Jacobus v. Colgate

Citation217 N.Y. 235,111 N.E. 837
PartiesJACOBUS v. COLGATE.
Decision Date22 February 1916
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Clement & Jacobus against William H. Colgate From a judgment of the Appellate Division of the Supreme Court (165 App. Div. 227, 150 N.Y. Supp. 1056) affirming an interlocutory judgment overruling a demurrer to the complaint, the defendant appeals. Reversed, and remanded, with leave to amend.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court for the Second Department affirming an interlocutory judgment of the Special Term of the Supreme Court which overruled a demurrer to the complaint. The Appellate Division certified the following questions:

(1) Has the Supreme Court jurisdiction of the subject of in an action commenced on January 5, 1914, and brought to recover damages for injuries to real property located in another state, which said injuries were incurred on August 13, 1882, notwithstanding that seasonable objection in raised thereto? 71

(2) Does section 982a of the Code of Civil Procedure confer jurisdiction upon the Supreme Court of the subject of an action brought by a resident of the state of New York on January 5, 1914, for injuries to real property located in another state, which said injuries were incurred on August 13, 1882?

(3) Did the Legislature of the state of New York intend section 982a of the Code of Civil Procedure to apply to actions commenced after such section became operative irrespective of the time when the cause of action arose?

(4) Does it appear upon the face of the complaint herein that the Supreme Court had jurisdiction of the subject of the action?

(5) Does it appear upon the face of the complaint herein that the same states facts sufficient to constitute a cause of action?

(6) Does it appear upon the face of the complaint herein that two causes of action have been improperly united, viz., a cause of action for injury to real property with a cause of action for injury to personal property?

(7) Does it appear upon the face of the complaint herein that two causes of action have been improperly united, which require different places of trial?

(8) If it appears upon the face of the complaint herein that two causes of action have been set forth has the Supreme Court jurisdiction of the subject of both of them?

Theodore F. Humphrey, New York City, for appellant.

Albert Aston, New York City, for respondent.

CARDOZO, J.

[1] This case comes here on a demurrer to a complaint. The plaintiff's assignors were the owners of a milling plant in Kansas. More than 33 years ago, in August, 1882, the defendant, according to the averments of the complaint, “willfully and wantonly” set fire to the plant and destroyed the mill and its contents. In December, 1913, the owners of the plant assigned their cause of action to the plaintiff, who is a resident of this state. In January, 1914, the summons was served.

The first question to be determined is whether the courts of New York have jurisdiction of the action. For the moment we lay aside the allegations of injury to the contents of the mill and view the action as one for injuries to the building only. There is no doubt that until 1913 our courts had no jurisdiction of actions for injuries to real property lying without the state. Brisbane v. Penn. R.R. Co., 205 N.Y. 431, 98 N.E. 752, 44 L.R.A. (N.S.) 274, Ann. Cas.1913E, 593. Nothing inconsistent with that view was held in Sentenis v. Ladew, 140 N.Y. 463, 35 N.E. 650, 37 Am. St. Rep. 569. All that was there determined was the power, where other jurisdiction fails, to award judgment for the costs. Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594. In 1913, however, the Code of Civil Procedure was amended by adding the following provision (section 982a):

“An action may be maintained in the courts of this state to recover damages for injuries to real estate situated without the state, or for breach of contracts or of covenants relating thereto, whenever such an action could be maintained in relation to personal property without the state.”

The trespass complained of here occurred in 1882. We must therefore say whether the statute has any application to wrongs committed before its passage.

The general rule is that statutes are to be construed as prospective only. 27 Halsbury's Laws of England, p. 159. It takes a clear expression of the legislative purpose to justify a retroactive application. Isola v. Weber, 147 N.Y. 829, 41 N.E. 704; O'Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406, 412, 34 N.Y. Supp. 358;Matter of Protestant Episcopal Pub. School, 58 Barb. 161;United States v. Heth, 3 Cranch, 399, 413, 2 L.Ed. 479. Changes of procedure-i.e., of the form of remedies-are said to constitute an exception (Lazarus v. Met. E.R. Co., 145 N.Y. 581, 40 N.E. 240;Laird v. Carton, 196 N.Y. 169, 89 N.E. 822, 25 L.R.A. [N.S.] 189), but that exception does not reach a case where before the statute there was no remedy whatever (Kelley v. B. & M.R.R. Co., 135 Mass. 448;Reinhardt v. Fritzsche, 69 Hun, 565, 23 N.Y. Supp. 958;Shipman v. Treadwell, 208 N.Y. 404, 415, 102 N.E. 634;Germania Savings Bank v. Village of Suspension Bridge, 159 N.Y. 862, 54 N.E. 33). To supply a remedy where previously there was none of any kind is to create a right of action. We need not dwell upon the question whether before this amendment of the Code, a trespass on foreign lands was recognized by our law for any purpose as constituting a wrong. Dicey, Conflict of Laws (2d Ed.) pp. 31, 32. If we recognized it as a wrong, we gave no redress for it. If the injured owner had suffered an impairment of his right, he had none the less no right of action. He may have had one under the laws of some other state or country. He had none under our laws. His cause of action till then was local, and limited by the boundaries of the state where the wrong was done. It has now become transitory, giving rise to “an obligatio, which like other obligations follows the person, and may be enforced whereever the person may be found.” Slater v. Mex. Nat. R.R. Co., 194 U.S. 120, 126, 24 Sup.Ct. 581, 48 L.Ed. 900. When the cause of action was local, it was not in this jurisdiction a cause of action at all. It became a cause of action by force of the statute which made it transitory.

A ‘cause of action’ is the right to prosecute an action with effect.” Patterson v. Patterson, 59 N.Y. 574, 578, 17 Am. Rep. 384;People ex rel. Pells v. Supervisors of Ulster Co., 65 N.Y. 300, 308. “It is not possible for one at the same time to have a cause of action, and not to have the right to sue.” Walters v. City of Ottawa, 240 Ill. 259, 263, 88 N.E. 651, 653.

We are reminded by Holland (Jurisprudence [11th Ed.] p. 318) of the definition of the Institutes (Lib.IV, tit.VI):

“Actio autem nihil aliud est quam jus persequendi judicio quod aibi debetur.”

In any community which has developed beyond the stage of self-help, a violated right gives rise to a right of action. Holland, supra. The primary or antecedent right may be distinguished in analysis from the right of action for its infringement, but the normal exercise of the state's power is through the agency of the courts, and hence a right which, when violated, does not create a right of action, is shorn of most of the incidents that make a legal right of value. Holland (11th Ed.) p. 318; 1 Cooley on Torts, p. 20. For this reason it is that statutes which take away every remedy for past wrongs, as distinguished from statutes which merely change the remedy, are condemned as unconstitutional. Parmenter v. State of N. Y., 135 N.Y. 154, 166, 31 N.E. 1035;Gilbert v. Ackerman, 159 N.Y. 118, 53 N.E. 753, 45 L.R.A. 118; Soper v. Lawrence Bros. Co., 201 U.S. 359, 370, 26 Sup.Ct. 473, 50 L.Ed. 788;Mulvey v. Boston, 197 Mass. 178, 83 N.E. 402, 14 Ann. Cas. 349. The destruction of every remedy destroys the cause of action. By parity of reasoning the grant of a remedy where none of any kind was available is equivalent, in substance, to the creation of a cause of action. We do not say that statutes of the latter class are unconstitutional because retroactive. To discuss the limits of constitutional power in that regard would lead us far afield. What we emphasize now is the distinction between statutes which merely change the procedure for the enforcement of a right and statutes which supply a remedy by which a right for the first time becomes enforceable.

This distinction was recognized by the House of Lords in a leading case in which the jurisdiction of the English courts in actions for trespass on foreign lands was considered with the amplest learning. In British South Africa Co. v. Companhia de Mocambique, [1893] L.R.A.C. 602, the question to be determined was the effect of rules of court adopted under the Judicature Acts of 1873, which abolished the technical rule of local venue. The holding was that the abrogation of that rule did not enlarge the jurisdiction in respect of injuries to foreign lands. The rule of local venue, it was held, was a rule of procedure. It determined the county or section of the realm in which the suitor must proceed. It assumed that Jurisdiction was present, but defined the manner of its exercise. On the other hand, the rule that, where the matter was local and arose outside the realm, there was no remedy in the courts of England, was held to be in the fullest sense a rule of Jurisdiction. The House of Lords held that the Judicature Acts were not intended to confer upon the owners of foreign lands “a right of action in this country which they would not otherwise have possessed.” Lord Herschell pointed out in his opinion that “a person whose lands situate in this country were trespassed upon always had a right of action in respect of the trespass,” and then he added in words precisely applicable here:

“But in respect of a trespass to lands situated abroad there was no right of action, for...

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1 books & journal articles
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