| S.D.N.Y. | Mar 20, 1923
(after stating the facts as above). I shall not consider most of the objections raised by the defendant, because I regard one as fatal, i. e. that no jurisdiction cambe acquired in personam over any of the individuals making up any one of the syndicates. The effort is a new one, contrary to the uniform understanding of the profession, which has always assumed that the conventional Lloyds policy was not suable in this country. The fact that for many years such underwriters have issued policies in this form and no one has ever undertaken to bring them to the bar of an American court is of itself some reason to suppose that it has been accepted as impossible.
No law of the state of New York can confer personal jurisdiction upon this court (Riverside Mills v. Menefee, 237 U.S. 189" court="SCOTUS" date_filed="1915-04-12" href="https://app.midpage.ai/document/riverside--dan-river-cotton-mills-v-menefee-98429?utm_source=webapp" opinion_id="98429">237 U. S. 189, 35 Sup. Ct. 579, 59 L. Ed. 910" court="SCOTUS" date_filed="1915-04-12" href="https://app.midpage.ai/document/riverside--dan-river-cotton-mills-v-menefee-98429?utm_source=webapp" opinion_id="98429">59 L. Ed. 910), and unless the underwriters, not being present, have in some way subjected themselves voluntarily to that jurisdiction, they are exempt. A very similar case arose in Flexner v. Farson, 248 U.S. 289" court="SCOTUS" date_filed="1919-01-07" href="https://app.midpage.ai/document/flexner-v-farson-99253?utm_source=webapp" opinion_id="99253">248 U. S. 289, 39 Sup. Ct. 97, 63 L. Ed. 250" court="SCOTUS" date_filed="1919-01-07" href="https://app.midpage.ai/document/flexner-v-farson-99253?utm_source=webapp" opinion_id="99253">63 L. Ed. 250. There, Washington Flexner, apparently not the plaintiff, was the agent of the defendants in Kentucky and was served with a writ out of the courts of that state under a statute permitting such service if the defendants
Unincorporated associations of the kind here in question which must, of course, be distinguished from joint-stock associations formally organized under article 2 of the General Associations Law, are at best no more than partnerships; indeed, in the case at bar these syndicates are presumably not even that. The state of New York has made no effort to license them and, so far as regards citizens of the United States, could not exclude them from doing business within her borders. Nor is she in any stronger position because the members of the syndicates are British subjects. Article 1 of the Treaty of 1815 with Great Britain (8 Stat. 228; Malloy, vol. 1, p. 624), as extended indefinitely by that of 1827 (8 Stat. 360; Malloy, vol. 1, p. 645), provides that between the two powers there shall be “a reciprocal liberty of commerce” ; that the inhabitants of either “shall have liberty freely and securely to come with their ships and cargoes to all such places * * * to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, * * * and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries.” The last words do not, of course, include “laws and statutes” subjecting them to discrimination by reason of their alienage, and the' treaty necessarily overrides any state statute to the contrary. Geofroy v. Riggs, 133 U.S. 258" court="SCOTUS" date_filed="1890-02-03" href="https://app.midpage.ai/document/geofroy-v-riggs-92666?utm_source=webapp" opinion_id="92666">133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642" court="SCOTUS" date_filed="1890-02-03" href="https://app.midpage.ai/document/geofroy-v-riggs-92666?utm_source=webapp" opinion_id="92666">33 L. Ed. 642; Yick Wo v. Hopkins, 118 U.S. 356" court="SCOTUS" date_filed="1886-05-10" href="https://app.midpage.ai/document/yick-wo-v-hopkins-91704?utm_source=webapp" opinion_id="91704">118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220" court="SCOTUS" date_filed="1886-05-10" href="https://app.midpage.ai/document/yick-wo-v-hopkins-91704?utm_source=webapp" opinion_id="91704">30 L. Ed. 220; Truax v. Raich, 239 U.S. 33" court="SCOTUS" date_filed="1915-11-01" href="https://app.midpage.ai/document/truax-v-raich-98542?utm_source=webapp" opinion_id="98542">239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131" court="SCOTUS" date_filed="1915-11-01" href="https://app.midpage.ai/document/truax-v-raich-98542?utm_source=webapp" opinion_id="98542">60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283. These aliens could neither be excluded from entry into the state of New York, nor from transacting business with her citizens.
I do not mean that section 13 of the General Associations Law should be read as attempting so to extend the jurisdiction over persons not within the boundaries of the state. Yet if the argument be that it should be thus extended and there be no escape from such a construction, it is void pro tanto. That will be a valid reason for not so reading it.
The plaintiff cites United Mine Workers v. Coronado Coal Co., 259 U.S. 344" court="SCOTUS" date_filed="1922-06-05" href="https://app.midpage.ai/document/united-mine-workers-v-coronado-coal-co-100018?utm_source=webapp" opinion_id="100018">259 U. S. 344, 42 Sup. Ct. 570, 66 L. Ed. 975" court="SCOTUS" date_filed="1922-06-05" href="https://app.midpage.ai/document/united-mine-workers-v-coronado-coal-co-100018?utm_source=webapp" opinion_id="100018">66 L. Ed. 975. In that case the court affirmed the jurisdiction of the District Court over a trade union of some 450,000 members, in the United States and Canada. Over some of the members, the officers of a number of the locals, and the officers of the Union, jurisdiction had been got <jn usual form, and it was held that this brought in the association as a whole. The decision did not effect a general change in the status of such associations; rather, it turned
Moreover, in that case some of the members had been served, and personal judgment could have been got against them in any event. The action sounding in tort, it was not necessary to join all the joint tortfeasors. Atlantic & Pac. Co. v. Laird, 164 U.S. 393" court="SCOTUS" date_filed="1896-11-30" href="https://app.midpage.ai/document/atlantic--pacific-railroad-v-laird-94557?utm_source=webapp" opinion_id="94557">164 U. S. 393, 17 Sup. Ct. 120, 41 L. Ed. 485" court="SCOTUS" date_filed="1896-11-30" href="https://app.midpage.ai/document/atlantic--pacific-railroad-v-laird-94557?utm_source=webapp" opinion_id="94557">41 L. Ed. 485. It nowhere appears that the Supreme Court supposed that judgment could have been entered against those members who were outside the jurisdiction, and I venture to believe that it could not. The court was interested in whether the union funds could be reached on execution, and that was all.
The case at bar sounds in contract and there is no joint debt; If there were and one joint debtor were served, a judgment might go against the joint funds (Civil Practice Act, §§ 1197-1199), though not against the debtors not sued. But in the case of a series of several debts like these, there can be no service except on the theory of the several representation of each underwriter by the British corporation. Fish v. Vanderlip, 218 N.Y. 29" court="NY" date_filed="1916-04-18" href="https://app.midpage.ai/document/fish-v--vanderlip-3610785?utm_source=webapp" opinion_id="3610785">218 N. Y. 29, 112 N. E. 425, Ann. Cas. 1916E, 150. Indeed, even section 13 of the General Associations Law does not 'Cover any such action. While the liability may be several as well as joint, execution is to be levied only on joint or common property. Unless it be a liability of all, action will not lie. Schouten v. Alpine, 215 N.Y. 225" court="NY" date_filed="1915-06-01" href="https://app.midpage.ai/document/schouten-v--alpine-3610747?utm_source=webapp" opinion_id="3610747">215 N. Y. 225, 232, 109 N. E. 244; McCabe v. Goodfellow, 133 N. Y. 89, 30 N. E. 728, 17 L. R. A. 204.
Service of the writ quashed.