreign real estate) has been changed by section 982 of the Code. That section was not intended to define the jurisdiction of the Supreme Court, but simply to determine the place of trial of actions of which it had jurisdiction.’

The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in both courts, with leave to the plaintiff to serve an amended complaint within 20 days on the payment of costs. The first and second questions certified should be answered in the negative and the third in the affirmative.

GRAY, J.

I think that this case falls within the rule which denies jurisdiction to our courts of actions to recover damages for an injury to real estate not situate within this state. I agree, therefore, with the chief judge that the demurrer to the complaint should be sustained. This action is like the old action of trespass on the case where the injury is consequential, or, being direct, is the result of negligence. It was always deemed to be local in its nature and not transitory. That was the settled rule at common law, and it was early adopted and followed in the courts of this state. Under the authorities, and the chief judge has cited them, the question cannot well be regarded as an open one, or I would feel free to concur with Judge Haight's opinion. Broad as is the language of section 1780 of our Code of Civil Procedure, it is nevertheless concededly restricted in its application to causes of action which are within the jurisdiction of the court. I am not satisfied that a valid distinction is suggested in the argument that the gravamen of the action is negligence and the relief sought is a money judgment by way of damages. It is still an action for injury to real estate as the result of that negligence. In Doulson v. Matthews, 4 Durn. & East, 503, an action of trespass quare clausum fregit, it was argued without avail by Erskine that, because the action was to recover a satisfaction in damages and not the land, it was personal and therefore transitory. In Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411, Chief Justice Marshall, with reference to the distinction between local and transitory actions, said: ‘That actions are deemed transitory where the transactions on which they are founded might have taken place anywhere, but are local where their cause is in its nature necessarily local.’ Chancellor Walworth in Watts' Adm'rs v. Kinney, 6 Hill, 82, followed Livingston v. Jefferson and repeated what the chief justice had said as to the distinction having been long before settled. It was observed by the chancellor that, although the distinction was technical, ‘the law was too well settled to allow it to be changed by the courts.’ It is significant to note, as bearing on the inflexibility of the rule, that the chancellor referred to the harshness of its working in Livingston v. Jefferson. That was an action brought in Virginia to recover for a trespass alleged to have been committed by President Jefferson upon the plaintiff's land in New Orleans, and a demurrer to the bill was sustained. The chancellor pointed out that it was evident, if the action could not be maintained in the state of Virginia, where the venerable Ex-President resided, for the alleged injury, the plaintiff was without a remedy as it was wholly improbable that the defendant would ever visit Louisiana or be reached by process from any court having jurisdiction of the subject-matter. I think that the distinction in this case is to be found in the nature of the subject of the injury alleged and not in the manner in which it was done. This plaintiff's cause of action arose, and could only have arisen, at the place described in the state of New Jersey in the result to the realty of the defendant's negligence, and I think it better to adhere to the rule that our courts could not take jurisdiction of such an action. The cases in this state cited in the chief judge's opinion as late as Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703, require the application of the rule that such an action is local and not transitory.

I do not think the distinction, which is urged, that the action is for the negligence and the relief asked is a money judgment as damages is sufficient to justify the court in departing from the settled rule.

HAIGHT, J. (dissenting).

The complaint in this action alleges that the defendant, a foreign corporation, had so negligently and carelessly managed a fire which it intentionally kindled and maintained in a certain locomotive that it caused to pass over its railroad that the said fire came into and upon the plaintiff's premises in the town of Allaire, state of New Jersey, and...