John L. Bogert, Respondent, v. The Otto Gas Engine Works, Appellant

John L. Bogert, Respondent, v. The Otto Gas Engine Works, Appellant. Action against a non-resident corporation — allegations as to the plaintiff’s residence — order for the publication of the summons. A complaint, alleging merely that the plaintiff is engaged in business in the State of New York, hut not that he is a resident thereof, and further alleging that the defendant is a foreign corporation, is not sufficient to establish jurisdiction in the court under the provisions of section 1780 of the Code of Civil Procedure, providing that an action against a foreign corporation may he maintained by a resident of the State for any cause of action; and upon such complaint and an affidavit, which sets up no other jurisdictional facts, an order for the publication of the summons in the action is improperly granted. Appeal by the defendant, The Otto Gas Engine Works, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 10th day of February, 1898, denying the defendant’s motion to vacate an order directing the service of the summons by publication. Charles H. Broas, for the appellant. Francis W. Cheesman, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Section 1780 of the' Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a resident of the State for any cause of action. The .complaint alleges merely that the plaintiff is engaged in business in this State, and does not allege that he is a resident, and further alleges that the defendant is a foreign corporation. The allegations of the complaint are insufficient to establish jurisdiction. Upon the complaint •and an affidavit, which sets up no other jurisdictional facts, the order was granted for the publication of the summons. We think this was error. The allegation of the transaction of business within this State is not equivalent to an allegation of residence, and the failure of the plaintiff to allege residence within the State is a fatal defect. The order is reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted.