Howard Converters, Inc. v. French Art Mills, Inc.

Crane, Ch. J. The plaintiff is a New York corporation. The defendant is a foreign corporation, a New Jersey corporation. The defendant is not licensed by New York to do business here. On February 26, 1936, the plaintiff, claiming that the defendant had breached its contract theretofore made, obtained a warrant of attachment and levied on the defendant's property here. On March 18, 1936, twenty-one days after warrant of attachment was granted, one Filbert L. Rosenstein, the designated agent of the defendant, was personally served without the State with the summons and complaint, without an order, pursuant to section 235 of the Civil Practice Act. Rosen *240 stein was served at the registered principal office of the defendant at its domicile, Paterson, New Jersey. He was and is the duly appointed, selected and registered agent of the defendant, authorized by the defendant in its charter (certificate of incorporation) and by the laws of the State of New Jersey to receive service of all process. The Corporations Act of the State of New Jersey, Compiled Statutes (47), section 28d (1) provides: “ Every corporation heretofore or hereafter organized under the laws of this State, and every foreign corporation authorized to transact business in this State, shall maintain a principal office within the State of New Jersey, and an agent in charge of said principal office upon whom process against the corporation may be served.” (L. 1916, ch. 243, p. 507.) Pursuant, therefore, to this act of New Jersey, the French Art Mills, Inc., had designated Filbert L. Rosenstein as the person to be served with a process in litigation against it. Service, therefore, of process, at least within New Jersey, was as good when made personally upon Rosenstein as upon any officer of the company. The question before us is: “ Was it good service, in order to preserve a warrant of attachment in this State, to serve Rosenstein personally without the State, pursuant to section 235 of the Civil Practice Act?” We must of course distinguish between the cases, where jurisdiction is sought to be obtained over a foreign corporation, and where jurisdiction is sought to be obtained over property attached and being within the State of New York. No jurisdiction over the person of the corporation can be obtained by serving an officer of a foreign corporation without the State. Jurisdiction, however, may be obtained over the res within the State, attached or sequestered, provided our practice gives the foreign corporation sufficient notice by service out of the State or other process so that it may defend its title to that property. (Matthews v. Matthews, 240 N. Y. 28, and Geary v. Geary, 272 N. Y. 390.) *241 We, therefore, turn to our statutes. Section 235 provides: “ Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon a specific real or personal property within the state or that such an interest or Hen in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property * * * or where it appears by affidavit filed in the action or as part of the judgment roH in such action that a warrant of attachment, granted in the action, has been levied upon property of the defendant within the state, the summons may be served without an order, upon a defendant without the state in the same manner as if such service were made within the state, * * The language of this section is the same, with additions, as contained in section 443, subdivision 3, of the Code of Civil Procedure. The decision of this case turns upon the words “ as if such service were made within the state.” Does this mean service upon a domestic corporation within the State, or a foreign corporation within the State? The defendant to be served is a foreign corporation. It is a person without the State who is to be served. The section is not dealing with persons within the State or with domestic corporations. The proper and full reading of the section would be: “ The summons may be served without an order upon the defendant (foreign corporation) without the State in the same manner as if such service were made upon the defendant (foreign corporation) within the state.” In fact I do not see how it could refer to anything else, nor do I see any reason for restricting it to domestic corporations within the State. Such interpretation is contrary to the very intention as weff as language of the statute. How, then, is a foreign corporation served within the ' State? Section 229 teUs us how: “ § 229. Personal service of summons upon foreign corporation. Personal service of summons upon a *242 foreign corporation must be made by delivering a copy thereof, within the state, as follows: “1. To the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary; or, if the corporation lack either of those officers, to the officer performing corresponding functions under another name. “ 2. To a person or public officer designated for the purpose pursuant to law by certificate filed in the department of state, the department of banks or department of insurance, whose designation is in force, or if a designee, other than a public officer, has died, resigned or removed from the state, to the secretary of state as provided by the general corporation law. “ 3. To the cashier, a director or a managing agent of the corporation, within the state, if service cannot be effected under subdivision two of this section, or an officer of the corporation specified in subdivision one of this section, with due diligence, cannot be found within the state.” Service made upon a person designated for the purpose, pursuant to law, by certificate filed in the Department of State, would be good service of a foreign corporation within this State. Such a person occupying such a position without the State may be thus served to accomplish the purposes of section 235 of the Civil Practice Act. Rosenstein was the person designated by the foreign corporation to receive service of papers, and the certificate stating that he was so selected as such agent was filed with the secretary of state in New Jersey, pursuant to the laws of that State. Neither the officers nor this agent were in the State of New York nor were they expected to be. Section 235 refers to officers and agents without the State, persons and corporations over whom the State of New York can obtain no jurisdiction. Outlaw says that in attachment cases where we have seized the property, the summons and complaint may be served upon the officers of foreign corporations or their agents *243 without the State, that is, served in the State of New Jersey upon such an officer or agent who would correspond to the officer or agent to be served within New York State. A president in New Jersey could be served there because a president (not the president) could be served here. An agent designated in New Jersey could be served there because such an agent (not the agent) could be served here if designated in the same way here. Can there be any doubt — in fact the respondent suggests none — that if the president of a corporation had been served in Paterson, New Jersey, instead of the certified agent, the service would have been good, pursuant to section 235, for the purposes of this attachment? The same concession must be made as to the vice-president and treasurer, assistant treasurer, secretary or assistant secretary. These officers are not in the State of New York, but they are properly served without the State, pursuant to section 229. They are not officers of the corporation by reason of any laws of the State of New York, or by reason of any designation within the State of New York. They are officers solely under the Laws of the State of New Jersey. The same thing applies to the person designated for the purpose of receiving service by certificate filed in the New Jersey Department of State. He is such an agent by reason of the laws of the State of New Jersey just as the president and treasurer are agents for accepting service. (Bagdon v. Philadelphia & Reading C. & I. Co., 217 N. Y. 432, 438.) Our law says, section 229 of the Civil Practice Act, that such a president, treasurer or certified agent (certificate filed in New York) may be served within the State to obtain jurisdiction over the foreign corporation. Section 235 of the Civil Practice Act says such a person, namely, president, treasurer or certified agent (certificate filed in New Jersey) may be served without the State to preserve and enforce an attachment within this State. McCoy v. Erie Forge & Steel Co. (201 App. Div. 570; affd., 234 *244 N. Y. 545) is not applicable, as section 233 of the Civil Practice Act was the governing provision in that case and did not prescribe the manner of service which was to be made thereunder. It has been suggested that the certificate of designation required by subdivision 2 of section 229 and section 235 has reference to a certificate filed with the New York Secretary of State. If this were so, section 235 was entirely unnecessary, because it would then always be possible to obtain jurisdiction over the corporation, attachment or no attachment. We construe the sections of our Civil Practice Act as giving force and effect to this service upon Rosenstein for the purpose of giving jurisdiction to the courts of this State over the property attached. We are construing section 235 in conjunction with section 229 of the Civil Practice Act. Therefore, cases like Gilbert v. Burnstine (255 N. Y. 348) and Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (243 U. S. 93, at p. 95) are not strictly in point. Surely under these statutes service which would be good in New Jersey for a judgment in personam (Martin v. Atlas Estate Co., 72 N. J. Eq. 416), should be held good for the notice necessary under our Constitution to be given the defendant in attachment proceedings. (See Geary v. Geary, supra.) The orders below should be reversed and the motion denied, with costs in this court and in the Appellate Division. The question certified is answered “ Yes.”