#### John Hyde, as Liquidator, Etc., of the Great Northern Construction Company, Etc., Plaintiff, *v.*J. G. Scott, Defendant.

(Supreme Court, New York Special Term,

February, 1912.)

Jurisdiction —■ Domicile of party or location of subject-matter as affecting jurisdiction — Nonresidents — Foreign corporations — Witnesses — Jurisdiction of particular courts.

Witnesses — Disqualification by reason of confidential relation — Privilege on commission issued from foreign country.

A proceeding in a Canadian court under a statute providing for the winding up of trading, companies doing business in Canada, “wheresoever incorporated,” to wind up the affairs of a West Virginia corporation so far as they are within the jurisdiction and to appoint a liquidator, is within said statute.

The adjudication of a foreign court as to its jurisdiction is not conclusive upon a court of another jurisdiction and unless the foreign court had jurisdiction both of the person and subject-matter its judgment, in whatever form expressed, is a nullity.

Where property of the West Virginia corporation to be affected by said proceeding was within the territorial jurisdiction of the Canadian court, service of process by publication is sufficient to give jurisdiction of the corporation.

That said corporation owed its existence to the laws of its domicile did not preclude it from owning property in the Dominion of Canada but its right to do and the conditions upon which its business therein might be done were subject to the laws of that jurisdiction.

That said *corporation made*a contract to build a railroad in Canada and had an office therein, since withdrawn, and left unpaid obligations, constitutes “ doing business ” within the meaning of the Canadian statutes.

The decisions of the courts of Canada in regard to the interpretation of their own statutes will be accepted here as final.

*488The Canadian' courts having in the proceeding against the West Virginia corporation the right to appoint a liquidator and to hear and determine- an action commenced by liim against a stockholder to recover certain bonds alleged to have been wrongfully distributed' among the shareholders have the right to issue a commission to take, in the State of New York, the testimony of a resident therein but not a party, to the action; and, while comity does not require the courts of the State, of New York to enforce a subpama in aid of such a commission, where the rights of the witness as a citizen would be prejudiced or, violated, he may be compelled to obey the subpoena where it is not clear that his-rights will be violated thereby.

This court on motion to direct the witness to answer certain interrogatories- under a subpoena issued pursuant to section 915 of the Code of Civil Procedure in aid of the foreign commission will not pass on the merits of the action brought by the liquidator.

Where a decision of the courts of the State of New York construing the statutes under which the proceeding against the West Virginia corporation was instituted is in direct conflict with a later decision of the courts of Canada on the same question, the court, on a motion to direct the witness to answer interrogatories in the foreign commission and on motion to vacate the subpoena issued in aid thereof, is bound by the Canadian decision.

Motion to -direct a witness t,o answer certain interrogatories under a subpoena issued under section 915 of the Code of Civil Procedure and a motion to1 vacate the subpoena.

Kiddle & Wendell, for motion of petitioners.

Robinson, Allen *&*Hoy, for witness McNaught and others, opposed.

Seabuby, J.

Two motions are now before the court. • One motion is made to compel *J*ames McNaught to answer certain interrogatories under a subpoena, and the other motion is made by McNaught to vacate the subpoena. The Great Northern Construction Company, on March *22,*1899, entered into a contract with the Great Northern railway of Canada to construct and equip a portion of the line of the railway company in- the Provinces of Ontario and Quebec, and at the same time entered into a contract with á copart*489nership doing business under the name of ¡Ross, Barry & McRae, under which contract the copartnership agreed to perform all the work of constructing the road pursuant to the contract between the Great Northern Construction Company and the railway, company. A further contract between the Great Northern Construction Company and Ross, Barry & McRae was' entered into on October 22, 1911. On October 16, 1903, Ross, Barry & McRae instituted a suit in the Superior Court of Lower Canada, Province of Quebec, District of Montreal, against the Great Northern Construction Company to recover certain moneys alleged to be due to them under their contracts. During the pendency of that action, Ross, Barry & McRae, on October 17, 1904, filed a petition in the Superior Court of "Lower Canada, Province of Quebec, District of Montreal, to wind up and dissolve the Great Northern Construction Company under the Canadian Winding-Up Act. In that proceeding the officers of the Great Northern Construction Company were served by publication. In that liquidation proceeding and under the act referred to a winding-up order was made appointing John Hyde liquidator of the Great Northern Construction Company. This order acted as a stay of the action of Ross, Barry & McRae against the Great Northern Construction Company. The action in which the present motions are made was brought by John Hyde in his quality of liquidator of the Great Northern Construction Company under the order of the Canadian court as aforesaid against the defendant Scott, who is alleged to be a stockholder of the Great Northern Construction Company, *to*recover certain bonds alleged to have been unlawfully distributed among the shareholders of said company in order that they may be applied in satisfaction of the claims of Ross,- Barry & McRae against said company. A commission upon closed interrogatories was issued in this action to certain commissioners named therein and within this. jurisdiction. • It was to obtain the testimony of McNaught before these commissioners that the present subpoena was issued. McNaught was sworn as a witness under the subpoena and refused to answer the interrogatories pro*490pounded to him and refused to producé the books and papers of the Great Northern Construction Company. The disposition of the motion to direct McN aught to answer and to punish him for contempt for his refusal so to do must follow the determination of the motion of McNaught to vacate the subpoena. Several questions of importance are raised by this motion and several grounds upon which it is claimed .the subpoena should have been vacated are urged. These grounds it is now necessary to consider. *First.*It 'is urged “ that the Canadian court had no jurisdiction in law or in fact to wind up-the Great Northern Construction Company, a West Virginia corporation, in liquidation proceedings, and its orcle? appointing Hyde liquidator is a nullity.” At the outset it should be appreciated that the liquidation proceeding in Canada does not attempt to dissolve or to liquidate the Great Northern Construction Company. The purpose of that proceeding is merely to wind up thé affairs'of that company in so far as they are within the Canadian jurisdiction. No extra-territorial effect is claimed,- so far'as the corporate existence, assets or property of the Great Northern Construction Company is concerned. The liquidation proceeding, is brought under section 3 of chapter 129 of the Revised Statutes of Canada. This section was enacted in 1886, and specifies the incorporated trading companies to which the act applies, and provides that it shall be applicable to such companies “ doing business in Canada, wheresoever incorporated.” The clause providing that the act shall apply to companies doing business in Canada *wheresoever incorporated*was an amendment added to section 3 of the Winding-Hp Act by 52 Viet., chapter 32. That there is no conflict between the original act and the statute amendatory thereto has been squarely held in Ontario Forge. & Belt Co., Lim., 25 Ontario Rep. 407, where the court said: “ There is no clashing between section 3 of the Winding-Hp Act, R. S. C., chapter 129, and section 3 of the Winding-Hp Amended Act, 52 Viet., chapter 32; the. latter act provides for the voluntary winding up of companies falling within its provisions, and not for their compulsory liquidation, which is provided for by the former. A company *491incorporated under the Act of Province of Ontario and carrying on business' in Ontario is £ doing business in Canada ’ Within the meaning of .section 3 of the original act.” The right of Hyde as liquidator to maintain this action in which this commission was issued was upheld in the Superior Court of Lower Canada and by the Court of King’s Bench of Montreal. ■ See opinions submitted on this motion. That court also passed upon the question of the jurisdiction of the Canadian court to appoint the liquidator, and the right of the liquidator to institute this action. It is true that the adjudication of a foreign court upon the question of its jurisdiction is never conclusive upon a court of another jurisdiction. Unless the foreign court in fact had jurisdiction of the person and subject-matter its judgment in whatever form it may be expressed is a nullity. It is, therefore, necessary for us to determine, apart from the adjudication of the Canadian courts, as to the fact of jurisdiction. I think there can be no doubt of the jurisdiction of the Canadian courts of the subject-matter. As pointed out above, the liquidation proceeding contemplates reaching only such property of the West Virginia corporation as is within the jurisdiction of the Canadian courts. The property to be affected being within the territorial jurisdiction of the court, jurisdiction of the person may be obtained by service by publication. The fact that the Great Northern Construction Company owes its existence to the State of West Virginia and was incorporated under the laws of that State does not preclude it from owning property in other jurisdictions. It is equally clear that its right to do business in a * foreign State and the conditions upon which it may do busi- ’ ness in such a foreign jurisdiction are subject to the laws of that jurisdiction. The Canadian courts do not assume to forfeit the corporate life of the Great Northern Construction Company. They merely assume to subject its property within their jurisdiction to the law of that jurisdiction. That such a regulation is within its right, cannot be questioned. The claim that the Great Northern Construction Company had no property in Canada and was not “ doing business ” there is not supported by the proof. It appears from the *492papers presented upon this motion that the property, in the form of bonds which are sought to be reached in this action,' is in the possession of the defendant, who is a resident of Canada; It also appears that the Great Northern Construe-, tion Company made a contract to built a railroad in Canada and *had*a place of business in Canada, and that although they have since withdrawn their office from that jurisdiction they-left unpaid obligations behind them. These acts constitute “ doing business ” within the meaning of the Canadian statutes. While we may not accept as conclusive the determination of the Canadian courts as to the fact of jurisdiction, we may well accept as final the determination of those courts as to the interpretation and construction of their own statutes. The Canadian courts have held that the acts referred to constitute “ doing business ” within the meaning of the Winding-Up Act*. I think that the same rule should be applied to the claim of McNaught, that the notice required by section 20 of the Winding-Up Act was not given to the Great Northern Construction Company. The Canadian bourts have held that? the notice, which was served by publication, was a sufficientJ compliance with the provisions of that act. See opinions,! submitted .on the motion. Upon the papers before me I feel constrained to hold that the Canadian courts had jurisdiction to appoint the liquidator of the property of the Great Northern Construction Company within their jurisdiction, and that the liquidator as such had the right under the Canadian law to maintain the present action. *.Second.*It is also urged that “ the Winding-Up Act of Canada is an insolvency law and has no extra-territorial effect. It will not be enforced in the State of New York to the prejudice óf residents or of persons doing business in this State.” Assuming that the proposition urged is true, I cannot see that it has any application to the facts of this case. No attempt is now being made to give the act .any extra-territorial effect. With as much reason it could be urged that the courts shall not sustain a subpeena under a commission issued in' an action on one of the common courts brought in Canada to take testimony of a foreign witness. If the Canadian courts had jurisdiction to appoint the liquidator *493and to hear and determine the action commenced by the liquidator against the defendant Scott, then it follows that they have the right to issue a commission 'to any foreign State to take testimony of a witness whose testimony is regarded as necessary to the proper administration of justice within that jurisdiction. I concede that comity would not require this 'court to enforce a subpoena in aid of a foreign, commission when such action would prejudice or violate the rights of the 'citizen of this State. It is not clear how McHaught will be .prejudiced or his rights violated by being compelled to give *I*his testimony here to be used in a proceeding in a foreign *¡*jurisdiction, in which proceeding he is not a party. *Third.*The objection urged that “ this court should not lend its aid to the Canadian court in enforcing an unjust demand against' a Canadian stockholder of an American corporation ” is peculiarly inept. The very question in issue which is to be determined in the present action in the Canadian court is, whether or not the demand of the complaint is just or unjust. This court will not assume to determine this issue and try upon the merits the justice of the complainant’s claim. It is j enough for us to know that in the judgment of the Canadian ’ courts the testimony of the witness McHaught is regarded i as necessary in order to reach a just determination of the is- . sue raised in this action. The Canadian courts having juris- ■- diction, and it appearing that the rights of our own citizens are not violated or threatened, the principle of comity should be applied and our courts should facilitate the Canadian ' courts in the same manner that we must assume the Canadian courts would'assist us. The fact that the action is against “ a Canadian stockholder of an American corporation”, is a strange ground upon which to urge this court to turn a deaf ear to the principle of comity. If the action was brought against an American citizen and his rights were about to be affected by the action in the foreign courts the plea might have at least a certain plausibility. But where the action is against a British subject resident in Canada it is unreasonable to suppose that the Canadian courts are not competent to protect his rights. *Fourth.*It is further urged that this *494court should follow the decision in Hatter of Great ¡Northern Construction Co., 50 Hisc. ¡Rep. 467. This contention upon the argument impressed me as the most serious consideration urged on hehalf of McNaught. That decision was made at a Special Term of this court in this proceeding. Then opinion of the learned justice is entitled to the most respectful consideration. That opinion held that the Winding-Hp Act of 1886 (chap. 129) was superseded by the Winding-Hp Act of 1889 (chap. 52, Viet.), and that the Canadian court was without jurisdiction. Since that time, as has been pointed out above, the Canadian courts have held that the last act merely supplements the other and was amendatory thereto, and not in conflict with it. Ontario Forge & Belt Co., Lim., 25 Ont. 407. This being a matter of Canadian law and relating to the interpretation and construction of Canadian statutes is a matter upon which the courts of Canada speak with the highest authority. Another radical difference in the facts which were presented to the court upon the previous motion and those which now exist is that there was then no action pending in the Dominion of Canada at .the time the subpoena was issued. Since that time such an action has been commenced and is now pending. In view of these considerations I feel that the decision in Matter of Great Northern Construction Co., 50 Misc. Rep. 467, should not be regarded by me as controlling. Having reached the opinion that no valid reason is urged why the subpoena should be vacated, it follows that the motion to punish the witness McNaught for contempt must be granted unless he shall purge himself of such contempt by answering the questions contained in the interrogatories at a time and place' to be fixed in the order to be entered upon this decision. Motion to vacate the subpoena is denied and the motion to compel the witness to answer is granted to the extent indicated in this opinion.

Ordered accordingly.