Robert Dollar Co. v. Canadian Car & Foundry Co.

• Decision Date: 06 March 1917
• Citation: 220 N.Y. 270,115 N.E. 711
• Court: New York Court of Appeals Court of Appeals
• Parties: ROBERT DOLLAR CO. v. CANADIAN CAR & FOUNDRY CO., Limited, et al.

220 N.Y. 270

115 N.E. 711

ROBERT DOLLAR CO.

v.CANADIAN CAR & FOUNDRY CO., Limited, et al.

Court of Appeals of New York.

March 6, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Robert Dollar Company against the Canadian Car & Foundry Company, Limited, and others. From an order of the Appellate Division (161 N. Y. Supp. 1143), affirming an order of the Special Term granting a motion to take a deposition, the named defendant appeals by permission on certified questions. Order affirmed.

T. Ludlow Chrystie, of New York City, for appellant.

Frederic E. Mygatt, of New York City, for respondent.

HISCOCK, C. J.

The parties to this action are both foreign corporations. The action is brought by respondent as assignee to recover a large amount alleged to be due on account of commissions upon or participation in certain war contracts with the Russian government, and it was commenced by service of the summons and complaint upon one of the appellant's officers within the state of New York in accordance with the provisions of subdivision 1 of section 432 of the Code of Civil Procedure. A motion having been made to set aside the service of the summons on the ground amongst others that the appellant was not doing business within this state, and, therefore, was not subject to service therein, a motion was made by the respondent for a deposition to secure evidencefrom the president of the appellant for use in opposing that motion, and in opposition to this last motion it was and is argued that the Code provision just referred to is unconstitutional and void even as to a foreign corporation doing business in this state, because it inseparably provides for service upon foreign corporations not doing business as well as upon those doing business within the state. Under these circumstances the questions have been certified to us, in effect, whether in such a case as this valid service of a summons may be made and jurisdiction of a foreign corporation doing business in this state acquired by service of a summons under said provision of the Code. For the purposes of this discussion we shall assume that those questions are involved in the appeal now before us and proceed to their decision. Side section by its title refers to service of a summons ‘upon a foreign corporation,’ and it provides:

‘Personal service of the summons upon a defendant, being a 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,’ etc.

As has been stated, it is the claim of the appellant that this section provides for service upon a foreign corporation not doing business within the state as well as upon one which is thus doing business, and it is asserted that inasmuch as it has now been determined that general jurisdiction cannot thus be obtained of a foreign corporation of the former class, this provision must fall as an entirety, and even in the case of a corporation doing business within the state and for service upon which provision might constitutionally have been made. The attempt was made to present this question to this court in the case of Pomeroy v. Hocking Valley Railway Company, 218 N. Y. 530, 113 N. E. 504, but we were of the opinion that while the question was one worthy of careful consideration it was not there fairly presented.

We shall consider first the question whether, either because that is its fair meaning or because we are irrevocably committed to that construction, we must interpret the section as unconstitutionally attempting to authorize service of a summons upon a foreign corporation not doing business within the state by delivery to an officer incidentally here.

[1][2] The statute does not in express terms purport to authorize service upon a foreign corporation not doing business here simply because it might be possible to find one of its officers temporarily within the state. It provides generally for service upon a corporation which is ‘a defendant,’ and this language fairly and without strain can be interpreted as meaning that in a case where constitutionally and legally a foreign corporation can be made a defendant in our courts the summons shall be served upon it in the manner provided. A statute which points out how personal service of process may be made upon a defendant reasonably seems to be considering a case where a litigant can be made a defendant legally in our courts, rather than one in which our courts cannot constitutionally acquire jurisdiction by purported service of process. It is more rational to assume that the Legislature intended to point out the details of method by which service might be made, where it was constitutionally possible to make service, than that it was attempting to provide for service upon corporations which could not thus legally be brought within the jurisdiction of our courts and where service if in form made would be vain. If it is permissible thus to interpret the section, it is the duty of the court to do it. This familiar rule that the courts must if possible give a valid rather than an invalid interpretation to a statute is expressed in McCullough v. Virginia, 172 U. S. 102, 11219 Sup. Ct. 134, 138 , in language which is peculiarly applicable to the present case. It is there said:

‘It is elementary law that every statute is to be read in the light of the Constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the Legislature to reach. It is the same rule which obtains in the interpretation of any private contract between individuals. * * * So, although general language was introduced into the statute of 1871, it is not to be read as reaching to matters in respect to which the Legislature had no constitutional power, but only as to those matters within its control.’

See, also, People ex rel. Sinkler v. Terry, 108 N. Y. 1, 7,14 N. E. 815.

[3] As we study the vigorous argument of the appellant's counsel, it does not seem to be by him much disputed that if the interpretation of this statute were now before us as an original question we might so interpret the same as to make it applicable to foreign corporations doing business within the state, and therefore valid. But it is argued that this court formerly decided that jurisdiction might be acquired of a foreign corporation not doing business within the state, by service of a summons on an officer thereof incidentally passing through the state, and that thereby we have so fixed the meaning of this statute that we cannot now give to it an interpretation which will be constitutional. That does not seem to us to be a correct proposition.

Giving to the cases cited by appellant's counsel, and of which Pope v. Terre Haute Car & Mfg. Co., 87 N. Y. 137, may be regarded as the leading one, all of the effect which can fairly be claimed for them, we find that this court originally was of the opinion that jurisdiction could constitutionally be acquired of a foreign corporation, although not doing business in this state, by service of process upon an officer temporarily and incidentally here, and that such service would comply with the due process provisions of the Constitution. Adopting this view, the court necessarily interpreted the indeterminate language of section 432, subdivision 1, as meaning and including such a corporation in its provisions for service of a summons. Observance of the rule already adverted to fully justified the interpretation of the statute that when it provided generally for service upon foreign corporations it was intended to include such an one as we have been describing if it could be thus properly served, as it was then being held it could be.

By giving this interpretation the courts did not read into the statute any new words or affix new, peculiar, or unalterable meaning to the words which were there. It simply held that the language which was used was intended to include foreign corporations which could be constitutionally and legally made defendants in our courts and be properly served with process in the manner pointed out by the statute, and that inasmuch as a foreign corporation, even though not doing business in the state, was such an one, the statute should be interpreted as authorizing service upon it.

Subsequently the Supreme Court of the United States disagreed with the views of this court, and held that the requirements for due process as the basis of a judgment whereby a defendant was deprived of its property were not satisfied by service upon an officer of a foreign corporation having no business here and who was temporarily within the state for his own purposes. Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 35 Sup. Ct. 579, 59 L. Ed. 910.

[4] This court, as was its duty in respect of such a question, yielded to the views of the Supreme Court. Bagdon v. Phil. & Reading C. & I. Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407. Thus a constitutional interpretation has been established different than that which was entertained by the court when the Pope Case was decided. The language of section 432 remains precisely as it was the, and the rule governing our interpretation of it remains unchanged, and it seems to us that we are now bound to give to its language an interpretation which is in accordance with and not in defiance of the Constitution, even though such interppretationis different than the one which was given under a former and, as it must now be assumed, mistaken idea of the law. The obligation to construe the statute in accordance with the Constitution remains constant, and if the definition of the requirements of the Constitution in respect of this question has been changed, it seems inevitably to follow that we must place upon the statute a construction which will be so...