197 A.D. 340 | N.Y. App. Div. | 1921
This action was brought by the plaintiff,- a New York lawyer, to foreclose his alleged hen upon the settlement by the defendant, the United States Director General, operating the Lehigh Valley railroad, of the cause of action of the said appellant as administratrix, etc., to recover damages for the death of her husband, killed in Jersey City while in the service of defendant’s predecessor in the operation of said railroad, his death being alleged to have been caused by the negligence of defendant’s said predecessor in that operation. The complaint in this action, in addition to the above-recited facts, further alleges, (a) that the said McDermott as such administratrix retained the plaintiff to take and prosecute legal proceedings against the Director General to recover such damages, and agreed to pay the plaintiff for his such services one-third of any amount that might be recovered by settlement or verdict or judgment; (b) that under that retainer plaintiff brought in her name as such administratrix an action against said Director General in the United States District Court for the District of New Jersey to recover the sum of $100,000, and that the said Director General appeared in said action and made and filed his answer therein; (c) that thereafter, on or about May 1, 1920, he settled said action with her by paying her the sum
The moving affidavits, upon which the original order for service by publication was made, served only to emphasize the fact that the appellant is a resident of New Jersey, and has been such continuously for the last twenty-five years, and cannot be served personally within this State. Summons and complaint herein were duly served upon the other defendant personally within this State on February 14, 1921.
The contentions of the appellant here are, and at the Special Term upon the motion to vacate were, (a) that this court has no jurisdiction of the action, as the cause thereof arose entirely in New Jersey and the settlement was made there; and (b) that it has no jurisdiction over the appellant and could acquire none by service by publication. The latter point appears to be the real one involved.
The law of the matter was, quite recently (March, 1921), clearly expressed by the Court of Appeals in its decision and opinion (written by His cock, Ch. J.) in Hanna v. Stedman (230 N. Y. 326). In that case a fraternal beneficiary association, having at all times its principal office in this State, was by the recent death of one of its members indebted to someone in the sum of $1,000, the stipulated benefit. Under the cireum
Upon the argument, being at least in a general way advised of this definition or rule, I was much impressed that that test would negative this action for the reason that the alleged fund, viz., the $15,000 of the settlement, was by the complaint alleged to have been actually paid over to the appellant, and, therefore, of necessity could not be in the possession of the other defendant when the action was commenced; and that, therefore, the action should be deemed one in equity to charge the Director General with the amount of plaintiff’s Hen, upon the theory that he, in violation of plaintiff’s right, had paid the entire fund over to the defendant McDermott; and that, therefore, the action was really one to enforce against the Director General a personal liability. This means that I was disposed to regard the case as practically like the Hanna Case (supra). However, I find that, as claimed by the learned counsel for respondent here, it has been held clearly by our courts in this State that under such circumstances and in such an action the defendant company (here the Director General) must conclusively be presumed to have retained in' its actual possession enough of the settlement fund to meet and discharge the Hen. (Sargent v. McLeod, 209 N. Y. 360, 365; Oishei v. Pennsylvania Railroad Co., 117 App. Div. 110, 114; affd., without opinion, 191 N. Y. 544.) The latter case was precisely like this, except that, while the accident happened in the State of New Jersey, the original action was brought in this State, and presumptively the settlement made therein. I cannot conceive that that makes any difference. This action as brought is clearly one in rem, and no personal judgment against the appellant is asked. It seems to me that, if it must be conclusively presumed that the defendant, the Director General, has actually retained and still has in his possession the identical $5,000 upon which the plaintiff claims a Hen, plaintiff may maintain his action in this State to foreclose his Hen upon that fund as “ one affecting specific per
Of course, in this case the question of the reasonableness of the amount claimed by plaintiff against an estate has not yet arisen.
Therefore, I advise that the order appealed from be affirmed, with ten dollars costs and disbursements.
Blackmar, P. J., Putnam, Kelly and Jaycox, JJ., concur.
Order affirmed, with ten dollars costs and disbursements,
See N. J. Laws of 1914, p. 410; chap. 201; Comp. Stat. N. J. Supp. 1911-1915, p. 898, § 6; Judiciary Law, § 475.— [Rep.