30 Misc. 2d 835 | N.Y. Sup. Ct. | 1961
The motion of the defendants, Catherine L. JDoeller, sued individually and as executrix, and William L. Doeller, to vacate and set aside the service of the summons and complaint in this action for fraud and misrepresentation in the sale of stock of the estate is granted in all respects, with costs.
Movants, Catherine L. Doeller, as executrix, and William L. Doeller, are parties to a contract containing a limited provision
One textwriter suggests that the chief use of the section will be to enable a defendant who is sued in a court of limited jurisdiction by a nonresident, to obtain jurisdiction in personam without being forced to go outside the State to sue (Forkosch, Carmody’s New York Practice, § 123, subd. E).
The moving defendants make two contentions, first that Catherine L. Doeller is not the plaintiff individually in the arbitration, therefore, the attorney who acts for her in her representative capacity is not her personal lawyer. Secondly, the limited scope of the agreement for arbitration makes inadmissible the assertion of this cause of action for fraud as a counterclaim in the proceeding. In other words, the parties never made an agreement to arbitrate a claim based on fraud or misrepresentation, and particularly so since the movant, Catherine L. Doeller, individually is not a party to the agreement (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 298 [Cardozo, Ch. J.]). The plaintiff cites Garfield v. Mackinney (7 Misc 2d 94), where service was upheld as against a nonresident defendant who had sued individually in the Surrogate’s Court, thus invoking the aid of our courts. But the distinction is crystallized by a consideration of Kangrga v. Bajkic (17 Misc 2d 476) where Mr. Justice Stbeit struck down the service which had been made upon an ancillary administrator in the Surrogate’s Court. In the latter case the proposed defendants were three legatees who had authorized the appointment of the administrator to institute the proceeding in court.
Neither side notices, or at least nobody has said, that the plain language of section 227-a of the Civil Practice Act limits this form of substituted service on a nonresident. It is confined in application so that it is only where an action or proceeding is commenced by a nonresident ‘ ‘ in any court of this state ’ ’ that the method is available. Concededly the arbitration pro