Johnson v. Victoria Chief Copper Mining & Smelting Co. , 119 N.Y.S. 639 ( 1909 )

Newburger, J.

This action was commenced by the plaintiff, on or about May 17, 1907, and is brought to enforce a contract alleged to have been made between him and the defendant Hopper, whereby Hopper agreed to transfer a part of certain interests that he had in mining property in Hew Mexico. In the year 1906, Hopper and the defendant Bigelow organized the Victoria Chief Copper Mining and Smelting Company under the laws of Arizona, and conveyed to said company the mines and claims referred to in the complaint, situated in Hew Mexico. The prayer in this complaint demands judgment directing Hopper and Bigelow to convey to the plaintiff one-third of said property, and the Victoria Company to account to the plaintiff for the profits realized by it from the operation of said property, and that said property be impressed with a trust in favor of plaintiff. Subsequently to the commencement of this action, and on or about Hay 9, 1908, an action was instituted by the Victoria Company in the District Court for the county of Sierra, Territory of Hew Hexico, against the plaintiff and the defendants Gardner and Hacy. In that action the complaint alleged that the plaintiff and the defendants Gardner and Hacy claimed to have some interest adverse to the estate of the Victoria Company, and prayed that this plaintiff and the said defendants Gardner and Hacy be barred and forever estopped in having or claiming any right or title to the said mining claims and real estate or any part thereof. Personal service of the summons in that action was made upon the defendant Hacy and service by publication upon the plaintiff, Johnson, and the defendant Gardner. Judgment was entered against the plaintiff, Johnson, and the defendants Hacy and Gardner. By an order heretofore made certain issues of fact and law were directed to be tried prior to the trial of the other issues in this action, namely: (1) Whether or not the judgment alleged in the supplemental answer of the defendant Victoria Chief Copper Hining and Smelting Company was obtained and the proceedings and things in such supplemental answer alleged occurred as alleged; (2) whether or not the residence of the plaintiff was as alleged in said sujiplemental answer; (3) whether or not the laws alleged in said answer were in fact the laws of the Territory of Hew Hexico; (4) whether or not said judgment is a bar to the prosecution of this action by the plaintiff against the Victoria Company; (5) whether or not this court has jurisdiction to grant any relief in this action to plaintiff. These issues are the only ones submitted upon this trial. There can be no question that the judgment alleged in the supplemental answer of the defendant Victoria Chief Copper Hining and Smelting Company was obtained and the proceedings and things set forth in such supplemental answer occurred as alleged. A careful consideration of the testimony leads me to the conclusion that the plaintiff, Johnson, at the time such action was pending, was not a resident of New Mexico, but did reside in Louisville, county of Jefferson, State of Kentucky. I further find that the laws alleg’ed in said answer were in fact the laws of the Territory of New Mexico, and the judgment obtained in New Mexico is a bar to the prosecution of this action by the plaintiff against the Victoria Company. I am also of the opinion that this court has no jurisdiction of this cause of action, for the reason that at the time of the commencement of the action the plaintiff was and now is a resident of the State of Kentucky, the defendant is a corporation organized under the laws of Arizona, and the property sought to be affected is located in New Mexico. _ See Code Civ. Pro., § 1780; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315. The motion to dismiss must therefore be granted.

Motion granted.

* See 60 Misc. Rep. 464, 467.—Rep.