225 A.D. 145 | N.Y. App. Div. | 1928
Lead Opinion
Whether or not the Supreme Court of this State has jurisdiction of defendant and of the subject-matter of the action is the question.
Intestate was injured at Wilhston, Vt., in the course of his work for defendant, and died on November 25, 1927, as the result of his injuries. He resided in Vermont and letters of administration upon his estate were granted there, whereupon ancillary letters were granted in Clinton county, this State, and this action was then brought in Schenectady county, this State, under the Federal Employers’ Liability Act. The action could be brought in this State, if defendant was doing business within the State. (Federal Employers’ Liability Act [35 U. S. Stat. at Large, 66], § 6, as amd. by 36 id. 291, chap. 143, § 1; now U. S. Code, tit. 45, § 56; Gen. Corp. Law, § 47 as added by Laws of 1920, chap. 916.) Defendant railroad is located, mostly, in Vermont, but extends into Clinton county, this State, where it operates engines and trains in yard service and in switching and making up trains and where it owns property and pays taxes. It was doing business within this State at the time the cause of action accrued, and service of the summons and complaint was made upon a director in this State. (Stoddard v. Manzella, 207 App. Div. 519; Levey v. Payne, 200 id. 30; Polley v. Lehigh Valley R. R. Co., 138 id. 636; affd., 200 N. Y. 585; Civ. Prac. Act, § 229, subd. 3; Tauza v. Susquehanna Coal Co., 220 N. Y. 259.) But receivers of its property were appointed, with the consent of the defendant, on December 14, 1927, and were acting at the time of the service and the question arises whether or not the corporation was then doing business here and whether or not the action may be maintained against it. The bill of complaint under which the receivers were appointed does not appear in the record and the order does not state the grounds of their appointment, but, under it, they were invested with the powers of receivers in equity, of all and singular the property, premises and assets of the company, of every name and nature, real, personal and mixed, and wherever situated and were authorized and directed forthwith to take possession thereof, to preserve, manage, operate and use the same, to run and operate the railroads and to conduct the business according to law and the principles, rules and practice in equity in such cases and to do all things necessary or convenient therefor. Further, they were authorized and directed to collect all moneys due or to become due to the company, to institute and prosecute suits in their names as receivers or in the name of the company, as counsel might advise, and to defend such suits as
The order should be affirmed, with costs.
Van Kirk, P. J., and Davis, J., concur; Hill, J., dissents, with an opinion, in which Hinman, J., concurs.
Dissenting Opinion
(dissenting). I dissent. The order which appointed receivers directed them to take possession “ of all and singular the railroads, rolling stock, franchises, liens, claims, rights, interests, leaseholds, property, premises and assets of every name and nature, real, personal and mixed, and wherever situated, * * * and they are hereby authorized and directed * * * to preserve, manage, operate and use the same, to run and operate the rail
Hinman, J., concurs.
Order affirmed, with ten dollars costs and disbursements.