Nordlinger v. De Mier — 27 N.Y. St. Rep. 16

Majority

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Jacob Nordlinger et al., Resp’ts, v. Joaquin De Mier, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Appearance — Unauthorized nor non-resident dependant when set ASIDE.

An unauthorized appearance for a non-resident defendant who was not served with process may he set aside on a direct application for that purpose. The old rule remitting a party to an action against the attorney has no application to non-residents of the state which licenses the attorney.

Appeal from an order refusing to set aside a notice of appearance for the defendant, De Mier, but authorizing him to substitute other attorneys.

L. H. Arnold, Jr., for app’lt; F. W. Hinrichs, for resp’ts.

The defendants were sued as general partners. The summons was served upon Parraga only. He sent the summons to Messrs. Arnoux, Ritch & Woodford, responsible attorneys of this court, who appeared for all the defendants. They so appeared without authority from either De Mier or De Castro, but they acted in entire good faith, believing that Parraga was authorized to retain them for all the defendants. Parraga’s authority is now denied and the defendants all insist that the partnership, was special, that Parraga was the only general partner while De Mier and De Castro were but special partners. It is quite clear on these papers that Parraga was not authorized to bring De Mier within our jurisdiction through the instrumentality of a legal appearance or otherwise. De Mier resided in Cuba and he knew nothing whatever of this suit. Indeed, it is doubtful whether Parraga in

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tended to authorize these attorneys to appear for de Mier. He simply sent them the summons without explanation, directing them to defend. They did not know that the partnership was special and they appeared for all the defendants upon the supposition that they were authorized to do so by one member of a general partnership, acting for the firm.

De Mier now comes before this court, appearing specially for the motion and claiming that his general partner liad no authority to appear for him or to retain counsel on his behalf, that he himself never in any manner authorized the appearance and thus he finds himself apparently within our jurisdiction without the service of process or authorized appearance. The question is whether in a direct proceeding like this the notice of appearance shotdd be set aside. If the circumstances were reversed, there can be no doubt of the rule in this state. We would not recognize a claim of jurisdiction asserted over one of our citizens by the unauthorized appearance of a foreign attorney. Whatever question there may be with regard to an unauthorized appearance in our own courts for a resident of this state there is none with regard to such an appearance in the courts of other states.

In an action here upon a foreign judgment the defendant may question the jurisdiction as matter of fact, may prove that he was not served with process within the foreign jurisdiction, and that he never authorized an attorney there to appear for him; and such proof will be fatal to the foreign judgment. Kerr v. Kerr, 41N. Y., 272; Hoffman v. Hoffman, 46 id., 30; Bordan v. Fitch, 15 Johns., 121 ; Starbuck v. Murray, 5 Wend., 148 . The justice of a distinction in this respect between domestic judgments and judgments of sister states was questioned by Rapallo, J., in Ferguson v. Crawford, 70 N. Y., 261 . Referring to the full faith and credit provision of the constitution, he observed that the judgments of our courts in the cases above cited could “ stand on no other logical basis,” than a ruling that such was the common law, and presumably, therefore, the law of the sister state.

But without considering the present case from the standpoint of Denton v. Noyes, 6 Johns., 296 , and the 'many critical examinations of that case with which the books abound, we think that the same rule should be applied here which we insist upon when the situation is reversed. Having adopted the rule laid down in Borden v. Fitch, 15 Johns., 121 , and having firmly adhered to it in numerous cases, we certainly cannot question its propriety when applied to ourselves.

Clearly we had no jurisdiction over De Mier in personam, and we could acquire none without an authorized appearance or personal service of process within the state.

The old rule, which remitted a party to an action against the attorney, can have no application- to non-residents of the state which licenses the attorney.

The court cannot well draw non-residents within its jurisdiction through the unauthorized acts of its own officers.

De Mier was therefore entitled to a cancellation of the notice of

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appearance, and to be left just where he was, without the jurisdiction, when the attorneys attempted to bring him in. The right to substitute other attorneys does not meet the case. We cannot say to the foreigner, you never voluntarily submitted yourself to our jurisdiction, hut still it will be convenient to keep you here, and we will permit you to choose your legal agent.

The incident of De Mier’s presence within the state, for a short time since the commencement of the suit, calls for no special comment. He was not served with process while here, and he knew no more about the suit then than he did when he was in Cuba.

That the plaintiffs might have served him, if they had not relied upon the appearance, is a mere speculation. Such considerations can have no hearing on the broad question of jurisdiction.

The order should be reversed, with ten dollar’s costs and disbursements, and the motion to cancel the notice of appearance granted unconditionally, with ten dollars costs.

Van Brunt, P. J., and Brady, J., concur.