Olean Street Railway Co. v. Fairmount Construction Co.

Adams, P. J.: The defendant, The Fairmount Construction Company, is a foreign corporation organized and existing under the laws of the State of New Jersey. At the times hereinafter mentioned Clarence P. King was the defendant’s president and resided in the city of Philadelphia. The plaintiff is a domestic corporation with its place of business in the city of Clean, Cattaraugus county, where its president, Wilson R. Page, resides. The summons herein was issued and the complaint verified by Page on the 2oth day of May, 1900, and on the twenty-ninth day of June' following, they were personally served within the State upon John Fobes, the appellant’s co-defendant. . At this time Clarence P. King was claiming that the plaintiff herein was indebted to him in the- sum of $674.44 for money loaned [293] to the plaintiff on the 2d day of December, 1897, and was corresponding with Page, as president of the plaintiff, with a view to having his claim adjusted and paid. In answer to a letter demanding payment, Page wrote King that if he would meet' him in New York the latter part of the week of July 15, 1900, he thought they could “ come to some conclusion.” To this request King assented, and suggested. the seventeenth day of July as the day for the meeting, whereupon Page again wrote King that he would meet him at the Astor House at twelve o’clock, noon, on Saturday, July twenty-first. The parties met at the time and place last mentioned and King presented his claim, which Page said he could riot settle until he had seen a former treasurer of the plaintiff, and while conversing in regard to the matter a process server walked in and served the summons and complaint in this action upon King, and thereupon the interview between the parties terminated. A motion was thereafter made to vacate such service upon the ground that King was induced by some scheme or device to come within the jurisdiction of the courts of this State in order that service of process might be obtained upon him; and it must, of course, be conceded that if the truth of the appellant’s contention were clearly established, service secured by such means should not be permitted to stand. For the court will not sanction any attempt by fraud or misrepresentation to bring a party within its jurisdiction. (Snelling v. Watrous, 2 Paige, 314; Carpenter v. Spooner, 2 Sandf. 717 ; Metcalf v. Clark, 41 Barb. 45 : Beacom v. Rogers, 79 Hun, 220.) The plaintiff’s president, however, denies that he invited Mr. King to come to the city of New York for the purpose of obtaining service upon him. On the contrary, he declares that when he wrote King suggesting that city as the place of meeting he did not even know that he was the defendant’s president, and there are some circumstances in the case which, to some extent, give color to this statement; but, upon the other hand, it is a somewhat remarkable coincidence that the process server should have appeared upon the scene just as the two presidents had opened negotiations for a settlement • of the demand which King was endeavoring to have adjusted, and that as soon as the process was about to be served [294] Page announced that he could do nothing in the direction of settlement until he had seen a former treasurer of the plaintiff. Assuming, however, that the coincidence to which we have referred was purely accidental and not the result of any trick or device, as perhaps we ought, in view of the decision of the Special Term, the fact remains that the defendant’s president was induced to come 'within the jurisdiction of the court at the suggestion of the plaintiff’s president, and for the express purpose of adjusting a claim ■against the plaintiff which he had been assured by Page would probably then be adjusted. In these circumstances we think that good faith and a due regard for the proprieties of the case required' ■of the plaintiff that when the negotiations for a settlement of the matter which brought the parties together terminated, a reasonable opportunity should have been afforded the defendant’s president to leave the city and State before any attempt was made to serve a summons upon him; and - inasmuch as this was not done, the plaintiff ought not to be permitted to take advantage of a course of conduct which, if not amounting to actual fraud and deceit, was certainly equivalent thereto, for it involved a breach of the confidence which King had reposed in the bona fides of the invitation of the plaintiff’s president to place himself within the jurisdiction of the court. (Allen v. Wharton, 13 N. Y. Supp. 38 ; Higgins v. Dewey, 34 N. Y. St. Repr. 692.) The order appealed from should, therefore, be reversed,.and the ■motion to vacate the service of the summons and complaint granted. All concurred, Williams and Laughlin, JJ., in result only. • Order reversed, with ten dollars costs and disbursements, and motion to vacate service of the summons and complaint granted, with ten dollars costs.