J. F. Daly, J.This court had no jurisdiction of the action. A late decision of the Supreme Court, general term *410of the first department, holds, that the objection, if the want of jurisdiction appear on the face of the complaint, should be taken by demurrer, otherwise by answer; and that the question of jurisdiction should not be tried upon affidavits (Johnson v. Adams Tobacco Co., 14 Hun, 89). Where a question of fact arises upon the motion raising an issue as to jurisdiction, the case cited is good authority for denying the application, and leaving the defendant to his answer ; but where the facts are undisputed and the law certain, the order asked for should be granted, as in Cumberland Coal Co. v. Sherman (8 Abb. Pr. 243), affirmed at general term in this district.
Beach, J., concurred.
Order affirmed, with $10 costs and disbursements.