27 A.D.2d 767 | N.Y. App. Div. | 1967
Appeal from an order of the Supreme Court which denied defendant’s application pursuant to CPLR 317 to set aside a default judgment entered upon nonpersonal service of a summons and notice in an action to recover for merchandise sold and delivered, and to be allowed to defend the action. Defendant is a foreign corporation and service was made upon the Secretary of State pursuant to defendant’s statement and designation filed pursuant to section 210 of the General Corporation Law, in which, however, its address within the State was erroneously set forth, with the result that it did not receive the process mailed to it by the Secretary of State. We find, contrary to respondent’s contention, that the relief sought is within the scope of CPLR 317, as defendant was not served with the summons “by personal delivery to him or to his agent for service designated under rule 318 ”; and there appears to us no warrant for equating “Personal service” within the generalizations of CPLR 311 (subd. 1) with “personal delivery” within the frame and specific purpose of CPLR 317, as respondent would have us do. Additionally, the language “agent for service designated under rule 318” would in such ease become redundant. Further, from the plain language of CPLR 317 and 318 it is readily apparent that the Secretary of State is not to be considered a rule 318 agent. (See 1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 317.04; McLaughlin, Practice Commentary, McKinney’s Cons. Laws of N. Y. Book 7B, CPLR 317.) The modification of the prior statute (Civ. Prac. Act, § 217) renders inapposite the authorities upon which respondent relies. (Weinstein-Korn-Miller, op. cit., par. 317.04.) Appellant might also have moved under CPLR 5015 (subd. [a], par. 1). We find insubstantial the other contentions advanced by respondent in support of the order appealed from. Upon the oral argument appellant stated that it was prepared to post security for the payment
