Silver v. Western Assurance Co. — 3 A.D. 572

Majority

p. 572

Helen Silver, Respondent, v. The Western Assurance Company of Toronto, Canada, Appellant.

Headnote

Summons—service of, on the agent of a foreign insurance corporation—proof ' required on a motion to set it aside — a designation of the Superintendent of Insurance does■ not preclude service under § 432 of the Code of Civil Procedure — Laws .1884,'chap. 346; 1892, chap. 690, § 30; 1895, chap. 349—Code of Civil Procedure, § 432, subds. 1, 2, 3..

Upon an appeal from an order denying a motion to set aside the service of the summons and complaint in an action, it appeared that the attorney for the .. defendant made an affidavit that the defendant was a foreign corporation doing business in the State of Hew York, and in July, 1884, had designated the Superintendent'of Insurance of the State of Hew York as the person on whom service of all process in that State must be made; that a person named Blackwell, .who was. a special agent of the defendant, acting for it in receiving proofs

p. 573

of loss and in adjusting losses, had been served with the summons and complaint. The plaintiff’s attorney made an affidavit in which he stated that Blackwell was the agent of the defendant.

Held, that the statutory provision requiring every foreign insurance corporation, as a condition of its doing business in this State, to file in the office of the Superintendent of Insurance a certificate of its appointment of the Superintendent of Insurance as its, attorney, upon whom service of process may he made (Chap. 346, Laws of 1884, re-enacted in this particular by § 30 of chap. 690, Laws of 1893), is permissive in its nature, and does not exclude service made-in accordance with the provisions of section 483 of the Code of Civil Procedure, which prescribes how service upon any foreign corporation may he made;

That the burden was upon the defendant to show that the service made was not such as the law provided for to give the court jurisdiction;

That, while it appeared that Blackwell was a special agent of the defendant, as it did not appear that he was not its president or secretary or an officer performing corresponding functions, or its cashier, director or managing agent, and as-there was no proof that a designation under the Code of a person upon whom process should be served, had been made and filed in the office of the Secretary of State, or that the defendant had no property within the State, or that the-cause of action did not arise within the State, it could not he said that the service was not properly made under section 433 of the Code of Civil Procedure, and that the order should he affirmed.

Appeal by the. defendant, The Western Assurance Company of Toronto, Canada, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 24th day of February, 1896, vacating a former order made on default which set aside the service of the summons and complaint in the action, and denying defendant’s-motion to set aside such service.

February 6, 1896, George A. Stearns made an affidavit entitled in the action wherein he stated in substance that he was the attorney' for the defendant in the action for the motion only; that defendant' was a foreign corporation organized under the laws of Canada; that it was doing business in this State and had complied with the laws of the State; that pursuant to law the defendant had duly designated the Superintendent of Insurance of the State as the person on whom service of all process in the State must be made, and that such designation was still in force as appeared by a certificate of said-superintendent in deponent’s possession certifying that defendant filed in his department, July 16, 1884, an appointment of the superintendent as its attorney to receive service of process in the State-

p. 574

under the provisions of chapter 346, Laws of 1894,^[1] and that such appointment had not been revoked and was still in force and effect; that one Blackwell was a special agent of the defendant, and that his duty was to act for the defendant in receiving proofs of loss and in adjusting losses, an<j that deponent had been informed by said Blackwell that a summons and complaint in this action had been left, with him, although he (Blackwell) expressly stated that he was not the proper person uponwhom to make service. Upon this affidavit an order to show cause was made, and afterwards, the plaintiff being in default, the order was made, setting aside the service-of the summons and complaint. Afterwards the attorney for the plaintiff made an affidavit in which he stated, among other things, that the action was commenced by the service of the summons and complaint upon Hr. Blackwell, the agent of defendant. Subsequently the. default was opened and the motion to set aside the service was denied. The only facts upon which the court acted in denying the motion to set aside the service were those stated in these .two affidavits above referred to. The summons and complaint were not used on the motion, and are not in the papers upon this appeal.

George A. Stearns, for the appellant.

Abraham H. Sarasohn, for the respondent.

It is conceded here that the court at Special Term erred in plac-ing its decision upon the failure of defendant to make the designa-tion provided for in chapter 349 of the Laws of 1895. That act relates solely to Justices’ Courts, and has no application to courts-of record. The only question is whether the service was properly made by delivering copies of the summons and complaint to Blackwell, the agent of defendant, under subdivision 3 of section 432 .of the Code of Civil Procedure. That section provides that “ personal service of the summons upon * * * a foreign corporation must be made by delivering a copy thereof within the State as follows: 1. To the president, treasurer or secretary, or, if the corporation lacks either of those officers, to the officer performing corresponding

p. 575

functions under another name. 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 filed in the office of the secretary of state (the section then provides for the contents of the designation, and that it shall remain in force until a written revocation is filed, etc.). 3. If such a designation is not in force, or if neither the person designated nor an officer specified in subdivision 1 of this section can be found with due diligence, and the corporation has property within the State, or the cause of action, arose therein, to the cashier, a director or a managing agent of the corporation within' the State.”

The defendant made the motion to set aside the service, and it was incumbent upon it, in order to obtain the relief sought for, to show facts from which the court could determine that the service was improperly made. We do not think such facts were shown by the papers used on the motion. The appointment of the Superintendent of Insurance as attorney to receive service of process was made under chapter 346, Laws of 1884 (not 1894, as stated in the printed papers). The appointment was made in 1884 after the passage of the act of that year. That act was repealed by chapter 690, Laws of 1892, and section 30- of the later act was enacted in place of the provisions of the act of 1884. The act of 1884 and the act of 1892, so far as the question here involved is concerned, were substantially the same, and provided in effect that a foreign insurance corporation should execute and file in the office of the Superintendent of Insurance a written appointment of the superintendent, to be the true and lawful attorney of such corporation in and for this State, upon whom all lawful process in any action or proceeding against such corporation might be served with the same force and effect as if it was a domestic corporation, and that service upon such attorney should be deemed service upon the corporation. The appointment made under these provisions was not the designation provided for, however, by subdivision 2 of section 432 of the Code of Civil Procedure.

The appointment made under these acts was to be filed in the office of the Superintendent of Insurance and related alone to foreign insurance corporations, while the designation under this section of the Code was to be filed in the office of the Secretary of

p. 576

State, and related to all foreign corporations,' whether insurance or otherwise. The provisions of section 432 of the Code of Civil Procedure were enacted long before either the statute of 1884 or that of 1892. These provisions of the Code have never been expressly repealed and are still in force. ' The provisions of the acts of 1884 and 1892 in no manner conflict with the provisions of the Code; The acts of 1884 and 1892 provided for the service of process upon, a person other than those specified in the provisions of the Code, where the foreign corporation was an insurance company. The acts of 1884 and 1892 provided merely that process might be served upon the Superintendent of Insurance,.not that it must be. A proper service might, therefore, be made upon a foreign insurance corporation under the provisions either of the Code or of the acts of 1884 or 1892. Concededly, there was no attempt here to serve under the provisions of the act of 1884 or of 1892.

The only question, therefore, is whether the defendant made proof of 'such facts at Special Term as called upon the courtt-o.hpld that there was not good service under the provisions of. the Code; It appeared that the service was made by delivering the summons and complaint to Blackwell. There- was ho proof or claim, that any designation liad been made under the provisions of the Code. The ■difficulty with the proof that was made at . Special Term was that it did not show that Blackwell was not one of the persons referred-to in either the first -or third subdivision Of section 432. All that the proof showed was that he was a,special agent of the defendant,, and that his duty was to act‘for defendant in recéiving proofs of loss and in adjusting losses. It did not. show that he had- no other relations with the -defendant. For all that appeared, he might have been the president,, treasurer or secretary of defendant. There was no proof that the defendant did not lack cither of these officers,.and that Blackwell was. not then an officer performing corresponding functions.. If he was either of -these persons, the service was good under the first subdivision of the section. There was no proof that a designation under subdivision 2 of the section had been made or was in force, nor was there any proof that the defendant had no property within this State,'nor that the cause of action did not arise in this State, and in the absence of this proof the service, if made upon the cashier, a director or a managing agent of the. defendant, was good

p. 577

under the third subdivision of the section, and then there was no proof that Blackwell was not either the cashier, a director or a managing agent of the defendant. The defendant could not have an order setting aside the service of the summons and complaint unless he proved that the service made was not such as the law provided for, to give the court jurisdiction of the action. No such proof was given for the reasons stated. Such proof was at hand if it could be made at all. Blackwell was- the agent of the defendant, located in the State. His affidavit could have been presented showing what his entire relations with the defendant were. Only the attorney’s affidavit was produced, and it might well be true that he had no knowledge as to Blackwell’s relations with the defendant, or whether they were anything more than that of a special agent with the duty to receive proofs of loss and to adjust losses or not. We do not deem it necessary to pass upon the question whether, if Blackwell’s only relations with the defendant were to act for it in receiving proofs of loss and adjusting losses, he was a managing agent under the provisions of section 432 of the Code. There was no proof before the Special Term that these were his only relations with defendant; no proof that his relations were not such as clearly and beyond all question constituted him a managing agent.

We think the order was properly made by the Special Term, and that it should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, J"J., concurred.

Order affirmed, with costs.