152 N.Y.S. 84 | N.Y. App. Div. | 1915
The Famobrosis Society and Royal Benefit Society are fraternal insurance associations incorporated under the laws of the District of Columbia. Prior to December 31, 1909, the Famobrosis Society had accumulated a reserve fund of upwards of $30,000, which was deposited with certain banks and trust companies in the city of Yew York, which, with the Royal Benefit Society, are made parties defendant in this action. On that day the two associations entered into a written agreement, by the terms of which the Royal Benefit Society undertook, as trustee, the management of the affairs of the Famobrosis Society, agreeing to perform its obligations, to establish and promote a separate department under the name of “ Famobrosis Division of the Royal Benefit Society,” and to keep the accounts of that department separate and distinct from its other accounts. The agreement also provided that no change should be made in the reserve fund which the Famobrosis Society had accumulated, the same being designated as a trust
On May 2,1911, the Eoyal Benefit Society notified the Famobrosis Society that it had fully performed the agreement on its part and thereby exercised its election that the agreement should terminate. In November, 1911, the plaintiff commenced this action. The complaint alleges that the Famobrosis Society was induced to enter into the agreement referred to by reason of fraudulent representations of the Eoyal Benefit Society; also that it had not performed the agreement on its part. The judgment demanded is that the agreement be canceled; that the bank books, securities, etc., be returned to the plaintiff; that it be adjudged to be the sole owner of the funds in question; and that the Eoyal Benefit Society be enjoined from interfering with, and the banks and trust companies from paying over, said funds until the further order of the court. The Eoyal Benefit Society in its answer sets up, among other defenses, as a bar to the maintenance of this action, a decree of the Circuit Court of the State of Illinois, rendered in October, 1911, in an action in which two alleged members of the Famobrosis Division óf the Eoyal Benefit Society—Avery and Grile —
I am of the opinion that the judgment appealed from is in the main right and should be affirmed. The Illinois action was commenced in August, 1911. The plaintiffs, in their bill or complaint, alleged that the Royal Benefit Society had fully performed its part of the agreement of December 31, 1909; that it thereupon became entitled to the funds and other assets of the Famobrosis Society; that instead of taking over such property the Royal Benefit Society was considering a new arrangement with the Famobrosis Society which would result in great injury to the plaintiffs. The judgment demanded was that the agreement of December 31, 1909, he construed and that all of the funds of the Famobrosis Society be adjudged to belong to and be the property of the Royal Benefit Society. A joint answer was interposed on behalf of the Famobrosis Society and the Royal Benefit Society by an attorney by the name of Kenney. While calling attention to the fact that there was, or had been, a dispute between the two societies as to whether the agreement of December 31, 1909, had been fully performed, it alleged that the Royal Benefit Society had fully performed on its part and it was, therefore, entitled to a judgment or decree to that effect. The Illinois court found as a fact that the Royal Benefit Society had performed the agreement upon its part and by reason thereof had become vested with all the property of the Famobrosis Society.
The Famobrosis Society contends that the judgment is not binding upon it since the court did not have jurisdiction of it. If this contention be correct then it necessarily follows that the judgment is not binding upon this plaintiff and does not prevent its maintaining this action.
In Midland Pacific Ry. Co. v. McDermid (91 Ill. 170) the question considered was the validity of the service of process upon Nebraska corporations whose superintendent was served
The Famobrosis Society, as already indicated, had no property in the State of Illinois. It was not transacting any business there and jurisdiction over it could not be obtained by serving process in the manner here attempted. Not only this, but it is quite obvious that the action was not commenced, or defended, in good faith so far as this plaintiff is concerned. The persons served were in no sense its agents. They were the agents and representatives of the Eoyal Benefit Society.
It is also claimed that jurisdiction of the Famobrosis Society was obtained in the Illinois action by the attorney who appeared therein on its behalf. The evidence did not establish any authority on the part of Kenney to appear for it. It is quite evident from the joint answer which he interposed, in which it was alleged that the Eoyal Benefit Society had fully performed the agreement, that he did not suppose he was representing it, if the purpose of the action were to settle a dispute between the two societies as to whether the agreement had been performed.
Further claim is made that the authority of the attorney to appear for the Famobrosis Society cannot be attacked collaterally. The rule sought to be applied in this respect, and the authorities cited in support of it, have no application. That rule applies only in the jurisdiction in which the attorney appears and the judgment is recovered. It has never been applied, so far as I am aware, to judgments recovered in other States. (Vilas v. Plattsburgh & M. R. R. Co., 123 N. Y. 440; White v. Glover, 138 App. Div. 797; Prichard v. Sigafus, 103 id. 535.)
Finally, it is claimed by the appellant that certain findings in the decision are erroneous and that the judgment is
The judgment appealed from, therefore, is modified as stated, and as thus modified affirmed, with costs to respondent.
Ingraham, P. J.., Laughlin, Clarke and Scott, JJ., concurred.
Judgment modified as stated in opinion, and as modified affirmed, with costs to respondent. Order to be settled on notice.