Opinion
January, 1901.
Strong Caldwalader (W.W. Thompson, of counsel), for appellant.
House, Grossman Vorhaus (Louis J. Vorhaus and Joseph Fischer, of counsel), for respondent.
The action is to recover damages for the loss of the plaintiff's baggage in a wreck caused by the derailment of part of a train belonging to and operated by the defendant. It is urged by the appellant's counsel that the proof fails to show either the destruction of the respondent's property, or that it was lost through the negligence of the appellant. But, as no motion was made by the appellant at the close of the whole case, or at any other stage of the trial, to dismiss the complaint, except on the ground that the court below had no jurisdiction of the action because it was a foreign corporation the appellant, by failing to base his motion upon other grounds, conceded that there were issues of fact to be determined. Rusher v. Brennan, 29 Misc. 143.
If we may be permitted, however, to pass upon the facts, we think there was sufficient evidence adduced upon the trial to warrant the justice in finding, as is assumed from the judgment, that the baggage in suit was lost as the result of an accident and that such accident was solely due to the negligence of the appellant. The Court of Appeals, having decided in Worthington v. London G. A. Co., 164 N.Y. 81, that the Municipal Court of the city of New York has jurisdiction over foreign corporations, the argument of the appellant's counsel has been confined to the merits of the case.
After carefully considering the record we are of the opinion that the judgment is right, and hence, that it should be affirmed, with costs.
Present: GIEGERICH and O'GORMAN, JJ.
Judgment affirmed, with costs.