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1919.]

Opinion, per CHASE, J.

[225 N. Y.]

depend upon the construction and effect of a statute or judicial opinion they are for the court and not questions of fact at all. (Bank of China, etc., v. Morse, 168 N. Y. 458, 470.) On a trial of an issue of fact when the evidence furnished is conflicting or inconclusive the law of a foreign state may be a question for the jury although ordinarily when the evidence is all furnished it is the function of the judge to decide as to the law of a foreign state. (Ufford v. Spaulding, 156 Mass. 65; Hancock National Bank v. Ellis, 172 Mass. 39, 49.)

An allegation in a pleading of the law of a sister state is as we have stated an allegation of fact which is admitted by the demurrer. If the pleading sets forth in detail the statutes and decisions relied upon by the pleader, the question becomes one of law and should be determined as such by the court in deciding the demurrer. A demurrer, in other words, does not admit the interpretation placed by a pleader upon the statutes and decisions specifically referred to or incorporated in a pleading.

In Finney v. Guy (189 U. S. 335) there was before the court the state statutes together with a reference to the decisions of the state courts, and the pleader by making an averment of the law of the sister state in the form relied upon by him, submitted to the court the meaning of such statute and decisions. It was in that case held in substance that while a demurrer admitted the existence of the decisions and the statutes it did not necessarily admit the interpretation placed upon them by the pleader or the legal conclusion reached by him therefrom.

In Knickerbocker Trust Co. v. Iselin (185 N. Y. 54) the complaint alleged that by virtue of certain statutes of the state of Maryland enumerated as defined, construed, administered and enforced by the courts of said state, the defendant was personally and individually indebted to the plaintiff in an amount stated. The demurrer although admitting the pleading in the form in

[225 N. Y.]

Statement of case.

[Feb.,

which it was prepared permitted the court to determine the conclusion to be derived therefrom as a matter of law.

In this case the allegations of the defense under consideration are general and by such allegations the law of the states named is stated to be as in the defense alleged, and the statutes or judicial decisions upon which the allegations are based are not before the court from which a conclusion of law can be reached.

The orders should be reversed, without costs, and the defendants' motion to overrule the plaintiff's demurrer should be granted without costs, with leave to plaintiff to withdraw demurrer and leave the questions raised upon the pleadings for determination at the Trial Term, and the question certified should be answered in the affirmative. HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLaughLIN and ANDREWS, JJ., concur.

Orders reversed, etc.

FRANK MUSLUSKY, Appellant, v. LEHIGH VALLEY COAL COMPANY, Respondent.

Practice special appearance - demand for copy of the complaint in an action is not an appearance, either general or special motion to dismiss complaint for failure to serve denied.

1. A defendant may appear specially in an action only for the purpose of raising the question whether the court has obtained jurisdiction over him personally or through his property.

2. A demand for a copy of the complaint is not an appearance, either general or special. Defendant's general appearance can be made only in the manner indicated in section 421 of the Code of Civil Procedure.

3. A defendant who has appeared specially for the purpose of obtaining a copy of the complaint is not in a position to move to dismiss the complaint if no complaint is served. (§§ 479, 480.)

Muslusky v. Lehigh Valley Coal Co., 175 App. Div. 926, reversed.

(Submitted January 29, 1919; decided February 25, 1919.)

1919.]

Points of counsel.

[225 N. Y.]

APPEAL from a judgment, entered November 29, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion for an order, under section 480 of the Code of Civil Procedure, dismissing the complaint for failure to serve a copy thereof after a demand therefor had been served pursuant to section 479 of said Code, and granted said motion.

The facts, so far as material, are stated in the opinion.

Charles Goldzier and Joseph Levy for appellant. The Code of Civil Procedure does not authorize a demand for the service of a complaint without a general appearance in the action. (Code Civ. Pro. §§ 421, 479, 480; Reed v. Chilson, 142 N. Y. 152; Farmer v. N. L. Assn., 138 N. Y. 265; Couch v. Mulhane, 63 How. Pr. 79; Wood v. Furtick, 17 Misc. Rep. 561; Duino v. Arbuckle, 166 App. Div. 86.) The defendant having appeared here solely to contend against the jurisdiction of the court, was not justified to utilize such appearance to compel the further prosecution of the action or to obtain a judgment therein in its favor. (4 Corpus Juris, 1318.)

Peter C. Mann for respondent. A special appearance for the purpose of saving and raising objections to the jurisdiction of the court has always been recognized as regular and proper practice. (McClure Newspaper Syndicate v. Times Printing Co., 164 App. Div. 108; Reed v. Chilson, 142 N. Y. 152; Goldey v. Morning News, 156 U. S. 518.) The Code of Civil Procedure by implication clearly recognizes the right of a defendant to have a copy of the complaint in an action without interposing a general appearance. (Code Civ. Pro. § 479; Kirewich v. P. & R. C. & I. Co., N. Y. L. J., Jan. 4, 1916; Beisel v. L. V. Coal Co., N. Y. L. J., Feb. 17, 1916; Lukosewicz v. P. & R. Coal & Iron Co., 173 App. Div. 965; Agminas v. W. B. Colliery Co., 173 App. Div. 938; Hoyt v. Ogden

[225 N. Y.]

Opinion, per POUND, J.

[Feb.,

P. C. Co., 185 Fed. Rep. 889.) The defendant, having served a demand for a copy of the complaint, is entitled to a dismissal upon the failure of the plaintiff to comply with this demand. (Lukosewicz v. P. & R. Coal & Iron Co., 173 App. Div. 965; Agminas v. W. B. Colliery Co., 173 App. Div. 938.)

POUND, J. The summons was delivered to the assistant secretary of defendant. Defendant, by its attorneys, served a notice of special appearance which contained a demand for a copy of the complaint. The special appearance was stated in the notice to be for the sole purpose of obtaining such copy" in order that defendant may be advised of the nature of the alleged cause of action sued upon and may thereafter take such objections to the jurisdiction of this court as it may be advised." No copy of the complaint was served. When the time for the plaintiff to serve the same expired, defendant moved to dismiss the complaint under section 480, Code of Civil Procedure, which reads as follows:

"If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint.'

In the notice of motion, defendant's attorneys added to their former special appearance an appearance "for the purposes of this motion." The motion was denied on the ground that the defendant, having appeared specially, could attack only the jurisdiction of the court over its person. An appeal was taken by defendant to the Appellate Division from the order entered on said motion. In the notice of appeal, defendant's attorneys again attempted to extend their former special appearance by including therein the words, "for the purposes of this appeal." The order of the Special Term was reversed by a unanimous court without opinion, and the complaint was dismissed. From the judgment entered

1919.]

Opinion, per POUND, J.

[225 N. Y.]

thereon this appeal was taken, and again the attorneys for the defendant " appear specially for the purposes stated in the notice of appeal and no other" to support the judgment appealed from.

The theory of special appearances has been pushed by the defendant to an illogical extreme. A summons is served in order to bring the defendant under the authority of the court. Until jurisdiction has thus been obtained, no binding judgment can be entered. (Davis v. Cleveland, C., C. & St. L. Ry. Co., 217 U. S. 157; Big Vein Coal Co. v. Read, 229 U. S. 31.) When the summons has been served on a defendant who does not intend to submit himself to the jurisdiction of the court over his person, he may elect to remain out of court but he need not wait until the entry of judgment against him by default. He may appear specially. (Goldey v. Morning News, 156 U. S. 518; Reed v. Chilson, 142 N. Y. 152.) The special appearance is recognized only for the purpose of raising the question whether the court has obtained jurisdiction over the defendant personally or through his property. If the defendant serves a general notice of appearance, his right to assail the claim of jurisdiction over his person is waived. (Code Civ. Pro. § 421; Reed v. Chilson, supra.) If a motion to vacate the service of the summons on a special appearance is first made, the defendant may by answer iterate the plea to the jurisdiction. (Toledo Rys. & Light Co. v. Hill, 244 U. S. 49.)

66

may

The complaint reveals the merits of the action. To obtain a copy thereof, when it is not served with the summons, the defendant's attorney must serve upon the plaintiff's attorney a written demand" which be incorporated into the notice of appearance." (Code Civ. Pro. § 479.) A mere demand for a copy of the complaint is not an appearance, either general or special. Defendant's general appearance can be made only in the manner indicated in section 421 of the Code (Littauer

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