May Term, 1897.
J. Edward Ackley, for the appellant.
Jas. McNaught, for the respondent.
This is an appeal from an order setting aside the service of a summons, dismissing the complaint against the defendant Nye, and vacating a warrant of attachment which was granted against him in the action. It appeared from the papers that all of the parties to the action are non-residents of this State, and that the defendant Nye appeared specially in the action for the purpose only of setting aside the service of the summons and vacating the warrant of attachment. The motion was granted by the learned judge at Special Term for the reason, as appears in his opinion, that all the parties being non-residents the courts of this State would not take jurisdiction of their controversy, but would remit them to the courts of the State where they lived to settle their affairs there. In this conclusion we think the learned judge was in error. There is no doubt a rule that the courts of this State will not take jurisdiction of actions of tort between parties resident of, and located in, another State. But that rule does not apply, and has never been applied, to actions on contract. Where actions are brought for a breach of a contract, courts of this State will take jurisdiction, although all the parties may reside in another State. Especially is that so where the contract is made in this State. ( Smith v. Crocker, 14 App. Div. 245.)
The motion to vacate the attachment was put not only upon the ground that the parties were non-residents, and for that reason the court would not take jurisdiction, but upon the further ground that upon all the facts the plaintiff had no cause of action against the defendants. An examination of the papers shows that it is by no means clear that there is not a cause of action, and that it is not at all certain that the damages may not amount to a considerable sum. In such case the court will not consider the merits of the action upon affidavits and vacate the warrant because it determines upon the motion that the plaintiff cannot succeed, but will deny the motion, leaving the merits of the case to be disposed of upon the trial. ( Johnson v. Hardwood Door Trim Co., 79 Hun, 407.) That course should have been pursued in this case.
The order, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., WILLIAMS, PATTERSON and PARKER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.