Budris v. Consolidation Coal Co.
| Decision Date | 07 May 1918 |
| Citation | 251 F. 673 |
| Parties | BUDRIS v. CONSOLIDATION COAL CO. (four cases). BUDRIS et al. v. SAME. |
| Court | U.S. District Court — Eastern District of New York |
Baltrus S. Yankaus, of New York City, for plaintiffs.
Davies Auerbach & Cornell, of New York City (Julien T. Davies and Martin A. Schenck, both of New York City, of counsel), for defendant.
Motions have been made in the five above-named actions for judgment on behalf of the plaintiff, with costs, and for the impaneling of a jury to assess damages, upon the following grounds:
It is alleged that the defendant served a plea to the jurisdiction of the court, alleging that the suit was improperly brought in this the Eastern district of New York; that such plea was signed by the defendant's attorneys, without specifying a special appearance; that the defendant failed to deny the allegations of the complaint, outside of the paragraphs relating to the residence of the parties, and that the defendant has its main and general office in the state of New York, at 14 Wall street, New York City, while its coal mines are located in Kentucky, Pennsylvania, and West Virginia that the cause of action arose in Kentucky; that the statute of limitations has run against the bringing of this action in the state of Kentucky; and that the defendant has a person designated upon whom service can be made in the state of New York, and has therefore filed its certificate and obtained authority to do business in this state. It also appears from the record that the defendant was organized under the Laws of the State of Maryland.
The defendant has made a motion in each case, asking that the action be dismissed upon a special appearance, in which the defendant denies that the plaintiff was or is a resident of the state of New York and the Eastern district; alleges that the defendant is not and was not a domestic corporation of the state of New York, but is a resident of the state of Maryland; denies that the defendant owns or owned property within the Eastern district of New York, and that it has any office for the transaction of business within the Eastern district; and demands judgment dismissing the complaint, with costs, for the reason that the court has no jurisdiction, and for the reason that suit has been improperly brought in the Eastern district of New York.
The five actions are as follows: Action No. 1, by Alexander Budris, for assault by the defendant's servants resulting in the physical injury of the plaintiff, at Van Lear, Ky., on the 19th of July, 1916. Action No. 2, by Alexander Budris, for wrongful entry and ejection of plaintiff, accompanied by assault and unlawful imprisonment, in breach of covenant of lease; the entry and assault being alleged to have occurred on September 9, 1914, at Van Lear, Ky. Action No. 3, by Alexander Budris, who alleges that on the 4th of August, 1914, he was ejected from a train and beaten by the servants of the defendant, contrary to the contract of carriage entered into by the plaintiff as a passenger upon a train of the Miller's Creek Railroad Company, near Van Lear, Ky., which railroad train was operated by the defendant. Action No. 4, by Saloma Budris, wife of Alexander Budris, for unlawful entry and ejectment by force, by the defendant's servants, on the 9th day of September, 1914, from the premises at Van Lear, Ky., which had been leased to the said Saloma Budris and her husband. Action No. 5, by Alexander Budris and Saloma Budris, for breach of contract through failure to carry out the terms of the lease of premises at Van Lear, Ky., of which the plaintiff took possession on the 31st day of May, 1914, and from which, after the various alleged breaches of lease, the plaintiffs allege they were unlawfully ejected on the 14th of September, 1914.
The defendant has in each case pleaded in bar, alleging lack of jurisdiction, while stating that it does not appear generally and appears specially for that purpose. These pleas were filed upon the 16th of September, 1916, and on the 7th of February, 1918, notice was served that the special plea would be brought on for hearing, and that a motion would be made to dismiss the complaint for lack of jurisdiction, on the 13th of February, 1918. This notice was signed, as was the plea, by Davies, Auerbach & Cornell, as attorneys for the defendant, without any further statement that they appeared specially.
The plaintiffs' motions for judgment were noticed for the same date, viz., the 13th of February, 1918, and the matter came on for hearing, by adjournment,...
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