Stoibor v. Marinacci

Callahan, J. The summons and complaint herein were delivered to a Deputy Secretary of State in the office of the State Department in New York city and a copy forwarded to the non-resident [346] defendant and received by him. It seems to me that such service complies with section 52 of the Vehicle and Traffic Law (as amd. by Laws of 1930, chap. 57) and is valid to give jurisdiction to the court below. This determination is not contrary to our holding in Heihs v. Reinberg (136 Misc. 815). The controlling fact there was that service was made by delivery of process to the Secretary of State in Albany. There can be no question of “ due process ” involved in this case as the statute and the method of service thereunder are in accord with those approved as sufficient in Hess v. Pawloski (274 U. S. 352). The use of the highways of our State by non-resident automobilists presumes the appointment of the Secretary of State as agent to receive process. Section 52 says that process may be served on the Secretary of State or in his office. There would, therefore, be no extension of the power or jurisdiction of a local court by its accepting jurisdiction of an action under the statute if the service was completed by delivery to the designated agent within the territorial limitation of the court. Here that limitation is the city of New York and the process was delivered within that city. The requirement that a copy of the papers be forwarded to the non-resident defendant is exacted to afford due process, but service is made on the agent here. No point is made by the parties hereto that delivery of process to the Secretary of State’s office may not be made at his office in New York city. There appears to be ample power conferred on that officer by law to designate such deputies, create such bureaus and select such officers within the State as he may deem proper. (Exec. Law, §§ 20, 21, as amd. by Laws of 1927, chap. 525.) The statement in Heihs v. Reinberg (supra) that the statute contemplated that service was to be made at the official headquarters of the Secretary of State does not imply that it must necessarily be served in the Albany office. The language of section 52 of the Vehicle and Traffic Law is not subject to such narrow construction. I see no reason why this case differs from any other where process is delivered to one authorized to receive service in the territorial limits of the court. It may well be that a distinction is unscientific and arbitrary which permits service to be made,in a local court in actions against non-residents because the Secretary of State is found within the territorial limits of such court, and denies jurisdiction to local courts when such officer cannot be found in their territory; but all territorial limitations of jurisdiction are arbitrary. And it is no less scientific to make such distinction than to announce a rule which in effect would permit a resident of Albany to sue a non-resident in local courts in that city while denying a similar [347] right to those in other parts of the State. Surely from a practical viewpoint the non-resident is not benefited, if he may be brought to justice in this State, by compelling bim to undergo the greater expense of defending an action in the Supreme Court on a claim which by reason of the amount might well be brought in a local court. Orders affirmed, with ten dollars costs and disbursements, with leave to appellant to answer within six days after service of order entered hereon upon payment of costs and disbursements, and with leave to appeal to the Appellate Division. Levy and Callahan, JJ., concur; Peters, J., dissents. Footnotes [*] Affg. 139 Misc. 838. See, also, Teplitzky v. Lippman (143 Misc. 244).