Horne v. City of Buffalo. legal or equitable in its character. The intention of the legislature to make an action for the abatement of a nuisance, local, is clearly manifested by classifying it with actions which are in their nature local, such as ejectment and waste. [6] I am clearly of the opinion that the nuisance described in the complaint is situated in the county of Erie, at the place where the defendants are in the habit of dumping foul substances in Niagara river. The defendant, Martin, is the street commissioner for the city of Buffalo, and a public officer. All his official duties, as prescribed by the charter of the city of Buffalo, are to be performed within its corporate limits, which are also within the county of Erie. It is not alleged that he did any act in his official capacity outside of the limits of the city of Buffalo; and as to him, I think the proper place of trial is the county of Erie, as provided by section 983. By that section, all actions against a public officer for an act done in virtue of his office, must be tried in the county in which the cause of action, or some part thereof, arose. It is often a difficult question to determine where the cause of action arises. A breach of the terms of a contract gives a right of action to the party who is injured thereby, and the place where the contract was to be performed, and the breach took place, is the place where the cause of action arises (Hibernia Nat. Bk. v. Lacombe, 84 N Y. 367). [] This action, as to the defendant, Martin, is based upon his action as a public officer, and the judgment demanded that he, as street commissioner, be restrained from dumping refuse material, etc., into the Niagara river above the place where the plaintiffs draw their water supply therefrom. This is an action ex delicto, and the defendant Martin has not committed any trespass upon the plaintiff's property, nor has he done or performed any act in Niagara county, which has resulted in an injury to the plaintiff. He is charged with doing an Jelly . Paraiso Reduction Co. unlawful act in the county of Erie, which has resulted in a damage to the plaintiffs. It is true, as argued by the counsel for the plaintiffs, that no cause of action arose in their favor until the water of the river was corrupted and became unfit for use at the place where they draw their supply therefrom. But that is one of the consequences arising from the defendant's unlawful act done at another place. Whatever may be the form of the action, the breach of duty, or unlawful act complained of, is substantially the cause of action (President, &c. of Bank of Commerce v. Rutland & Washington R. R. Co., 10 How. Pr. 1, 9). The order should be reversed, and the place of trial changed to Erie county. HAIGHT, J. concurred; BRADLEY, J., concurred in the result on the last point stated; DWIGHT, J., dissented. JELLY v. PARAISO REDUCTION COMPANY. SUPERIOR COURT OF THE CITY OF NEW YORK, SPECIAL TERM, MAY, 1888. §§ 263, subd. 5, 1784 et seq., 1788. Corporation-appointment of receiver in action for sequestration-Jurisdiction of New York superior court. Subdivision 5 of section 263 of the Code of Civil Procedure,-limiting the jurisdiction of the New York superior court in judgment creditors' actions to cases in which the judgment upon which the action is founded was recovered in the same court,-is unconstitutional, and so inoperative. Popfinger v. Yutte (102 N. Y. 42), followed. The superior court of the City of New York has within its territorial limits jurisdiction in equity co-equal with that of the supreme court. Jelly . Paraiso Reduction Co. The superior court of the city of New York has power to appoint a receiver in an action brought therein by a judgment creditor upon a judgment recovered in the New York court of common pleas for the sequestration of the property of such corporation. (Decided May 27, 1888.) Motion by plaintiff for the appointment of a temporary receiver of the property, etc., of the defendant. The plaintiff is a judgment creditor of the defendant, a domestic corporation, having recovered judgment against it in the court of common pleas for the city and county of New York upon which execution was duly issued and returned unsatisfied. Subsequent to the return of such execution, he commenced this action for the sequestration of the property of the defendant and duly made this motion. James K. Duffy, for plaintiff and motion. James H. Bullick, for defendant, opposed. DUGRO, J.-The defendant claims that the superior court can only appoint receivers in judgment creditors' actions when the judgment on which the action is founded was recovered in the superior court. This would be so, were it not that subdivision 5 of section 263 of the Code is unconstitutional, and so inoperative (Popfinger . Yutte, 102 N. Y. 42). It seems that the superior court of the city of New York has, within its territorial limits, general jurisdiction in equity co-equal with that of the supreme court.* Defendant also contends that the supreme court of the State of New York, and it alone, has jurisdiction to appoint receivers of corporations in sequestration proceedings, and in support of his contention he cites Laws 1870, c. 151; Lehigh Coal & Navigation Co. v. Central Railroad *See Brooks v. Mexican Nat. Const'n Co., 3 N. Y. Civ. Pro. 36. Robinson v. Ocean Steam Navigation Co. of N. J., 43 Hun, 546. Chapter 151, Laws 1870, is repealed. See chapter 245, Laws 1880. I have carefully considered all the points advanced by the defendant, but cannot convince myself otherwise than that the plaintiff is entitled to have his application granted. Let an order be entered on notice. ROBINSON, AS ADMINISTRATOR, ETC., RESPONDENT, v. OCEAN STEAM NAVIGATION CO., APPELLANT. SUPERIOR COURT OF THE CITY OF NEW YORK, GENERAL TERM, JUNE, 1888. § 1780. Jurisdiction, when court of this State has not, of foreign corporation -objection to, when cannot be waived. Where, in an action upon a cause of action which did not arise within this State, the plaintiff is a non-resident of this State and the defendant is a foreign corporation, no court of this State has jurisdiction of this action. Brooks v. Mexican National Construction Co. (50 N. Y. Super. [18 J. & S.] 281; aff'g 3 N. Y. Civ. Pro. 36), followed; Popfinger v. Yutte (102 N. Y. 42), distinguished. A non-resident of this State does not become a resident of this State for any purpose by force of the granting of letters of administration to him within this State. A cause of action for damages resulting to a decedent's next of kin by her death caused by the defendant is a transitory cause of action in tort; and, where injuries resulting in death are inflicted outside of the State, it arises without the State. Where the court has not jurisdiction of the person of a defendant for the reason that it is a foreign corporation, and the plaintiff is a non-resident, and the cause of action one that arose out of the State, the attention of the court may be turned at any stage of the action to the want of jurisdiction, and it may then declare to the Robinson v. Ocean Steam Navigation Co. parties that for that reason the proceedings from the beginning have no legal effect and that no further proceedings shall be taken, and this may competently be done by setting aside the summons and all that followed. No action of a judge can confer power on the court when the State has not given it, nor can the judge or court, by any action, remedy a supposed neglect of the State to establish courts of sufficient jurisdiction; the court can only ascertain what jurisdiction has been given. (Decided June 20, 1888.) Appeal by defendant from an order denying its motion to vacate the summons and dismiss the complaint. This action was brought by John Robinson, who is a resident of Fall River, Massachusetts, and to whom letters of administration had been granted in this State upon the chattels, etc., of Jane Lingard Robinson, deceased, against the defendant, a foreign corporation, to recover $15,000 damages for the death of the plaintiff's intestate,' which is alleged to have occurred in a collision between the defendant's steamships Britannic and Celtic, on the Atlantic Ocean and within the territorial limits of the United Kingdom of Great Britain and Ireland. The complaint sets forth at length a statute of the United Kingdom of Great Britain and Ireland, providing for the bringing of such an action by the personal representative of a decedent, which statute is similar in the more important particulars to our own statute upon the subject, contained in sections 1902 et seq. of the Code of Civil Procedure. This action was begun by the personal service of the summons on August 27, 1887, which was followed by the service of a notice of appearance by the defendant on October 22, 1887. The complaint was duly served, and on November 14 following, an order was made requiring the plaintiff to file security for costs on the ground that he was a non-resident of the State. On January 23, |