Jones v. McNeill

In this action instituted by residents of New York State' against residents of California to recover for personal injuries and property damage allegedly sustained in an automobile accident in New Mexico, defendant J. D. McNeill, Jr., being the owner and .defendant Angela

In brief, the first defense alleges that defendants were at all times mentioned in the complaint and still are residents of California, that the collision occurred in New Mexico, that defendants were served in California and, therefore, that the court lacks jurisdiction of the defendants. To these, the second adds that service on defendants was made subsequent to a purported levy on property purportedly of defendants within New York pursuant to an order of attachment, that the levy was made upon the interests of defendants in the aforesaid policy of insurance issued and paid for in California, that the interest of defendants in said policy is not a debt or property subject to levy in New York, that the purported attachment and levy are void and, therefore, the court lacks jurisdiction of the defendants. These precise points were answered recently in Seider v. Roth ( 17 N Y 2d 111 ) where the Court of Appeals held that, in a personal injury action against a nonresident defendant, a defendant’s liability insurer’s contractual obligation to defend and indemnify defendant is a “ debt ” owing to defendant and as such subject to attachment under CPLB. 6202, the insurer being regarded as a resident of this State (pp. 112, 114). Incidentally, the answer admits the allegation of the complaint that Angela G-. McNeill was operating her husband’s vehicle with his express permission and consent (cf. Professor ¡Siegel, Supplementary Practice Commentary — 1965, McKinney’s Cons. Laws of N. Y., Book 7B, 1965 Cum. Pocket Part, following CPLB 3211, pp. 88-89) and under such circumstances the wife would be protected by the California policy (CPLB 4511, subd. [a]; 7 Appelman, Insurance Law and Practice, pp. 225, 231).

The fourth defense repeats the allegations as to defendants’ residence, the State in which the accident occurred, the place of service of process and the order of attachment and levy and asserts, in substance, that the exercise of jurisdiction over defendants pursuant to the attachment and levy imposes an unreasonable and illegal restraint and burden on commerce among the States in contravention of that part of section 8 of article I of the United States Constitution, which reads “ The Congress shall have Power * * * To regulate Commerce * * * among the several States ”. The doctrine of undue burden on interstate commerce as a limitation on State court jurisdiction cannot be overlooked (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.15). The fact that a nonresident or foreign corporation is engaged in interstate commerce does not, of itself, preclude the attachment of its property, providing such commerce is not unduly interfered with and whether there is such interference depends on the fact situation in each such case (Intentional Milling Co. v. Columbia Co., 292 U. S. 511 , 517-520; St. Louis, B. & M. Ry. v. Taylor, 266 U. S. 200 , 207; Atchison Ry. Co. v. Wells, 265 U. S. 101 , 103; 6 Am. Jur., 2d, Attachment and Garnishment, § 220). As a result of the decision in United States v. Underwriters Assn. ( 322 U. S, 533 ) and the passage of the McCarran Act, while the business of insurance may now be interstate commerce, nevertheless, the States, by express congressional consent, may continue to tax and regulate it, free from any negative prohibitions implicit in the commerce clause (Matter of Guardian Life Ins. Co. v. Chapman, 302 N. Y. 226 , 240) and, in this case, the insurer is regarded as

Although the court may not be able to determine the issue here under CPLR 3211 (subd. [e)], because of lack of information as to whether or not there is an undue burden on interstate commerce, it must be decided whether the defense in question is to be dismissed on the ground that a defense is not stated or has no merit (CPLR 3211, subd. [b]). The fundamental pleading requirement is in CPLR 3013 which provides: “ Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” We are also admonished by CPLR 3026: “Defects shall be ignored if a substantial right of a party is not prejudiced.” Generally speaking, pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy (Foley v. D’Agostino, 21 A D 2d 60 , 63), and a preponderance of conclusional allegations is no longer necessarily fatal (Holzer v. Feinstein, 23 A D 2d 771 , 772; Steinberg v. Guild, 22 A D 2d 775 , 776, affd. 16 N Y 2d 791 ). Tested in the light of these principles and realizing that the defense as alleged apprises the court and parties of the subject matter of this aspect of the controversy and that plaintiffs are not prejudiced, this defense should not be dismissed at this time (cf. Professor Siegel, Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, 1965 Cum. Pocket Part, following CPLR 3013, pp. 52 et seq.). There should be a trial of the issue raised, by this defense within 30 days after a proper bill of particulars is served by defendants and the examination before trial of defendants upon written questions is completed.