McKeever v. Supreme Court of Independent Order of Foresters

106 N.Y.S. 1041 | N.Y. App. Div. | 1907

Miller, J. :

The defendant appeals from a judgment of the Municipal Court,rendered- upon- .its default, and asserts that the--plaintiff failed to show personal service of the summons upon it. The only proof of service was a written admission'signed by " the Superintendent of . Insurance of service “ of process . * * * in behalf of Janies J. McKeever as admr.,” etc. But this alleged admission" of'service was fatally defective as it did not identify the process served. The complaint alleges that the defendant is a foreign corporation, but there'is no allegation that it, has an. office in the city of Mew York, as it would have to have in order give the Municipal Court jurisdiction (Mun. Ct. Act, § 1, subd. 18^*), nor is there any proof -that it is an insurance corporation: or that it has executed and filed the written appointment- provided.for in section 30 of the Insurance Law (Laws of 1892, chap. 690). We do not assent to- the proposition argued.by the appellant that service of the summons on the Superintendent of-Insurance, at Albany would not give the court jurisdiction in any case, for not being service within the • city but think that such service would-have to be deemed service within the city in case' the Other jurisdictional facts were shown. ' In other words, :said section 30 of the Insurance Law was intended to provide a way of obtaining personal service on a foreign insurance corporation,'and stick' service should be deemed to be made within the territorial jurisdiction of the court issuing the process. But. this judgment must be reversed for failure to show the- jurisdictional facts hereinbefore stated.

Hirschberg, . P.' J., Woodward, JeHks and Hooker, JJ., concurred.

Judgment of the'Municipal Court reversed, with costs.

* See Laws of 1902, chap. 580, § 1, subd. 18, as amd. by Laws of 1905, chap, 513.-- [Rep.