Opinion
April 18, 1946.
Appeal from Supreme Court in the first judicial department.
The claim that the prosecution of an action imposes an undue burden on interstate commerce must be seasonably asserted. In this case defendants appeared generally and served and filed an answer containing a general denial and three affirmative defenses. Before moving to dismiss the action upon the ground that its prosecution in New York would impose an undue burden on interstate commerce, defendants litigated plaintiffs' suit practically up to the eve of trial. Plaintiffs are residents of the city of New York and the suit is one over which the Municipal Court has jurisdiction. Defendants, if they so desired, could consent to litigate the issues here. ( Atchison Ry. Co. v. Wells, 265 U.S. 101, 103; Baltimore Pub. Co. v. Swedish-Am. Mex. Line, Ltd., 143 Misc. 229.) Though defendants had full knowledge of the facts, they failed to make timely objection to the exercise of the court's jurisdiction. Hence, they must be deemed to have waived the privilege to move to dismiss. ( Freeman v. Bee Machine Co., 319 U.S. 448, 453; Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179, 180; Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 168; Int. Milling Co. v. Columbia Co., 292 U.S. 511, 520.) Accordingly, I dissent and vote to reverse the determination of the Appellate Term and the judgment and order of the Municipal Court and to deny the motion to dismiss the complaint.
Martin, P.J., Townley, Glennon and Dore, JJ., concur in decision; Cohn, J., dissents in opinion.
Determination affirmed, with costs and disbursements. No opinion. [ 186 Misc. 110.] [See post, p. 935.]