71 N.Y.S. 827 | N.Y. App. Div. | 1901
Lead Opinion
The respondent is a national bank located at Corry, in the State of Pennsylvania. An action was pending commenced by it to recover on a promissory note made by Weston Brothers, as makers, . to the order of one Bamsey and which had been discounted at said bank. Weston Brothers were a copartnership consisting of Abijah, Orrin and William W. Weston, and they were made defendants as were the indorsers, and all were personally served. On the 10th day of December, 1893, answer was served on behalf of the defendants Abijah and Orrin Weston. None of the other defendants answering, an order was granted on the motion of the plaintiff in the action to sever the same and judgment was entered on the 29th day of December, 1893, against the non-answering defendants, in accordance with said order, and a trial had on the merits resulting in a verdict for the .defendants Abijah and Orrin Weston, which was subsequently reversed by the Court of Appeals (Citizens Nat. Bank v. Weston, 162 N. Y. 113). Prior to the trial a motion was made on behalf of the said answering defendants for leave to serve a supplemental answer, setting up the entry of the judgment against William W. Weston, one of the said joint makers, in bar to the further prosecution of the said action. Said motion was denied at Special Term in the exercise of its discretion and its order was affirmed by the General Term (Citizens Nat. Bank v. Weston, 81 Hun, 84). The first action was set down for retrial at the Trial Term at Little Valley, N. Y., September 10,1900, and the vice-president and two other directors of the bank, all residents of Pennsylvania, went from Corry as witnesses in the action. On the summons, complaint and other papers, a temporary injunction was granted enjoining the prosecution of the original action until further order in the premises. A copy of this injunction order was first served on the attorney for the bank and later in the .day with the summons, complaint and affidavits on Hr. Barlow, who was vice-president and a director of the bank.
A motion was made at Special Term to vacate the service on the ground that Hr. Barlow, being in the State solely for the purpose of testifying in the action, was exempt from the service of process. The plaintiff claimed that this privilege had been waived and the Special Term referred the matter . to a referee h> take proof and
“ No denial or objection was made to this by any ol the three officers of the bank there present, and service was made on the said Barlow as vice-president of the defendant.
“ The conversation that preceded the service of the papers indi cate, in my judgment, an assent to such service on the part of the said Barlow and a waiver of the statutory prohibition as to service of process on a non-resident of the State, present in the State as a witness.”
Mr. Waring, in his narration of what occurred at the time the process was served, after testifying that Mr. Barlow or one of those with him stated that they were all officers, added: “ Some one spoke up and said that Mr. Barlow was the vice-president of the bank and to serve on him, and I directed the sheriff to make the service on him, and he made it right there; ” Mr. Waite, the deputy sheriff who served the papers, testified that one of those with Mr. Barlow said, “ Serve it on him (Barlow), he is vice-president.” Mr. Dawson, one of the directors of the bank, testified that one of their party said to Mr Waring “ that Mr. Barlow was the vice-president of the bank and that the papers could be served on him.” It is, therefore, evident that the proofs supported the finding of fact by the referee, that the service was made upon the vice-president after what was equivalent to an invitation to make the same.
In some States the service of process upon a foreign corporation carrying on its business within the State is effective “ in all litigation pertaining to that business, independently of any statute authorizing service of process.” (13 Am. & Éñg. Ency. of Law [2d ed.J, 895.) It is unnecessary to go to that extent in the present case to . uphold the efficaby of the service. But the principle referred to indicates that the service of process upon a plaintiff in a new action which names him as defendant, but which relates to the same subject-matter as the pending action, does not require any straining on the part of the court to relieve him from the service.
The officers of the bank were voluntarily in the State. The vice-president had in his hand the injunction order which had been served upon the attorney for the bank. He knew its contents, and was informed by the attorney who procured it that an officer had the papers for service upon whicli the injunction order was granted, and which contained the facts referred to in the order as soon as an officer of the defendant could be found. One of the directors then said that Barlow .was vice-president and service could be made upon him, and the attorney adopted the suggestion and caused the papers tó be served. If these intelligent men representing the bank intended to shield themselves by their immunity from service then was the time to assert the privilege instead! of soliciting such service.
With a judgment in favor of the Original defendants which was only recently reversed there was no occasion for the present action
The order should be reversed, with ten dollars costs and the disbursements of this appeal, and the motion to dismiss denied, with ten dollars costs.
All concurred except Bümsey, J., who dissented in an opinion.
Dissenting Opinion
The defendant is a foreign corporation. One Barlow, who was its vice-president, had occasion on the 10th of September, 1900, to go to Little Valley in the county of Cattaraugus-as a witness to attend the trial of an action in which the respondent was defendant. While he was there, actually in attendance upon the court for that purpose, the summons and injunction order in this action were served upon him. A motion was made to vacate the service. There was considerable dispute as to the facts upon the motion, and the matter was referred to a referee to take proofs and to report the same with his opinion to the court. The referee reported the fact that in his judgment the service of the papers was not within the statutory prohibition, and that the motion should be denied, but when the case was brought before the court at Special Term, it overruled the referee’s opinion and granted the motion.
We think that there can be no doubt that this action of the court was proper. It is not denied that Barlow, upon whom the service was made, was the vice-president of the defendant and was in attendance at the trial of the action at Little Valley for the purpose of protecting the interests of his bank. The rule is not denied that when an officer of a corporation has gone into a foreign jurisdiction, for the purpose of attending a litigation there pending, he is exempt from the service of process upon him while he is there engaged in the business which brought him, and for a reasonable time thereafter. (Clark v. Grant, 2 Wend. 257; Sizer v. Hampton & Branchville R. R. Co., 57 App. Div. 390.)
The only question was whether Barlow had waived the -immunity which he possessed. Passing the question whether he was at liberty to waive it, which we do not think is of importance, we think there can be no doubt that, upon all the evidence, there was nothing which would warrant any one in supposing that he was willing that the
There is no pretense that there was any laches in making this motion. The service was made on the 10th of September, 1900, and the motion to vacate the service was made within five days thereafter. We can see no reason why the service should be permitted to stand if ever, under any circumstances, a non-resident is to be given the immunity to which he is entitled, to attend the trial of an action in this State.
The order should be afñrméd, with ten dollars costs and disbursements.
Order of Special Term reversed, with ten dollars costs and disbursements ; motion to set aside service of process denied, with ten dollars costs.
