38 N.Y.S. 335 | N.Y. App. Div. | 1896
It is conceded here that the court at Special Term erred in plac-ing its decision upon the failure of defendant to make the designa-tion provided for in chapter 349 of the Laws of 1895. That act relates solely to Justices’ Courts, and has no application to courts-of record. The only question is whether the service was properly made by delivering copies of the summons and complaint to Blackwell, the agent of defendant, under subdivision 3 of section 432 .of the Code of Civil Procedure. That section provides that “ personal service of the summons upon * * * 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 those officers, to the officer performing corresponding
The defendant made the motion to set aside the service, and it was incumbent upon it, in order to obtain the relief sought for, to show facts from which the court could determine that the service was improperly made. We do not think such facts were shown by the papers used on the motion. The appointment of the Superintendent of Insurance as attorney to receive service of process was made under chapter 346, Laws of 1884 (not 1894, as stated in the printed papers). The appointment was made in 1884 after the passage of the act of that year. That act was repealed by chapter 690, Laws of 1892, and section 30- of the later act was enacted in place of the provisions of the act of 1884. The act of 1884 and the act of 1892, so far as the question here involved is concerned, were substantially the same, and provided in effect that a foreign insurance corporation should execute and file in the office of the Superintendent of Insurance a written appointment of the superintendent, to be the true and lawful attorney of such corporation in and for this State, upon whom all lawful process in any action or proceeding against such corporation might be served with the same force and effect as if it was a domestic corporation, and that service upon such attorney should be deemed service upon the corporation. The appointment made under these provisions was not the designation provided for, however, by subdivision 2 of section 432 of the Code of Civil Procedure.
The appointment made under these acts was to be filed in the office of the Superintendent of Insurance and related alone to foreign insurance corporations, while the designation under this section of the Code was to be filed in the office of the Secretary of
The only question, therefore, is whether the defendant made proof of 'such facts at Special Term as called upon the courtt-o.hpld that there was not good service under the provisions of. the Code; It appeared that the service was made by delivering the summons and complaint to Blackwell. There- was ho proof or claim, that any designation liad been made under the provisions of the Code. The ■difficulty with the proof that was made at . Special Term was that it did not show that Blackwell was not one of the persons referred-to in either the first -or third subdivision Of section 432. All that the proof showed was that he was a,special agent of the defendant,, and that his duty was to act‘for defendant in recéiving proofs of loss and in adjusting losses. It did not. show that he had- no other relations with the -defendant. For all that appeared, he might have been the president,, treasurer or secretary of defendant. There was no proof that the defendant did not lack cither of these officers,.and that Blackwell was. not then an officer performing corresponding functions.. If he was either of -these persons, the service was good under the first subdivision of the section. There was no proof that a designation under subdivision 2 of the section had been made or was in force, nor was there any proof that the defendant had no property within this State,'nor that the cause of action did not arise in this State, and in the absence of this proof the service, if made upon the cashier, a director or a managing agent of the. defendant, was good
We think the order was properly made by the Special Term, and that it should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, J"J., concurred.
Order affirmed, with costs.