189 N.Y. 447 | NY | 1907
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The interest of the plaintiffs' assignor, Elizabeth A. Morgan, in the policy of insurance was contingent upon *452
her surviving her husband. (Bradshaw v. Mutual Life Ins. Co.,
The defendants other than the insurance company are proper and necessary parties to this action. (Steinbach v. PrudentialIns. Co.,
Service of a summons upon non-residents of the state of New York may be made as provided by section 438 of the Code of Civil Procedure. It is therein provided as follows: "An order directing the service of a summons upon a defendant, without the State, or by publication, may be made in either of the following cases: * * *
"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 term "personal property" is defined by statute. Section 4 of the Statutory Construction Law (Chapter 677, Laws of 1892) provides as follows: "The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, *453 discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership. The term chattels includes goods and chattels." (Revised Statutes, part 4, title 7, chapter 1, sec. 33; Code of Procedure, sec. 463; Code of Civil Procedure [1880], sec. 3343, sub. 7.)
It is not necessary to consider to what extent, if any, the legislature simply by statutory definition or provision can treat intangible personal property as within this state and subject it to the jurisdiction of our courts as against persons not served with process within our territorial limits, because in this case not only are the plaintiffs as claimants residents of this state, but the debtor and the debt as well as the written instrument by which the debt was created, acknowledged and evidenced are in contemplation of law within this state.
A foreign insurance company is not allowed to do business in this state until it submits itself fully to the jurisdiction of our courts. It must obtain from our superintendent of insurance a certificate authorizing it to do business in this state. It is subject to examination by the insurance department of this state and it is required to deposit with the superintendent of insurance of this state or with the auditor, comptroller or general fiscal officer of the state by whose laws it is incorporated, stocks and bonds as provided by our statutes to the same amount as required by domestic insurance corporations, which stocks and bonds are held in trust for the benefit of all the policyholders of the corporation. A foreign insurance corporation is also required to appoint our superintendent of insurance its attorney in this state upon whom all lawful process in any action or proceeding against the corporation can be served. The authority of such foreign insurance corporation must be revoked in case it applies to remove into the United States court any action brought against it in a court of this state. Our statutes expressly provide that an action against a foreign corporation may be maintained by a resident of the state or by a domestic corporation for any cause of action. Such an action may be maintained in this state by *454 another foreign corporation or by a non-resident when the action is brought to recover damages for the breach of a contract made within this state.
The presence of the insurance company in this state is not temporary, but continuous. It is legally and actually here, not only because process has been served upon it and it has appeared in the action, but it is here pursuant to the provisions of our statutes by authority of which it is doing business and maintaining offices in this state. The contract of insurance was made by it with a resident of this state through its agents so located and doing business here. Every transaction relating to the contract, its assignment and the payment of premiums thereon has occurred here. The policy of insurance and the claim against the insurance company for the amount payable on the policy of insurance are in the control of our court and any judgment that may be rendered in the action can be enforced and made effectual in this state. As to such a claim the insurance company should be treated as a domestic insurance company and as domiciled in this state. The situs of the debt would consequently be here and the action is one to define and enforce an interest in specific personal property within the state within the meaning of the Code provision quoted. Whenever a question as to the situs of a similar claim against an insurance company doing business in a state pursuant to the statutes thereof has been directly involved in this court or in the Federal courts, and it has been sought to uphold the situs of the claim in the state where the contract was made, it has been sustained.
In Martine v. International Life Insurance Society (
In New England Mutual Life Insurance Company v. Woodworth
(
In Sulz v. Mutual R.F.L. Association (
This court called attention to the fact that the action was properly commenced in the state of Washington prior to the commencement of the action in this state and further say: "We think the courts of the foreign state have obtained jurisdiction, and therefore could give a full and complete discharge to the company if it paid upon a judgment obtained in such action, and we ought not to permit a second action in the courts of this state upon the same policy. In such a case as this we think that the principle of comity between the states calls for the refusal on the part of the courts of this state to entertain jurisdiction." *457
In the recent case of Matter of Gordon (
The decisions in New England Mutual Life Insurance Co. v.Woodworth (supra) and in Sulz v. M.R.F.L. Association
(supra) are referred to and approved, and the court further say: "The policy throughout the different states of compelling an insurance company seeking to do business in one of them, to submit to the jurisdiction of its courts, by provision for a substituted service upon some person, has been widespread, deliberate and very exacting. It was intended to obviate the possibility that an individual procuring insurance *458
at the place of his domicile should be compelled for enforcement of his contract to go to some distant forum and become subject to the embarrassments and burdens which might result therefrom. It was designed to give to the insured or his representatives or assigns full opportunity to enforce the contract of insurance at the place where it was accepted and to give to the state wherein he resided just as complete jurisdiction over the insurer as was possessed by the state wherein it was organized. We feel that we are entirely justified in the view that this class of legislation was distinctly intended to abrogate that very idea that the insured could only obtain redress by resorting to the laws of the state wherein the insurance company had its organization and principal place of business, which is made the basis of taxation in the decisions cited." (See, also, Harris v. Balk,
The appellant relies principally upon statements taken from the opinions in Plimpton v. Bigelow (
In Plimpton v. Bigelow both the plaintiff and defendant were non-residents of this state. The action was brought upon promissory notes. The plaintiff procured an order for the service of a summons upon the defendant by publication, and also a warrant of attachment against his property. The sheriff undertook to execute the warrant of attachment by levying upon certain shares of stock owned by the defendant in a Pennsylvania corporation. The stock certificates were in the possession of the defendant in Pennsylvania, and the only service of the warrant of attachment consisted in leaving copies of the papers with the secretary of the corporation in the state of New York.
In Douglass v. Phenix Insurance Company the action *459 was brought upon a policy of fire insurance issued in this state by the defendant, a domestic corporation. The policy was executed to a resident of this state covering property in this state. The property insured was destroyed by fire, and the plaintiff brought this action on the policy. The defendant set up in its answer that the debt owing by the defendant to the plaintiff had, prior to the commencement of this action, been attached in the state of Massachusetts in an action brought against the parties in this action and the insurance company to recover a debt owing by the plaintiff to the attaching creditors, and that said Massachusetts action was still pending.
In Carr v. Corcoran a resident of the state of Ohio brought an action in this state against a resident of the state of Pennsylvania and attempted to attach alleged indebtedness of the defendant by a resident of the state of Pennsylvania temporarily in this state.
In National Broadway Bank v. Sampson the suit was in aid of an attachment claimed to have been levied in this state upon a debt owing by a Massachusetts limited partnership to a Massachusetts corporation. The warrant of attachment was not served upon all the partners.
In Von Hesse v. Mackaye the action was brought to recover the possession of railroad bonds that were not actually within reach of the court.
The facts in each of the cases last mentioned are entirely different from the facts in the case now under consideration, and any statements in the opinions in such cases that are or seem to be opposed to the other authorities cited or to the conclusion reached herein were obiter and not binding upon the court.
The order appealed from should be affirmed, with costs, and the question certified to us answered in the affirmative.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN and HISCOCK, JJ., concur.
Order affirmed. *460