104 N.Y.S. 185 | N.Y. App. Div. | 1907
Lead Opinion
The defendant insurance company, although it lias been properly served with the summons, attacks the order directing the service by publication of, the summons upon its non-resident' ’codefendants,, upon the .ground that such service will not be effective and a judgment so obtained will not be binding upon the defendants served in . - that manner. ’ -
The action is brought - upon a life insurance policy of $5,000, / issued by the insurance company. and delivered in, -this State to a resident thereof, who assigned. the same with the consent of the ■ insurance company in- the State, the assignee also being a resident thereof. ' The policy is now in the State and held and- 'owned, as the complaint alleges,, by the plaintiffs, who are .trustees'under the • will of the assignee and are likewise residents of the State. ■ The' • assignment was made as collateral security .for premiums advanced by the assignee upon the policy, amoun ting to about the sum. of - $,4,500, and which is the. sum claimed by the plaintiffs, leaving due ■ to the beneficiaries about $5.00, to which the plaintiffs make no claim. The"beneficiaries are'made’-codefendants with the insurance company’. ’ They. are all non- residents of this State, residing in the ■ ' States of California, Iowa, Missouri a'nd Colorado., The insurance company is a foreign corporation incorporated under the laws of the State of New Jersey, hut does business in this State under a license issued by the Superintendent of Insurance, and is subject to the laws of. this State as regards-the business done libre, having, made' deposits,of securities with the Superintendent of Insurance for the protection, of its policyholders and appointed him as its agent and attorney,- upon whom all process may be served the same . as though the insurance company were a- domestic corporation..
The policy does not seem to fix a particular place of payment by its terms. ■ ’’ . ’ ' ’ •
The insurance company admits its liability upon the policy.upon, which the plaintiffs’ cause of action is based.,. It contends, however, • that there are conflicting claimants to the insurance -moneys and sets, up in its answer, the pendency of another’action by its codeféndr ■
The motion to vacate the order of publication was made on the same papers upon which the order was granted. Whether the defendants upon whom such substituted service was directed to be made have been served does not appear, nor is there any suggestion in the record that they may not appear and waive any infirmity in the order, if any there be, or that they have not already done so. Under these circumstances it may well.be doubted that the question raised by the, insurance company is properly before the court 'for determination. JSTeither is it at all certain that the action may not proceed against the insurance company alone in the event that the plaintiffs will be unable to obtain service of the summons upon its codefendants, or that they do not voluntarily appear in the action. It is true that the plaintiffs have made them parties defendant, and the judgment demanded Indicates that the relief sought is to declare a lien upon the policy of insurance and the moneys due thereon, to the amount of the plaintiffs’ claim. If the plaintiffs • have not the legal title thereto, but only an equitable interest therein, very likely the individuals who have the legal 'title áre required to be made parties to the action with the insurance company. (Steinbach v. Prudential Ins. Co., 172 N. Y. 471.) The facts set forth in the complaint, however, seem to warrant the conclusion that the defendants impleaded with the insurance company, while proper parties, may not be necessary parties to the action, and if so the action may proceed without them. Although the assignment was made and the policy is now held as security for the payment of moneys advanced by the assignee as premiums upon the policy, still if the assignment vested the title thereto in the assignee, payment by the insurance company to the plaintiffs of the amount due them thereon would be a satisfaction and discharge of the claim to the extent of such payment,
Assuming, however, that the insurance company may at this time ' and-in this manner question the validity of. the order, we are of opinion that the order was properly granted. The non-residence of the defendants directed to be served by publication ayd the inabil- . ity to serve personally in this State is-cohceded. The insurance' company urges that the subject-matter of the action is not specific • personal property Within the meaning of subdivision 5 of section 438 of the Code'of Civil Procedure, and, therefore, the judgment would be inoperative, since,non-residen;ce alone is' insufficient to'
Section 438 of the Code provides that an order directing the service of a summons upon a'defendant without the State, or by publication, may be made where the defendant is not a resident of the State, and also, among others :
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 Statutory Construction Law (Laws of 1892, chap. 677, § 4) defines the term personal property 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, 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.” -
It is, however, Urged on behalf of the insurance company that the subject-matter of this action is not personal property having a. situs within tliis State. As has already been pointed out; the insuranee company, although a foreign corporation, incorporated under the laws of the State of Mew Jersey, does- business in this State under a license issued by the Superintendent of Insurance and is subject to his supervision the same as a domestic insurance company. (Ins. Law [Laws of 1892, chap. .690], § 25, as amd. .by Laws of 1896, chap. 845.) It is required to keep securities on deposit with the' Superintendent of Insurance to be held in trust for the benefit of the policyholders. (Ins. Law, § 26.) It is also required to execute and file a written appointment of the Superintendent of Insurance as agent and. attorney in this State upon whom “ All lawful process '.in any action or proceeding against the corporation may be served with the same effect as if it was a domestic corporation. Service upon guch attorney shall thereafter be deemed service upon the corporation.” (Ins. Law, § 30.) The
The question of .the situs of intangible rights and claims of this character have frequently arisen in attachment proceedings and judgments based thereon' attacked for want of jurisdiction, where personal service of process was not made Upon the parties against or upon whose right or claim such process or adjudication was made.. We are well aware that the decisions .upon that' question may not .be in accord (20 Cyc. 1036, Í037), and we shall, not . attempt to. reconcile them. The courts of our own-State have frequently passed upon the question, and .the following cases , may serve as types of two classes, one where the. proceeding has .been held ineffective and void, and the. other where- the proceed-. . ing lias been- held valid. ’ (Douglass v. Phenix Ins. Co., 138 N. Y. 209 ; National Broadway Bank v. Sampson, 179 id. 213 ; India Rubber Co. v. Katz, 65 App. Div. 349; Lancaster v. Spotswood, 41 Misc. Rep. 19 ; affd., 86 App. Div. 627.). In the-first two cases it-was held upon the state of facts as there presented, that the attachment proceedings and -adjudication based thereon was -not effective, while upon another state of facts somewhat different' , -the last two cases held the attachment. good and the proceedings valid. The • facts of the two- classes of cases are alike in many ■ respects;; wé need nót stop to point out the precise difference.. We assume that they are in entire-harmony and accord, but think that the facts in this case are quite analogous to those in the last two • cases' and that this case is within that class where- the attachment was upheld and the seizure thereunder effective. The. question has been quite recently before the United States' Supreme Gourt in two
. The question was again presented in Louisville & Nashville R. R. Co. v. Deer (supra). In that case it appeared that the. ‘ railroad company did business and was liable to service and suit in the State of Florida, and was owing a resident of the State of Alabama. The creditor of the latter brought. suit in Florida, in which the .railroad company was summoned as garnishee, the Alabama creditor,’ the principal defendant therein, being served by publication only. A judgment was recovered; the railroad company paying the sum due thereon into court. Thereafter the Alabama creditor brought suit against the railroad company in the State of Alabama. The;Alabama court refused to recognize the Florida judgment and'the payment made thereon, and upon appeal to the United States Supreme Court that judgment was reversed, it being held that the Florida judgment was valid against the Alabama creditor, and that the Alabama court should have given full faith and credit thereto under the provisions of the Federal Constitution. It would seem, therefore, that under these decisions of the United
The suggestion is'made that the insurance, company having been incprporated under the laws of tlie State of Mew Jersey, it's domicile is' there, and this suit may be maintained in the courts of that State. Undoubtedly that is true, but it also has at least a, quasi domicile in this State.'. The very purpose of requiring it to deposit securities' and appoint.the Superintendent of'Insurance as its agent and attorney was to secure its policyholder^ and subject the company and its property within this jState to the jurisdiction of our courts. In the case of .New England Mutual Life Ins. Co. v. Woodworth (111 U. S. 138), where it appeared that the husband' of the insured commenced an action in the"State of Illinois against the . insurance company organized under the laws of "the State of Massachusetts upon a policy of insurance, the insured .having died in the ■State of Mew York, the plaintiff thereafter going into the State of Illinois and taking the policy with him, it was- held that the action was maintainable in the Ulinois court, and that the company might ■ be regarded as present and an'inhabitant of the State wheredt,bad an agent upon whom, pursuant to the laws of that State, process, might be served. . That case was cited with approval, and' 'the
If such an action as this is not maintainable in the courts of this State, and the insurance company may resist payment on the policy without making all of the persons' claiming an interest in the moneys due, thereon parties to the suit, serving them personally With process, it is difficult to see how the company can be compelled to pay at all, unless all of the persons are in accord and unite in one suit or voluntarily appear therein, since the claimants reside in five different -States. Certainly there is.no more reason for bringing the action in the California court than here.' ’
Tlie order should be affirmed, with ten dollars costs and disbursements. *
. All concurred, except Spring and Robson, JJ., who dissented in an opinion by Spring, J.
See U. S. Const, art. 4,"§ 1.—[Rep. . .
Dissenting Opinion
(dissenting):
■ . The appellant is a life insurance corporation organized in the State of Mew Jersey, but authorized to transact business within the State of Mew York. In 1886' it issued a policy of insurance to Elizabeth Á. Morgan upon the life of her husband, Orson A. Morgan. The policy provided that incase the wife died before the insured,, the amount of such insurance should be payable to his children. The ■ policy, by its terms, wgs forfeitable in the event of the failure to pay. the annual premiums stipulated in the instrument as they came due.
On the 26th of March, 1871, the said Morgans were unable to continue the payments of said premiums, and assigned the same and all money due ór to grow due thereon, with the assent ‘of the appellant, to one Dayton A. Morgan, upon' the agreement that said assignee pay said premiums, and the assignment was to be operative' ., until all sums paid by him for premiums, with interest, should be repaid to him. '. Relying upon said assignment, the said Dayton A, Morgan, and after his death his successors in interest now represented by the plaintiffs, continued to pay' all the premiums in accordance with the policy until the death of the insured in May, 1905 ; the aggregate sum so paid is $4,483.80, which the plaintiffs . seek by this action in equity to establish, with interest, as a lien upon said policy and the money payable by its terms. The wife of
The-insured and his wife, at the time of the issuance of the policy, were residents of the State of New York and were .'at' the time of the assignment thereof to. D. A. Morgan, who was also a resident of this State and continued to be until - l.iis death, and his will was admitted to probate in this State, and the plaintiffs, liis siiccéssers in "interest, also have their abode here. -
The assignee retained the policy and assignment until his- death and at the time of" the commencement of this action these papers were in possession of the plaintiffs by transmission from the assignee. * . '
An order' for publication of the summons to bring in these • nonresident children of the insured was granted by a justice of 'the Supreme Court, and a motion was made at Special Term- by the appellant to set aside this order, winch- motion was denied., • Since the commencement of this action the children of said . insured " have commenced an action in the ■ Superior Court- of California, which is a court of competent jurisdiction, to recover upon the policy issued by the defendant, and that action is now pending, due service having been made upon the appellant. ■ • ' :
The order fof publication was granted pursuant to section 438, subdivision 5, Code of Civil Procedure. , That section.provides that such an order may be made “'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 s.uch an interest or lien in favor of either party . be enforced, regulated, defined, or limited; or otherwise affecting the title to such property.”
The point of .the controversy before us -on this appeal is whether-this policy of insurance is “ specific """ * • ^ personal property within the State,” and-the .proposition is a very■ troublesome" one.
' ' The policy, as already noted, was delivered in this State and -the . first intended beneficiary and the insured resided here. Upon the death of the insured his children became the beneficiaries and they are' the creditors and the-insurance-company the debtor.. The plaintiffs are not creditors of the" insurance company. Day-ton- S.
The'proposition is 'quite firmly established that the situs of a debt is at the Abode of the creditor. (Douglass v. Phenix Ins. Co., 138 N. Y. 209.)
There is an exception in favor of the creditor of a non-resident creditor in attachment proceedings whereby the situs of the debt is at the domicile of the debtor. .In this case the domicile of the debtor is in Mew Jersey, unless something-in. this transaction, or . because it does business in. this State, makes its domicile here.
Undoubtedly the appellant could be sued in this State on this insurance contract. Mo one questions that. ■ The privilege of doing business is accompanied with the necessity of submitting- to our ■jurisdiction. It has been sued and answered. The plaintiffs are, however, endeavoring in a suit in equity to have determined the rights of conflicting claimants to the- debt due because of the policy. The complaint shows the interest of the non-resident claimants and their- presence in the action-is essential before a complete determination ' of the case can be. had; (Steinbach v. Prudential Ins. Co., 172 N. Y. 471.)
The burden is upon the plaintiffs to bring in these parties (Mahr v. Norwich Union Fire Ins. Society, 127 N. Y. 452); and they; .realized this necessity for they- have made them defendants in name, and by the order of publication-claimed to have acquired jurisdiction over them sufficiently.to enable the court to determine the extent' of their interest, if any, in this debt evidenced by the policy of insurance. '
. ■ The presence of the policy is not essential to the maintenance of the action,, although a circumstance in aid of it. The res, or' substantial thing, is the debt.. of which the. policy .is. the evidence. Administrators of an intestate maybe appointed in several -States and claimants of the-insurance may reside in each of them and may bring actions at their places of residence to recover the amount due by the terms óf the policy. The present case is hot of .that class. The action is in equity based upon the averment of an indebtedness ' to the plaintiffs’ assignor secured by the policy; and the purpose of - the action is to establish the, claim of the plaintiffs by reason of the premiums . paid and make the claim a paramount - lien upon the policy and the debt. The controversy is not with thfe. insurance company, but with the non-residents they desire to bring within our State to enable the litigation to be carried on. The only interest the insurance-company ..'has is to be certain that, the non-residents are brought within the judicial .'domain .of this State so that the judgment in rem, will be effective and'.a bar to any action by the children of the insured to whom, upon the face of the.policy, the insurance moneys belong. ;
.' •. If this were an action at law to recover the amount .due by the , .terms of. the policy a different proposition might be presented from . the one with which we now have to deal. ... ■ ’
. Á levy under a - warrant .of attachment is made upon personal property where manual delivery can be had, “ including-a bond, promissory note, or other instrument for the payment of money, by . taking the same into the sheriff’s actual custody.” (Code Civ. .Broc.-§ 649, snbd. 2.) “Upon other personal, property, by leaving a certified Copy of the warrant * * * with the person-holding the same;” or if the property be a demand-“ other than as specified in the- last subdivision, with the person against' whom it exists.” (Id. subd. 3.)
In these subdivisions, therefore, distinct classes of personal prop-’ erty- require different modes of service. Where the property is
In Trepagnier & Brothers v. Rose (18 App. Div. 398) it was held that a fire insurance policy under which a loss had occurred and been adjusted was not an instrument for the payment of money within subdivision 2 of section 649. Upon appeal to the Court of Appeals (155 X. Y. 637) the question certified was as follows : “Is a policy of fire insurance under which a loss has occurred which" has been adjusted, and under which nothing remains to be done but the payment by the insurer to the insured of a fixed sum of money, an instrument for the payment of money ’ within the meaning of subdivision 2 of section 649 of the Code of Civil Procedure, and is a valid levy under a warrant of attachment made on such a policy by serving a certified copy thereof on the proper officer of the insurer, the policy itself not being taken into the sheriff’s actual custody ? ” The court answered the first branch of the question in the negative, and the second in the affirmative. The effect of the decision, therefore, was that an insurance policy is not property capable of manual delivery, but the debt which it represents is the res or property right. The same principle was recognized in Kratzenstein v. Lehman (19 App. Div. 228).
In these cases in construing subdivision 2 of section 649 there is no suggestion that an insurance policy is personal property capable of manual delivery unless it comes within thé definition of an instrument for the payment of money. ' It, therefore, must be a mere evidence of the obligation instead of the debt or demand itself.
In New York Life Ins. Co. v. Universal Life Ins. Co. (88 N. Y. 424), in construing section 1778 of the Code of Civil Procedure, it was held that a policy of life insurance is not “ evidence of debt for the' absolute payment of money upon demand, or at a particular time ” within the meaning of that section.
A. foreign insurance corporation retains the domicile of its origin
In Douglass v. Phenix Ins. Co. (138 N. Y. 209) an insurance corporation issued a fire insurance policy to a resident of Franklin county in this State upon .property in that county, which was destroyed by fire, the loss exceeding the amount of the insurance. The insurance company was doing business in the State of Massachusetts with an agent upon -whom process might be served. An action was commenced in that State by a creditor of. the insured against Kim and the insurance corporation, and a levy was claimed, to have been made upon the debt evidenced by the policy of insurance pursuant to the warrant of attachment; The insured commenced an action in .this State on the policy, and the insurance company answered, pleading.the Massachusetts attachment action, and alleged, that by the levy the debt became subject to the control of the court in that State. The plaintiff demurred and the demurrer was sustained by the Court of Appeals.' The court, in passing upon the effect of the-appointment of an agent in that State, say (at p. 220): “Tt has been held that by such act the corporation does not change its domicile ■ of origin or its residence. It becomes bound -by judgments rendered upon service on the designated agent, because it has consented so. to be bound, but-it remains as before abresident-of. the State where it is incorporated.” Further, in commenting upon the -question of jurisdiction : We think the rule is that a domestic corporation at all times has its exclusive residence and domicile in the jurisdiction of origin, and "that it' cannot be garnisheed in another jurisdiction for debts owing by it to lióme creditors, so as to make the attachment effectual against its creditor in the absence of jurisdiction. acquired over the person of such creditor. * - * * This, court has" disclaimed jurisdiction in the courts of this State to attach debts Owing by a-foreign corporation, or interests-in the stock'of such corporations, belonging to non-residents, by notice or process served on the agents of such corporations in this State.”
In Plimpton v. Bigelow (93 N. Y. 592) shares of stock Owned
“We are, therefore, of the opinion that the fundamental condition of attachment proceedings, that the res must be within the jurisdiction of the court in order to an effectual seizure, is not answered in respect to shares in a foreign corporation by the presence here of its officers, or by the fact that the corporation has property and is transacting business here.”
These cases are reviewed at length.and affirmed in National Broadway Bank v. Sampson (179 N. Y. 213), and the court says (at p. 225): “ It seems clear that a debt, to.be subject.to attachment, must have a situs somewhere and can be impounded only in the jurisdiction where such situs exists, which is clearly where either the creditor or debtor resides. The laws relating to attachments do not authorize a proceeding in this State to seize a credit owing to a resident of another State, where neither the creditor nor the ■ debtor is a resident' here. Mor, as we have seen, could the State make a debtor a resident by. so declaring, when such was not the fact.” (See Von Hesse v. Mackaye, 55 Hun, 365; affd., on opinion below, 121 N. Y. 694.)
All these cases recognize that the situs of the debt is ordinarily ’ that of the creditor, except that in attachment proceedings it may • be at the domicile of the debtor. As already stated, the residence of none of the creditors is in this State and the domicile of the debtor is Mew Jersey. It seems to me that the scope of. the prevailing opinion is fundamentally erroneous in deciding that these lienors are creditors, of the insurance company. They are creditors of the Morgan representatives, but not of the appellant.
The plaintiffs would have proceeded by attachment if the policy had not been in their possession, if the position they contend for is
The proposition is fundamental that in proceedings to reach property of a non-resident, it must be within the State. If it be a bin of grain or a pile of iron ore, it is tangible and the judgment can readily fasten upon it, or it can be delivered to the judgment creditor. If the property is intangible, it is ecpially leviable by warrant of attachment, only the res must- be within the State. If it be a note or instrument for the payment of money, manual delivery is possible. If it be a debt of a foreign corporation, not represented by a note, the debt follows the domicile of the body corporate and judgment must be awarded in its State.
The manner.of service provided in subdivision 3 of section 649 of the Code of Civil Procedure denotes that the paper, whatever, it may be, is of no more than nominal value when disconnected from the demand itself, unless the instrument be for the • payment of money. Of course, an action of replevin or trover would lie to recover an insurance policy if wrongfully taken from the. custody of its owner. Its-recovery might not establish the title.to the money due on it. A like action would be maintainable to recover a deed converted from tlie true owner, but the value of the deed would not be the value of the premises described in it, and the title of the premises would be unaffected by the judgment, especially if. they were in another State.
The only importance of the present action is to determine the rights of the parties to the money due, according to the terms of the policy. The money is in New Jersey, and that is the “ specific * * * personal, property ” which the plaintiffs are after. The controversy is between them and the other claimants. Jurisdiction of the insurance company is readily obtainable, but not of these non-resident claimants.
Actions have .frequently been maintained against life insurance companies, even where they might be subject to other actions, and, consequently, expense and embarrassment be caused to them. (Sulz v. Mutual Reserve Fund Life Assn., 145 N. Y. 563 ; New England Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138 ; Equitable Life Assurance Society v. Brown, 187 id. 308.)
■ In the prevailing opinion the recent cases of Harris v. Balk (198 U. S. 215) and Louisville & Nashville R. R. Co. v. Deer (200 id. 176) are relied uponin support of the validity of the order appealed from. Harris and Balk were both residents of North Carolina, and Harris owed Balk $180. Balk was indebted to Epstein, a resident of the State of Maryland. Harris was in Maryland on business, and Epstein caused a writ of attachment to be issued out of the proper court attaching the debt of Harris to-Balk. Harris was personally served with the process. He returned to North Carolina before the return day of the writ, but made an affidavit that he was owing Balk $180, and by his counsel in Maryland consented in the attachment suit to an order condemning him for $180 as such garnishee, and judgment was entered and paid by him. Balk sued Harris in North Carolina to recover the debt, and the latter pleaded the Maryland judgment in bar, was defeated in the trial court, and the judgment was affirmed in the State court on appeal, but was reversed by the Hnited States Supreme Court.
To comprehend the decision it is essential to refer to the Maryland statute permitting the writ of attachment. Section 10 of article 9 of the Code of Public General Laws of the State of Maryland in designating the kind of property capable of being impounded by writ of attachment provides: “Any kind of property or credits belonging to the defendant, in the plaintiff’s own hands, or in the hands of any one else, may be attached ; and credits may be attached which shall not then be due.” The court, in commenting. upon this in 198 Hnited States, say (at p. 224): “ Where money or credits are attached the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him. (Buschman v. Hanna, 72 Maryland, 1, 5, 6.) Sec
The foundation of the decision is, therefore, that by the Mary-' land statute jurisdiction was acquired of the debt due from Harris to Balk. By the statute itself the res followed the debtor. For . the purpose of showing the paramount necessity, of .the local court, possessing power to garnish the debt this significant language is used (at p. 222): “ Attachment is the creature of the local law; that is, unless there is a law of the State providing for and permitting the attachment it cannot be levied there. If there be a law of the State providing for the .attachment of the debt, then if the garnishee be.found in that State, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over . ■ him, and can garnish the debt due from him to the debtor of the . plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that State,” •
If by subdivision 5 of section 438 of the Code of Civil Procedure, which is'the authority for the present order, specific personal property had been defined and a policy of life insurance included in the enumeration, jurisdiction would have been acquired and Harris v. Balk would have been germane.
A credit is not subject to seizure by attachment in this. State., As was said in National Broadway Bank v. Sampson (supra at p. 225): “ The laws relating to attachments do not authorize a proceeding in .this State to seize a credit owing to a resident of another State, where neither the creditor nor the- debtor is a resident here.” •The opinion in Louisville & Nashville R. R. Co. v. Deer (supra) simply follows the decision in the Harris case, although the court is particular to state that the attachment proceedings strictly conformed to the State statute.
It is suggested also in the prevailing opinion that the record does not disclose that substituted service of the summons has been made upon the non-resident defendants in pursuance to the order. The motion to set aside the order was -made' on the papers upon which the order was granted. It was conceded on the argument in
It assuredly does not follow that the plaintiff would be remediless if the present action is not maintainable. The situs of the debt is in Mew Jersey and all the rights of the parties may be determined within that jurisdiction.
The order should be reversed.
Robsok, J., concurred.
Order affirmed, with ten dollars costs and disbursements.
