Miller v. Jones
22 N.Y.S. 86
N.Y. Sup. Ct.
1893
Check Treatment
MERWIN, J.

The trial court in substance found that the plaintiffs had performed their part of the contract; that under it they were entitled to have the title of the patent remain in Thomas D. Jones; and that the transfers to Mrs. Jones and .to the corporation were without the consent of plaintiffs, and were in violation of their rights. Mrs. Jones, appealing from the judgment, takes issue upon all these propositions. They are the main ones upon the merits. The trial court was, I think, correct in its construction of the contract. Its plain object was to place in the two parties to the contract the entire beneficial interest in the patent and its proceeds, except as to certain specified countries. The fact of this exception indicates the intent. The plaintiffs were likely to be called on for large expenditures, as security for which they had only the proceeds of the patent or profits in sales. ■ It would hardly be reasonable to suppose that either party then intended that the patentee could, whenever and on what terms he chose to, dispose of any part or the whole of the patent, and thus practically deprive plaintiffs of their security. Whether the plaintiffs had performed upon their part, and whether the transfers were without the consent of plaintiffs, and therefore in violation of the contract, were, upon the evidence, questions of fact, and upon those the conclusions of the trial court should not be disturbed. Some of the allegations in the complaint were quite general, but no objection upon this basis was made. There is no question about the right of a state court to set aside such assignments.

But it is claimed that the court had no jurisdiction to render the judgment by reason of the nonresidence of the corporation and of the defendant Thomas D. Jones. No defense upon this basis is set up. Assuming, however, that the appellants are in a position to raise the question, the case shows that service of the summons and complaint was made upon the defendant, the Jones Positive Nut Lock Company, by service within the state upon the secretary of the company. This method of service is authorized by section 432 of the Code,1 and operates to give jurisdiction to the court, and it is not needful, in order to make the service effective, that the corporation should have any property within the state, or that the cause of action should have arisen therein. Pope v. Manufacturing Co., 87 N. Y. 137; Gibbs v. Insurance Co., 63 N. Y. 114. In the Pope Case it is said that a judgment *89against a corporation in an action so commenced will be valid for every purpose within this state. In the Gibbs Case it is said that such action and judgment should be general. in character, not directed against any particular property. But it is suggested that the evidence does not show the legal existence of the corporation, or that the person served was secretary. There is evidence that tends to show those facts, and it is found upon the request of the appellants that the corporation was in existence at the commencement of this action, and that after the organization of the corporation Anderson (the person served) was elected secretar}' of the company. Thomas D. Jones was served by publication under section 438 et seq., and it is claimed that the service was insufficient to give jurisdiction, because no attachment was issued, and the property to be affected was not, as the appellants claim, within the state The order for publication was made both under subdivision 1 and subdivision 5 of section 438.2 If made under subdivision 1 there would seem to be no requirement for an attachment, except in case a judgment was sought for money only, (section 1217, Code,) which is not this case. Assuming, however, that the order of publication can rest only upon subdivision 5, (Von Hesse v. Mackaye, 55 Hun, 365, 8 N. Y. Supp. 894, affirmed 121 N. Y. 694, 24 N. E. Rep. 1099,) the question is whether a case is presented that is fairly within that subdivision. That subdivision reads as follows: “(5) Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state, or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited, or otherwise affecting the title to such property.” The counsel for appellant says that, “while the complaint states a cause of action concerning specific personal property in this state, the proof for judgment merely fails to establish a cause of action.” The point, I suppose, is that, under the evidence, the property to be affected is not within the state. It is to be observed that the subdivision is not limited to chattels, but the more extensive term is used, “personal property.” The contract between plaintiffs and Jones, the construction of which was in issue, as well as the rights of plaintiffs under it, was executed in this state, and all parties then lived here, and the business was to be carried on here. The assignments which were sought to be set aside were executed and delivered here. They so appear upon their face. The plaintiffs’ cause of action, therefore, accrued here. Where the patent, the instrument itself, was at the time, does not appear, except it may be inferred that it was then at Syracuse, where the assignments were executed. Where it wras when this suit was commenced does not appear. The patent itself was not the invention, but evidence that the party had, under the law, a monopoly. The right to use is property, (Gillett v. Bate, 86 N. Y. 93,) and in its character it is personal. The plaintiffs, under their contract, had a property right, and in its origin and use it was within this state. The title of this was *90affected by the transfers in controversy, and the judgment operated to clear their title from the clouds upon it. In a certain sense their contract was a lease to run during the life of the patent, and the suit and judgment were to remove impediments to the exercise by plaintiffs of their rights. In view of the circumstances of this "case, it should, I think, be held that the action affected the title of personal property within the state.

The counsel for the appellant claims error in some rulings at the trial, but we find in them no sufficient ground for reversal. The appellants claimed a trial by jury, but clearly the suit was in equity, and no motion had been made to settle issues. The answer did not put at issue the existence of the corporation. Code, § 1776. It follows that no sufficient ground for reversal of the judgment appears.

The appeal from the order brings up substantially the same question as to the validity of the service on Thomas D. Jones by publication. Nothing further need.be said as to the validity of the order. A further question, however, is raised as to the sufficiency of the proof of service. After the order was .made, the papers were served personally on Jones, without the state. The affidavit of such service appears to have been made before a notary public. The appellants claim that the clerk’s certificate as to the official character of the notary was not sufficient to entitle the affidavit to be read under section 844 of the Code. That section provides that an affidavit may be taken without the state “before an officer authorized by the laws of the state to take and certify the acknowledgment and proof of deeds, to be recorded in the state; and, when certified by him to have been taken before him, and accompanied with the like certificates as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within this state, may be used as if taken and certified in this state, by an officer authorized by law to take and certify the same.” The clerk’s certificate in this case, instead of stating that the notary was authorized by the laws of the state to take and certify the acknowledgment and proof of deeds, stated that he “was duly commissioned, sworn, and acting as such, and authorized to administer oaths.” In other respects the certificate appears to be regular. This objection, as the record shows, was not raised- on. the motion made by these defendants, or on the trial. If it had been, it might have been obviated. No suggestion was made that Mr. Jones had not in fact been served without the state. On the contrary, it is very apparent that all parties assumed that such service had been made, and the controversy was as to the sufficiency of such service, there being no attachment, and the property not being, as the defendants claimed, within the state. The answer of Mrs. Jones was for the benefit of all the defendants, and was so stated by the attorney who appeared specially for them at the trial for the purpose of objecting to any judgment being rendered against them. The motion being made upon the case and exceptions as well as on the. judgment roll, the whole case was before the special term upon making the order. The defect in the certificate, if one existed, was such that it could be cured by producing on the appeal a proper certifi*91pate. Jarvis v. Sewall, 40 Barb. 450. I think the objection is not available. It follows that the order should be affirmed.

Judgment affirmed, with costs. Order affirmed, with $10 costs and disbursements. All concur.

This section provides that personal service of a summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within the state, as follows: (1) To the president, treasurer, or secretary, or, if the corporation lacks either of these officers, to the officer performing corresponding functions under another name.

This section enumerates the instances in which an order directing the service of summons upon a defendant without the state, or by publication, may be made.