This motion involves the construction of a statute of Connecticut and the application thereto of “ due process ” under the Constitution of the State and Nation. (N. Y. Const, art. 1, § 6; U. S. Const. 14th Amendt.) The question presented is the validity of such statute in providing for service of process on non-residents in actions for injury based upon the negligent operation of automobiles on its highways. Plaintiff’s assignor, Charles Montanaro, is a resident of Connecticut. Defendant is a
Process was duly served there upon the Commissioner of Motor Vehicles eighteen days before the return day; and a true and attested copy thereof, with the prescribed indorsement, was received by defendant by registered mail. The crisp statement of Chief Judge Cullen of our Court of Appeals in Grubel v. Nassauer (210 N. Y. 149, 152) gives a setting for this statute and a method of approach to its consideration: “By the requirement of the Federal Constitution each state is required to give full faith and credit to the judgments of the other states. It is not a matter of comity between the states, but of obligation imposed by the paramount law. Yet it is settled that a judgment for money recovered in one state with
The power of a State to regulate the use of its highways extends to their use by non-residents as well as by residents. (Hendrick v. Maryland, 235 U. S. 610, 622.) Non-resident owners may be required to appoint a State official as agent upon whom process may be served in legal proceedings against them and resulting from the operation within the State of their motor vehicles, and may be excluded until the formal appointment is made. (Kane v. New Jersey, 242 U. S. 160, Dec. 1916.) Whether such appointment be formal or implied is not substantial so far as concerns the application of the “ due process ” clause. (Hess v. Pawloski, 274 U. S. 352, May, 1927.)
In the case of Hess v. Pawloski (supra) there was declared constitutional a statute of Massachusetts (General Laws, chap. 90, as amd. by chap. 431 of the Laws of 1923, § 2), which, after similarly providing for implied appointment of a State official, reads: “ provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant’s return receipt and the plaintiff’s affidavit of compliance herewith are appended to the writ and entered with the declaration. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action.” Incidentally, it may be noted that New York State has wisely followed the wording of the Massachusetts statute. (See Laws of 1929, chap. 54, § 52, entitled “ An Act relating to motor vehicles, motor cycles, and highway traffic, constituting chapter seventy-one of the consolidated laws,” which was first enacted by chapter 465, Laws of 1928, adding section 285-a to Highway Law, and effective on July 1,1928.) These requirements really make necessary actual personal service to be evidenced by the written admission of the defendant.
In Kane v. New Jersey (supra) the service provided for by statute was by mail to the necessarily known registered address of the licensed defendant. Under the Connecticut statute, however, it would be possible to obtain a default judgment against a
Montanaro may be without remedy in view of the prohibitive expense that would be incurred in the commencement and prosecution of his claim for damages in this State. That is unfortunate, of course. But he is facing a situation no different from other persons who have sustained injuries and who cannot shoulder the burden necessarily theirs to discover those responsible therefor.
The true test is: “ Does the Connecticut statute make it reasonably probable that notice of service on the Commissioner will be communicated to the non-resident defendant who is sued? ” I think not.
Counsel have been unable to find any case directly in point, and the court by independent research has found none. However, from the reasoning of kindred opinions, and more particularly that of Chief Justice Taet in Wuchter v. Pizzutti (276 U. S. 13, decided in Feb. 1928), it is deduced that the Connecticut statute here under discussion is lacking in due process of law.
Motion denied.