Wehrenberg v. New York, New Haven & Hartford Railroad

| N.Y. App. Div. | Feb 7, 1908

Clarke, J.:

The action was brought on April 6, 1907, to recover damages for trespass alleged to have been committed by this defendant by reason of its operation of passenger trains upon the railroad structure in Park avenue,, opposite the premises Ho. .1481 Park avenue, the northeast, corner of One Hundred and Eighth street. The claim to damages is limited to the time of the plaintiff’s ownership of the premises in question, to wit, from January 4, 1889, to April 29,1896. The answer, besides setting up certain denials of material allegations of the complaint,- set up as a third separate defense: That “ the said defendant alleges that it is a.foreign-corporation, organized under the laws of the State bf Connecticut, and that pur-. suant to the statute in such case made and provided, by instrument in writing under the seal of the defendant corporation and duly executed, accompanied by the written consent of the person designated, duly tiled in the office of the Secretary of State on the 28tli • day of December, 1892, it, the defendant, duly designated Frank E. Hall'as a person Upon whom personal service of a summons in any action brought against the defendant-might be made, said designation specifying Grand Central Station, Hew York City, a place within the State of Hew York, as the office or residence*of the person designated as aforesaid; that said designation is and continuously since the said 28th day of December, 1892, has been in full force and unrevoked, and the'place specified as the office or residence of the said person so designated is and continuously since the said 28th-day of December, 1892, has been unchanged, and that the pretended cause or causes of action set forth in the complaint herein did not, ncr did either of them, accrue to the plaintiff herein within six years next preceding the commencement of this action.”

Plaintiff demurred to this defense upon the ground that it was insufficient in law upon the face thereof,, and the demurrer was . sustained.

It is clear that the time during which the right to sue in the courts .of this State may be exercised 'is governed by statute. This is so whether natural or artificial persons, residents or nonresidents are'litigants. As said by Sedowick, Ch. •!., in Londriggan v. N. Y., N. H. & H. R. R. Co. (5 Civ. Proc. Rep. 76): “ If . it were not for § 401, Code Civ. Pro., the limitation of the time of enforcing civil remedies would, be applied to all defendants, irrespective of their being in or out of the State, residents or non-residents at the time of the accruing of the action or during the limited time.'” Said section provides that, “ If when the cause of action accrues against a person he is without the State, the action may be commenced within the time limited therefor after his return into the State. If, after a cause of action has accrued a'gaiust a persoh, he departs from the State and remains continuously absent therefrom for the space of one year or more, * * * the time of his absence * "x" * is not a part o'f the time limited for the commencement of the action. But this section does not apply while a designation made as prescribed in section four hundred ánd thirty or in subdivision second of section four hundred and thirty-two of this act remains in force.” Section 432 of the Code of Civil Procedure is entitled, How personal service of summons made upon a foreign corporation, and provides that Personal service of the summons upon a defendant, being a foreign corporation, .must be made by- delivering a copy thereof, within the State, as follows: * * * 2. To a person -designated for the purpose by a writing, under the seal of the corporation, and the signature of its president, vice-president' or other acting head, accompanied with the written consent of the person designated, and tiled in the office of the Secretary of State. The designation must specify a place, within the State, as the office or residence of the person designated; and if it is within a city, the street and street number, if any, or other suitable designation of;the particular locality. It remains in force until the tiling in the same office of a written relocation thereof, or of the •consent, executed.in lilze manner. * * *.”

The defense demurred to sets up precise compliance with this provision of law in regard to the designation of a person upon whom service may be made. The leading case for the proposition that a foreign corporation may not plead in this State the Statute of Limitations is Olcott v. Tioga R. R. Co. (20 N.Y. 210" court="NY" date_filed="1859-09-05" href="https://app.midpage.ai/document/olcott-v--the-tioga-railroad-company-3577989?utm_source=webapp" opinion_id="3577989">20 N. Y. 210), The statute construed in that case was 2 Eevised Statutes, 297, section 27, a re-enactment of 1 Eevised Laws, page. 186, section 5 : “ If at the time when any cause of action specified in this article shall accrue against any person he shall be out of this. State, such action may be commenced within the terms herein respectively limited-after the return of such person into this State, and if after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited-for the commencement of such action.” The reasoning of that case is as follows: “ The provision is that if at the time the cause of action shallaccrue against any person he shall be out of this State, such action may be commenced within the term before limited after the return of such person into this State. But suppose the person, being an artificial, corporate body, legally confined to the territory of another State, cannot by possibility return here, then by a verbal construction of the sentence the action may be commenced* at any time ;. for the period of liinitationpvill never commence to run.- * ' * •* If the consequence is that a corporation in another State or country, cannot enjoy the . advantage .of our act of limitation, the same, is true of a natural person domiciled abroad-'and.' whose circumstances prevent his coming within our jurisdiction.. The policy of our law is that no persons,- natural or artificial, who are tints circumstanced, can impute laches to their creditors or those claiming' to have rights of action against them in not pursuing them in the ■ foreign jurisdiction where they reside. It was- equitable and in accordance' with the policy of the law of limitation that when the reason for excusing the creditor from the use of diligence should cease, by the debtor coming into'. the State, the obligation to use -diligence should again attach; • In engrafting this policy upon the statute, the- Legislature made use of general words which, though adequate to'describe a corporation, did not contain any language referring specifically to a debtor who. could not, by its constitution, pass from one territorial jurisdiction to. another.”

In the cases cited by the respondent- following the Olcott case, the causes of action accrued, prior to the enactment of sections 40.1 and 432 of the Code adopted in 1877, or there was no proof of compliance, with the statute' in regard to the filing of the duly authenticated designation. Eespondent urges Boardman v. L. S. & M. S. R. Co. (84 N.Y. 157" court="NY" date_filed="1881-03-01" href="https://app.midpage.ai/document/boardman-v-lake-shore--michigan-southern-railway-co-3610980?utm_source=webapp" opinion_id="3610980">84 N. Y. 157). While that-caste was decided, in March,. 1881, and so-after the adoption of the Code of Civil Pro-' ceding, the. causé of action covered a period from 1857 to 1863; .and■'•while'the"court did say, “We are also of opinion that-the plaintiff’s demand is. not barred by tile Statute of Limitations. .. The. claim.aróse Originally against; a foreign corporation; *. *.-* A .foreign corporation shed in this State cannot-avail itself of .the Statute of Limitations. (Olcott v. Tioga R. R. Co., 20 N.Y. 210" court="NY" date_filed="1859-09-05" href="https://app.midpage.ai/document/olcott-v--the-tioga-railroad-company-3577989?utm_source=webapp" opinion_id="3577989">20 N. Y. 210;. Thompson v. Tioga R. R. Co., 36 Barb. 79" court="N.Y. Sup. Ct." date_filed="1861-11-04" href="https://app.midpage.ai/document/thompson-v-tioga-rail-road-5460262?utm_source=webapp" opinion_id="5460262">36 Barb. 79.), And this rule obtains,, although it lias before'the commencement of the'action for the time specified in the statute continuously operated and carried on a railroad, in this State and has property and officers'-therein. (Rathbun v. N. C. R. Co., 50 N.Y. 656" court="NY" date_filed="1872-06-20" href="https://app.midpage.ai/document/rathbun-v-northern-central-railway-co-5478198?utm_source=webapp" opinion_id="5478198">50 N. Y. 656), ” the cases cited were-those when the statute was as noted in the Oleott case, and there is. no allusion in the opinion to the amendment of 1877, nor an.y suggestion that..any designation had been filed. So, for" two reasons, that the cause of action accrued before the change of the law, and that the defendant failed to claim or prove the exemption, that case is not controlling upon the case at bar under the existing statute and the facts pleaded.

This question did arise in McClure v. Supreme Lodge (41 A.D. 131" court="N.Y. App. Div." date_filed="1899-05-15" href="https://app.midpage.ai/document/mcclure-v-supreme-lodge-5186039?utm_source=webapp" opinion_id="5186039">41 App. Div. 131), decided in May, 1899, and. there Mr. Justice Spring said : “ The defendant being a foreign corporation, process could not be served upon it, and like any non-resident, the Statute of Limitations would not inure to its benefit. But the Code of Civil Procedure, section 432, subdivision 2, provides that the corporation may designate a person upon whom service can be made; and if that is complied with, the reason for the suspension of the statute does not exist. In this case, however, the attempt to designate such person was inadequate. The section mentioned provides the manner of making this designation, and three essential things were omitted in this endeavor: 1. It failed to designate the place where the service could be made. 2. It lacked the consent of the person designated. 3. It was not filed in the office of the Secretary of State. Inasmuch as the defendant is asserting its compliance with law in invalidating a certificate duly issued, it must show a fairly strict conformity to the law.”

This is judicial recognition of the force and effect of the Code provision, and authorizes .the deduction that if said provision had been complied with the defense would have been held good.

It seems to me clear' that if a foreign corporation has strictly complied with the provisions of subdivision 2 of section 432, it may invoke the defense of tire Statute of Limitations. It must be conceded that the Legislature has full power to determine how and when a foreign corporation may be sued and, unless prevented by constitutional provisions, what defenses it may interpose. Unless these two sections read together mean that the statute may be interposed when the designation provided for has been made, the excep- ¡ tion provided for in section 401 is absolutely meaningless. We are not permitted so to construe a statute. We are to give force and effect to all of the language, and if there is a fair and reasonable construction possible, that must be adopted. Complete rejection of language is nullification, and not interpretation.

1, therefore, reach the conclusion, that, the judgment appealed from must he reversed, with costs, and the demurrer overruled, with costs to the appellant.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, with costs, and- demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs.