Higgins v. Dewey

To inveigle is to persuade to something bad or hurtful by deceptive arts or flattery, to wheedle, to allure, to entice, to seduce (Webster’s Die.) In a legal sense (as applicable to this case), it is to induce a party to come within the jurisdiction of the court by some scheme, subterfuge, fraud, trick, device or misrepresentation, that he may be served with process. Baker v. Wales, 14 Abb., N.S., 331; Carpenter v. Spooner, 2 Code Rep., 140 ; affid., 2 Sandf., 717 ; 3 Code Rep., 23 ; Metcalf v. Clark,, 41 Barb., 45 . The defendant wrote to the plaintiffs from Palmer, Mass, Sept 17, 1890, that the creditors of a corporation, in which all the parties were interested, would be called together on Friday of the following week.

The plaintiffs, under date of September 22, replied that Mr. Wood, one of the plaintiffs, would like to see him (the defendant) before he went to the meeting. It does not clearly appear where the meeting was to be held, but it was presumably to be held at Palmer, Mass., where the corporation did business. The defendant came to New York, September 30, 1890, in answer to the plaintiffs’ letter, and was thereafter and on the-same day arrested on the order-granted herein. The summons is dated September 16, and the papers sworn to September 17, but the order to arrest was not granted until September 30. The plaintiffs swear that, although they contemplated arresting the defendant, they abandoned the intention until after they had conversed with him on September 30, and that his statements were so unsatisfactory that they

Where a defendant enters this state voluntarily, he comes at his own risk, and creditors may avail themselves of legal remedies against him. Atlantic, etc., Tel. Co. v. B. & 0. R. R. Co., 46 N. Y., Superior Ct., 377 ; S. C., on appeal, 87 N. Y., 355 ; Browning v. Abrams, 51 How., 172 , limiting Adriance v. Lagrave, 59 N. Y., 110 , and Lagrave’s Case, 14 Abb., N. S., 333n. We feel constrained to hold, however, that the letter written by the plaintiffs brought the defendant on to Hew York, and that while here, under their letter, he was exempt from arrest at their instance. The order appealed from goes too far. It sets aside the order of arrest as well as the service. In this' respect the order is erroneous. Metcalf v. Clark, 41 Barb., 45 . In so far as it vacates the order of arrest, the order appealed from will be reversed, and in so far as it sets aside the service thereof (the irregularity charged), it will be affirmed, without costs to either party.

MoAdam, Oh. J., and Van Wyck, J., concur.

(dissenting)—This is an appeal from an order made vacating an order of arrest against the defendant, and the service made thereunder, upon the ground that the defendant, who it appears is a resident of Massachusetts, was enticed by plaintiffs within the jurisdiction of this court for the purpose of serving upon him said process.

The application for the vacation of said order or arrest and ser- ■ vice thereof is based upon technical grounds and reasons, and ■ should not be encouraged or supported unless the defendant demonstrates that he was enticed by plaintiffs within the jurisdiction of this court for the purpose of having said process served.

If from the affidavits submitted it is possible for the court to conclude that the presence of the defendant in this city at the time of such service was voluntary, then it seems to me that it is our duty to so determine.

The law of this case is plain and undisputed. Before the defendant can succeed he must prove that by subterfuge, scheme, enterprise, pretense or design, he was brought within the jurisdiction of this court by plaintiffs for the purpose of serving process upon him ; if he fails to prove this then he cannot succeed.

I have carefully examined the facts presented by the papers submitted, and it seems that all the facts and circumstances show that the defendant came to this city voluntarily, and for the purpose of transacting his business, and not, as he would have us believe, that he came here at the invitation of plaintiffs, and solely for the purpose of seeing them, and then immediately to return to his home in Massachusetts.

The facts developed upon the argument of this appeal and by the papers are about as follows: The defendant at and prior to his arrest was the president of the Palmer Carpet Co. of Palmer, Mass. This company at that time had some trouble with its creditors, nearly all of whom conducted business in this city, the

“Gentlemen—There have been so many delays that it has been impossible to decide what to do. I think, however, that the creditors will be called together next week about Friday.”

The Friday mentioned is September 26th. In response to said letter, the plaintiffs wrote to defendant on September 22, 1890, a letter as follows:

11 Your favor of the 17th inst. came duly to hand, and in reply would say our Mr. Wood would like you to call and see him at this office, if you can possibly do so, before the meeting.”

And this is the letter that induced defendant, as he says, to come to this city on September 30th, visit plaintiffs at their office, where, after a conversation, he was arrested by the sheriff.

The defendant’s letter to plaintiffs fixes the probable meeting of creditors of the defendant’s company for some time during the next week, which would end on Saturday, September 27th, and a reasonable construction of that letter would be that, he having mentioned Friday as about the day of the meeting, he meant on or before that day; therefore, if plaintiffs’ letter, written as a response to this letter, is to be construed by this court as an invitation coming from plaintiffs to defendant to visit this city, then it seems to me that the last day that said invitation included was Friday, September 26th, and then it ceased, and if defendant visited this city subsequent to that day, as he did, for he was arrested here on September 30th, I 'think it is only fair and reasonable to assume that he came here of his own free will and for business purposes, and his actions bear out this assumption ’ for although he swears -that he came here.in response to plaintiffs; letter, and solely for the purpose of seeing them, yet on that very day, and before his arrest, he called at the office of Patrick Dougherty, another creditor of defendant’s company, and said he wanted to see said Dougherty (who was then absent) in reference to business, and waited for one-half hour for that purpose.

This visit to Dougherty’s office, as well as plaintiffs’, ■ I think, clearly indicates that defendant was here on September 30th for the purpose of visiting the creditors of his company in this city, for the purpose, perhaps, of arranging some settlement of their claims, and this purpose was probably set aside by his arrest Although defendant’s company was a Massachusetts corporation, yet its creditors, as admitted on the argument, were principally in, this city, and as defendant’s letter shows he contemplated calling them together, there is nothing to show that defendant intended that such meeting would be held in Palmer, Mass., and therefore it is reasonable to assume that such meeting being for the benefit of defendant’s company, and he on behalf of his company would have such meeting held 'at a place most suitable and convenient for them, which place would certainly be somewhere in this city, (and plaintiffs, upon receipt of def-rdant’s letter, acting upon this theory, invited him to call at their office before such meeting was held). Every person of ordinary common business experience knows that this is the course

I believe that all the facts and circumstances of and surrounding this case show that the defendant came here voluntarily and for the purpose of settling the financial difficulties of his company, and that the letter written by plaintiffs did not influence his coming, and that his contention that he was enticed here by plaintiffs can be sustained only by straining the facts and circumstances of this case, which I believe is not the policy or purpose of the law; every presumption of both law and fact is at all times in favor of sustaining the "legality of a process and its service, and such presumptions should surely be indulged in, in cases of this character.

For these reasons I am of the opinion that the order vacating the order of arrest and the service thereof, should be reversed, with costs.

Order reversed as far as it vacates the order of arrest and in so far as it sets aside the service affirmed, without costs.