Murnan v. Wabash Ry. Co.

• Decision Date: 18 October 1927
• Citation: 158 N.E. 508,246 N.Y. 244
• Parties: MURNAN v. WABASH RY. CO.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 244

158 N.E. 508

MURNAN

v.WABASH RY. CO.

Court of Appeals of New York.

Oct. 18, 1927.

Action by James H. Murnan against the Wabash Railroad Company. On appeal from an order granting defendant's motion to vacate the service of summons and complaint and dismissing the action, the Appellate Division reversed such order as matter of law (220 App. Div. 218, 221 N. Y. S. 332), and the defendant appeals, and the Appellate Division certifies questions.

Order of Appellate Division reversed, and case remitted to that court, and questions answered.

Appeal from Supreme Court, Appellate Division, Second department.

H. Brua Campbell and Winslow S. Pierce, both of New York City, N. S. Brown, of St. Louis, Mo., and F. C. Nicodemus, Jr., of New York City, for appellant.

Charles D. Lewis and John Ambrose Goodwin, both of White Plains, Leonard F. Fish and Thomas J. O'Neill, both of New York City, for respondent.

POUND, J.

This action is brought under the federal Employers' Liability Act (45 USCA §§ 51–59 [U. S. Comp. St. §§ 8657–8665]) to recover $50,000 damages for personal injuries alleged to have been sustained by plaintiff on February 28, 1926, while in the defendant's employ at the defendant's Oakwood yard at Detroit, Mich., as the result of being thrown from the top of a caboose which collided with a locomotive. The defendant is an Indiana corporation. It maintains an office in this state for the conduct of its financial business and also for the purpose of soliciting freight and passenger business, and is to that extent doing business in this state. Plaintiff is a resident of Waterbury, Conn.

Defendant moved to vacate the service of the summons and complaint and to dismiss the action on the ground that, the cause of action having accrued wholly without the state of New York, the jurisdiction of the Supreme Court, by reason of the nonresidence of the parties hereto, is wholly discretionary, and that the court should, in the exercise of such discretion, decline to retain jurisdiction thereof. The motion was granted on this ground.

The Appellate Division reversed, denied the motion, and certified the following questions to this court:

‘(1) Are the courts of this state invested with any discretion to decline jurisdiction of an action brought under the federal Employers' Liability Act by a nonresident of the state of New York against a foreign railroad corporation, doing business in the state of New York at the time of the commencement of the action?

‘(2) Should the motion of the defendant railway company for an order vacating the service of the summons and complaint herein and dismissing the action have been granted as a matter of law?’

Section 47 of the General Corporation Law (Consol. Laws, c. 23) provides:

‘An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only: * * * 4. Where a foreign corporation is doing business within this state.’

Although the rule prohibits a court of general jurisdiction from refusing to exercise its jurisdiction in its discretion, it has often been held that the courts of this state may refuse in their discretion to entertain jurisdictionover causes of action arising out of a tort committed in a sister state where both the plaintiff and defendant are nonresidents. Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152, 160, 139 N. E. 223, 32 A. L. R. 1, and cases cited. While no controlling reason compelled, the Special Term refused to assume jurisdiction. It refused, it would seem, for reasons of convenience, to hear the case and vacated the service of the summons under the authorities referred to.

The Appellate Division held that the federal Employers' Liability Act which conferred, or recognized, concurrent jurisdiction in the state courts, made it mandatory upon the state court not to refuse to exercise its jurisdiction, when it had such jurisdiction, in any case brought under the act. It relied on the case of Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. The case is authority for the bare proposition that, where the state courts would exercise their jurisdiction except for the fact that the action is brought under the act of Congress, they may not refuse to exercise jurisdiction because the action is brought under the laws of the United States. The court said:

‘The existence of the jurisdiction creates an implication of duty to exercise it. * * * We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.’ Page 58 (32 S. Ct. 178).

This general language read in connection with what was actually decided means nothing more than that the state courts must make no hostile discrimination against litigants who come within the act in question; that ...