131 Misc. 618 | New York City Court | 1928
This is plaintiff’s motion for judgment on the pleadings under the provisions of rule 112 of the Rules of Civil
The answer denies knowledge or information as to all the material allegations, and for a separate and distinct defense sets forth that the defendants were never personally served in the State of New Jersey, that they have never appeared personally or by attorney, nor have they authorized any one at any time to appear.
The first difficulty to present itself is as to the competency of the plaintiff, Desso Horvath, to sue through a “ next friend ” appointed by and who is an officer of a foreign court, and who has not qualified to or been empowered in this court by either a primary or ancillary appointment. Obviously, as our practice does not sanction a suit through a “ next friend,” it would seem that the usual procedure, such as for the appointment of a guardian ad litem, must be adhered to. While defendants have not raised this objection, and while, under the circumstances, this omission may be treated as a mere irregularity, and not as a jurisdictional defect (Allen v. Fink, 211 App. Div. 411), it seems prima jade sufficiently serious to invalidate a judgment, if not seasonably corrected. (Byrnes v. Byrnes, 109 App. Div. 535; Freyberg v. Pelerin, 24 How. Pr. 202.)
The third difficulty flows out of the sufficiency of the denials that the defendants “ have knowledge or information sufficient to form a belief.” While there is abundant authority that denials couched in such language are ordinarily ineffective, still this doctrine has its limitations, which are grounded on the underlying reason for the doctrine. It cannot be said here that the matters alleged in the complaint are presumptively within the knowledge of the defendants, such as personal transactions had with them. (Bloch v. Bloch, 131 App. Div. 859; Purdy v. City of New York, 126 id. 320; Singer v. Effler, 16 Misc. 334; Thorn v. New York Cent. Mills, 10 How. Pr. 19.) Nor can it be said that the defendants, in availing themselves of this form of denial, are chargeable with intentional ignorance in a matter wherein it is their duty to learn the facts, or the facts are at hand and easily accessible. The defendants are surely not affected with notice, either actual or constructive, of the public records of the State of New Jersey. Are they not, therefore, honestly without knowledge or information? (Morgan & Co. v. Quo Vadis Amusement Co., 45 Misc. 130; San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453; Snyder v. White, 6 How. Pr. 321; Mack Paving Co. v. City of New York, 142 App. Div. 702; Kirschbaum v. Eschmann, 205 N. Y. 127.)
The fourth difficulty revolves about the validity of the above-quoted statute of the State of New Jersey, upon which the central jurisdictional fact for the rendition of the pleaded judgment is predicated. Generally speaking, the constitutionality of this and similar legislation in at least four other States has been upheld in the United States Supreme Court, as not being in contravention
In line with these decisions the -validity of the statute of Massarchusetts requiring non-resident motorists to carry indemnity insurance has likewise been upheld. Such statutes are held to be proper expressions of the police power applicable against nonresident users of the roads of a foreign State, because the automobile is peculiarly a source of danger to life and property. The action must arise out of the use of the car. The compulsion in selection of a forum is not in contravention of due process, and there is no discrimination, if and so far as residents and nonresidents are kept on an equal footing.
The potential jurisdiction arises not out of (1) personal or other valid service (Pennoyer v. Neff, 95 U. S. 714; or (2) residence or domicile, whether temporary or permanent; or (3) voluntary appearance; or (4) consent, or the fiction of implied consent; but under what may be best called (5) subjection to the jurisdiction on account of conduct within the State. In this respect these statutes are comparable to those regulating the business of foreign corporations within the State, or the businesses of individuals under license, although these latter are not expressions of the police power. (Flexner v. Farson, 248 U. S. 289; Sligh v. Kirkwood, 237 id. 52.) But there is a profound difference between this statute of New Jersey and the statute of Massachusetts in pari materia. The Massachusetts statute makes meticulous, specific and precise provision for substituted service to insure’notice to the defendant. Its pertinent words are: “ 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.” (Stat. Mass. 1923, chap. 431, § 2.)
Another feature of this statute, which is referred to with approval in the opinion of the United States Supreme Court (Hess v. Pawloski, supra), is the beneficent provision that the court may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action, thus apparently casting
The New Jersey statute is entirely lacking in any provision requiring notification to the defendant of such litigation pending against him in such State and duly commenced by the service of process upon its Secretary of State. The opinion of Mr. Justice Butler in Hess v. Pawloski (supra) must be apparently read as a recognition of such notice as a constitutional requirement, because it distinctly sets forth, as one of the reasons for holding such statute valid, that it provides “ that he [the defendant] shall actually receive and receipt for notice of the service and a copy of the process.” Such a statute, omitting these provisions for notice to the defendant, would be clearly invalid if made applicable to a resident of the State of New Jersey, and is, therefore, obnoxious to the constitutional provisions with respect to the equal protection of the laws, due process of law, and equal privileges and immunities. (McDonald v. Mabee, 243 U. S. 90; Flexner v. Farson, supra; Zeikus v. Florida East Coast R. Co., 144 App. Div. 91.)
The motion must be denied, with costs.