#### Solomon Brooks *et*al., Respondents, *against*William B. Dinsmore, Appellant.

(Decided December 30th, 1889.)

Under section 1289 of the New York City Consolidation Act, relating to the district courts, and providing that “ an action or proceeding of which these courts have jurisdiction must be brought in a court held in the district in which either plaintiff or defendant or one of the plaintiffs or one of the defendants resides,” an action brought against an association in the name of its president must be brought in the district in which either the plaintiff or such president resides.

An objection to the jurisdiction in an action in the district court, on the ground of non-residence in the district, may be taken on the second trial, where the fact then appears for the first time.

Appeal from a judgment of the District Court in the City of New York for the Third Judicial District.

The facts are stated in the opinion. .

*Seward, DaCosta,*Guthrie, for appellant.

*Dewitt C. Morrell,*for respondents.

Per Curiam.

[Present, Van Hoesen and Bookstaver, JJ.]—The sole question raised on this appeal is whether the court below,had jurisdiction of the parties to the action.

The plaintiffs commenced their action against William B. Dinsmore as president of the Adams Express Company. During the pendency of the action Mr. Dinsmore died, and Mr. John Hoey has been substituted in his place as president of the company. It appears from the evidence that neither the plaintiffs nor Mr. Dinsmore nor Mr. Hoey resided in the Third Judicial District when the action was commenced, or now reside there.

*429The Consolidation Act of the City of New York, section 1289, provides that “ an action or proceeding of which these courts have jurisdiction must be brought in a court held in the district in which either .the plaintiff or defendant, or one of the plaintiffs or one of the defendants, resides.” And section 1382 provides: “Judgment that the action be dismissed with costs, without prejudice to a new action, shall be rendered in the following cases: . . . 3. When it is objected at the trial and appears by the evidence that the action is brought in the wrong district.” The question therefore is, who is the “ party ” defendant, the president or the company ? And this has been repeatedly decided to be the president. *Woods*v. *DeFiganiere*(1 Robt. 60), is directly upou the point. This was followed in *McGuffin*v. *Dinsmore*as president, etc. (4 Abb. N. Cas. 241), in which case, in delivering his opinion, Sanford, J., says : “ The conclusions at which I have arrived after a careful examination of the papers submitted, are (1) that William B. Dinsmore is the only party defendant in this action, notwithstanding that he is sued in his representative capacity as president of an association consisting of numerous individuals.” And in *Whitman*v. *Hubbell*as treasurer, etc. (30 Fed. Rep’r 81), Judge Wheeler expresses the same views, and holds that the Adams Express Company is a partnership and not a corporation. See, also, *Bacon*v. *Dinsmore*as president, etc. (42 How. Pr. 368). If a partnership, why then of course the action must be brought in the district where either the plaintiff or the partners, or at least one of them, resides.

In *Westcott*v. *Fargo*(61 N. Y. 542), on which the respondent relies, there was an intimation that such associations might, for the purposes of suing or being sued, be regarded as a ¡corporation sole. A corporation sole, as we understand it, consists of only one person to whom and his successors belongs that legal perpetuity the enjoyment of which is denied to all natural persons (1 Bouv. Law Dict. p. 319). Such corporations cannot take personal property in succession *(Terrett*v. Taylor, 9 Cranch 43) ; and we do not think that Adams Express Company can in any sense fall within *430the definition of such a corporation. In speaking of the decision in *Westcott v. Fargo*(above cited), Judge Barrett, in *People ex rel. Winchester*v. *Coleman*(24 N. Y. St. Rep’r 970 ; 5 N. Y. Supp. 394), says : “ The ponclusion that the president was, for the purpose of bringing the action here, a corporation sole, does not seem to be necessary to the decision,” with which view we coincide. The fact is, these associations are nothing more than copartnerships, but as such copartnerships consist'of many members, chapter 254, Laws 1849, was enacted to facilitate the bringing or maintaining of actions without the -necessity of serving all the copartners.

-We think the Third Judicial. District Court had no jurisdiction to entertain the action. We also think that the objection to the jurisdiction was taken in time, although first presented upon the second trial, for then the fact of want of jurisdiction first appeared *(Pean*v. *Gannon,*1 Daly 34; *Wallace*v. *Per dell,*105 N. Y. 7). We are therefore constrained to reverse the judgment, with costs.

The question involved in this appeal, so far as we are informed, has never been passed upon by the Court of Appeals, and in view of the many cases arising under chapter 254, Laws 1849, and amendments thereof, we deem it important that the question be finally settled. Leave is therefore given to the respondents to appeal to the Court of Appeals, if they are so advised.

Judgment reversed, with costs.