85 N.Y.S. 449 | N.Y. App. Div. | 1903
The appellant insists that the amendment of section 2881 of the Code of Civil Procedure, made in 1895 (Chap. 349), which authorizes the service of the summons in a Justice’s Court upon a local agent of an insurance company residing in the county, when no other person resides in the county upon whom service can be made and when no person has been designated pursuant to such section npon whom process may be served, which is the case here, does not apply, as the jurisdiction of the City Court over defendants is fixed by the charter of Elmira, which it is claimed is not changed by amendments to those provisions of the Code relating to Justices’ Courts. The clause of the charter relied on to limit the jurisdiction of the City Court is section 105, which provides: “ Said court shall have the same jurisdiction over the persons of defendants as is now possessed by Justices’ Courts of towns pursuant to the provisions of section twenty-eight hundred and sixty-nine of the Code of Civil Procedure.” (Laws of 1894, chap. 615, § 105, as amd. by Laws of 1895, chap. 371).
If the position of the appellant is correct, jurisdiction by the City Court over the person of the defendant can only be obtained by service of process upon one of its officers, or upon a managing agent, as required by sections 2879 and 431 of such Code.
The City Court was constituted under the revised charter of Elmira (Laws of 1894, chap. 615, § 99 et seq.). The old charter (Laws of 1875, chap. 370,. § 4, as amd. by Laws of 1889, chap. 258) had provided for the election of three justices of the peace for such city, and the revised charter (§ 133) provided that no person shall hereafter be elected to such office in the city, so it is plain that the City Court was established to take the place of the Justices’ Courts formerly existing. The revised charter (§ 103, as amd. by Laws of 1896, chap. 693) gave to the City Court
The plaintiff being a resident of Elmira and the cause of action being one for the breach of a contract where the amount claimed did not exceed $500, the City Court had jurisdiction of the action provided proper service of process upon the defendant could be obtained; so the only question on this branch of the case is whether the amendment to section 2881 of the Code referred to, has author; ized jurisdiction to be obtained over the défendaut by service of process upon its local agent at Elmira. Section 2881, which was amended to authorize service upon a local agent, is a part of' the title of the Code relating to the commencement of actions in Justices’ Courts, while section 2869, mentioned in section 105 of the revised charter, is found in the title of the Code relating to the jurisdiction and general powers of Justices’ Courts. It was within the legislative power to say upon whom, in case of a corporation, process might be served. By the amendment authorizing it to be served upon a local agent residing in the county, no additional jurisdiction was given to- the Justices’ Court, but it was only changing the practice by which such court might exercise the jurisdiction which it already possessed. So if it applied to the City Court in Elmira, it was not giving that court additional jurisdiction, but it was only enlarging the procedure by which it might summon a defendant to the jurisdiction it already had.
That the amendment in question applies to the City Court and has enlarged its powers in this respect is apparent from section 111 of the revised charter (as amd. by Laws of 1896, chap. 693), which provides that “ the summons * * * and all other process, the service of process * * * shall in all matters, except as herein provided, be governed by' the provisions of the Code of Civil Procedure for Justices’ Courts.” There is no exception in the act relating to the service of process that takes anything from the force of this provision, and this section is not restricted by the-use of the word “ now,” as is section 105, so that any amend
Insurance companies are alert in extending their agencies to every locality, and if the conclusion reached is not correct, persons living-in cities and having controversies with such companies over claims for small amounts, which cannot be tried in the higher courts, would have no redress except at the expense and inconvenience of going to a distant locality to try their suits at a place where an officer or managing agent could be found upon whom to serve process, and in this respect they would be less favored than if they lived in a town, for there they could compel such a company to respond in a Justice’s Court to process served upon a local agent. I am satisfied that no such distinction between the service of process in the City Court and the Justice’s Court was intended by the Legislature in the enactment of this charter.
The question of jurisdiction was the principal matter urged upon our attention by the appellant, but it also insists that a cause of action was not established' by the plaintiff. While the evidence in support of the plaintiff’s claim was not as satisfactory as might be desired we are not prepared to say from an examination of the record that the City Court erred in holding that the plaintiff had established the liability of the defendant under the policy issued by it to the plaintiff.
The judgment appealed from should be affirmed, with costs.
All concurred. ■
Judgment appealed from affirmed, with costs.