#### Charles Mallory and Others, as Executors, etc., of Kate Mallory Thayer, Deceased, Respondents, *v.*Virginia Hot Springs Company, Appellant.

Second Department,

May 9, 1913.

Corporation—negligence—action by executors against foreign corporation for death of testator — residence of plaintiff.

In an action by three executors, two being at the time of the commencement thereof residents of this State and the third a resident of Connecticut, brought under a statute of Virginia similar to the provisions of our statute to recover for the death of their testator, a resident of this State, caused in the State of Virginia by the negligence of the defendant, a corporation of that State, the summons should not be set aside and the action dismissed, upon the ground that one of the plaintiffs is a non-resident.

Thomas, J., dissented, with opinion.

Appeal by the defendant, the Virginia Hot Springs Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of February, 1913.

*Fay Ingalls,*for the appellant.

*Knowlton Durham,*for the respondents.

Stapleton, J.:

The appeal is from an order denying a motion to set aside the service of the summons and for a dismissal of the action.

The following facts must be assumed in the determination of this motion: The testator of the plaintiffs was a resident of this State at the time of her death. Her death was caused in the State of Virginia by the neglect of a corporation created by and doing business under the laws of that State. There is in Virginia a statute (Virginia Code, §§ 2902-2906) similar in its provisions to the one in this State (Code Civ. Proc. §§ 1902-1905), which gives to an executor of a decedent, whose death was thus caused, an action to recover damages for the benefit of the husband or next of kin of the decedent as compensation for the pecuniary injuries resulting to him or them. The time within which *254the action may be brought under the Virginia statute is twelve months. Letters testamentary were issued to the three plaintiffs upon the probate of the decedent’s will. Two of the plaintiffs were, at the time of the commencement of the action, residents of the State of Hew York, and one was a resident of the State of Connecticut.

The following propositions must be accepted: There was no pleading served, and the application is upon affidavits. The jurisdiction of the person of the defendant was acquired by service of the summons within the State upon its president. *(Grant*v. *Cananea Consolidated Copper Co.,*189 N. Y. 241; *Sadler*v. *Boston & Bolivia Rubber Co.,*140 App. Div. 367; affd., 202 N. Y. 547.) If all the plaintiffs were residents of this State the action would unquestionably be maintainable. *(Wooden*v. *W. N. Y. & P. R. R. Co.,*126 N. Y. 10; *Johnson*v. *Phoenix Bridge Co.,*197 id. 316.)

The only assertion of the defendant which requires discussion is that because one of the three executors is a non-resident of this State the action may not be maintained against it, a foreign corporation, as the action is not one enumerated in subdivisions 1, 2 and 3 of section 1780 of the Code of Civil Procedure, which section reads:

> “An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only:

> “1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to property situated within the State, at the time of the making thereof.

> “ 2. Where it is brought to recover real property situated within the State, or a chattel, which is replevied within the State.

> “3. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State. ”*

*255We are compelled to acknowledge that in a case brought in the Superior Court of the city of Hew York, where it appeared the cause of action arose in a foreign country, the intestate was a non-resident of this State at the time of his death, his sole administrator, appointed by the courts of this State, was a nonresident at the time of the commencement of the action, and the defendant was a foreign corporation, it has been held that a motion made to vacate the summons and dismiss the complaint should have been granted on the ground that the court did not have jurisdiction of the action, *i. e.,*of the subject-matter thereof. *(Robinson*v. *Oceanic Steam Navigation Co.,*112 N. Y. 315.) Ho question seems to have been raised as to the propriety of the motion.

We do not believe the scope of that decision should be extended to exclude the representatives of a decedent who was a resident of this State at the time of her death, two of said representatives being residents here at the time of the commencement of the action, from pursuing a remedy for the benefit of her husband or next of kin.

The obvious object of this motion is to destroy plaintiffs’ cause of action, through the operation of the short limitation in the Virginia statute. We should not be hospitable to that project.

There is no reason why the jurisdiction should not attach to the subject-matter of the action because of the residence in the State of some of the executors, nor why the non-residence of one should be the determining factor in the decision of the question.

A contemplation of the plaintiffs’ situation will test the justice of the defendant’s position. The executors had a duty to bring an action. (Code Civ. Proc. §§ 1902-1905; *Wooden*v. *W. N. Y. & P. R. R. Co., supra.)*They could not go to Virginia to sue because the common-law rule, of which we must take cognizance, is that they could not maintain an action in a jurisdiction in which they were foreign executors. *(Johnson*v. *Wallis,*112 N. Y. 230, 232; *Hopper*v. *Hopper,*125 id. 400.) They were required to sue jointly *(Bodle*v. *Hulse,*5 Wend. 313), although had they been sued they would be by statute considered as one person. (Code Civ. Proc. § 1811.)

*256Under our statute law the non-resident plaintiff may, before the trial, have his letters testamentary revoked and be discharged as executor upon his application (Code Civ. Proc. §§ 2689, 2690) and the courts would have the power to strike out his name as a party plaintiff *( Gittleman*v. *Feltman,*191 N. Y. 205), and thus save the cause of action should this be necessary to establish jurisdiction of the subject-matter. In those respects the case is clearly distinguishable from *Brooks*v. *Mexican Construction Co.*(49 N. Y. Super. Ct. 234; 50 id. 281).

To sustain the order from which the appeal is taken it is sufficient to decide that in the light of the duties, obligations and rights of these parties and the powers of this court, the question as to the jurisdiction of the court over the subject-matter does not arise, and should not be settled upon a motion to set aside the service of the summons, and that the proper mode of raising that question is by demurrer or by answer. *(Atlantic & Pacific Telegraph Co.*v. *B. & O. R. R. Co.,*87 N. Y. 355; *Ubart*v. *Baltimore & Ohio R. R. Co.,*117 App. Div. 831; *Manning, Maxwell & Moore, Inc., v. Canadian Locomotive Co., Ltd.,*120 id. 735.) We prefer, however, to determine that this court has jurisdiction of this action because of the facts that at the time of her death the decedent was a resident of this State, and that at the time of the commencement of this action two of the plaintiffs were also residents hereof. It is inconceivable that a cause of action which would otherwise accrue to the representatives of a testatrix, a resident of this State at the time of her death, could be destroyed by the simple circumstance that one of the joint executors nominated by her in her will was a non-resident.

We think there should be an affirmance of the order, with ten dollars costs and disbursements.

Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., read for reversal.

*

 Since amd. by Laws of 1913, chap. 60; in effect September 1, 1913.— [Rep.

Thomas, J. (dissenting):

The appellant moved to set aside the summons and to dismiss the action upon the ground that one of the three plaintiffs is a resident of Connecticut and the defendant a foreign corporation, wherefore the plaintiffs could not sue defendant in this State *257upon a cause of action arising in Virginia, under section 1780 of the Code of Civil Procedure, and in any case jurisdiction of the defendant could not be acquired. The defendant’s president and vice-president, some of its directors and one of its agents reside in the State of New York, and through them the defendant was doing business in this State when the summons was served on its president, even to holding here at times meetings of its directors. The service is valid. *(Grant*v. *Cananea Consolidated Copper Co.,*189 N. Y. 241; *Sadler*v. *Boston & Bolivia Rubber Co.,*140 App. Div. 367; affd., 202 N. Y. 547.) But can the three executors, one of whom is a nonresident, maintain this action against the non-resident ? The action is to recover damages for the death of a woman who was killed in the State of Virginia by the wrongful act of the defendant, and by the statute of that State the action may be brought by the personal representatives for the benefit of the persons entitled within twelve months after the death, which period expired November 26, 1912. The decedent was a resident of the State of New York, where her will was probated and letters thereon issued to the three plaintiffs. What does the statute (Code Civ. Proc. § 1780) mean? “An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be mait> tained by another foreign corporation, or by a non-resident, in one of the following cases only.” No one of the cases named covers the case at bar. Hence, unless the plaintiffs are “resident of the State ” the action cannot be maintained. The defendant removed this action to the Federal court in this district, and the plaintiffs caused it to be remanded upon the ground that one of the executors “is a citizen and resident of the State of Connecticut,” and that the others “are citizens and residents of the State of New York,” and it was remanded accordingly. While all the parties plaintiff lived in States other than that of the defendant’s residence, all the plaintiffs did not live in the eastern district of New York, and the defendant did not live there. But the plaintiffs must be residents of that district to enable the action to be tried there. *258The plaintiffs now argue that they are residents within the meaning of section *1780.*The cause of action resided in part in a non-resident of the State while the action was in the Federal court. It does not cease to he so when the action comes back to the State court. If A and B of Hew York and C of Connecticut own a horse killed in the latter State by D living therein it could not be well urged, I assume,- that the three persons could as plaintiffs recover' the damages in an action in the State of Hew York. It was decided in *Brooks*v. *Mexican Construction Co.*(49 N. Y. Super. Ct. 234; on reargument, 50 id. 281) that sixteen joint owners of a vessel, of whom eleven were non-residents, could not maintain an action against a non-resident for negligently injuring her in collision. If the law be otherwise, then may one resident recover the damages for all others non-resident, against a non-resident wrongdoing in a foreign State. It is not a question whether a resident owner of an individual interest may so sue here. The present cause of action runs to all the plaintiffs jointly. There is no several interest; hence, there can be no severance of the parties in interest. While it seems desirable that executors of one who at her death was a resident of this State, confirmed by a court of this State, should be competent to sue in its courts for the purposes of such administration, yet I do not perceive by what ingenuity of argument the language of the statute can be construed to permit it.

The order should be reversed, with ten dollars costs and disbursements, and the motion to set aside the summons be granted, with ten dollars costs.

Order affirmed, with ten dollars costs and disbursements.