Bauman v. Fisher

• Decision Date: 02 December 1960
• Citation: 12 A.D.2d 32,208 N.Y.S.2d 317
• Parties: Wilma BAUMAN, Plaintiff-Respondent, v. Jay D. FISHER, Defendant-Appellant. Floyd T. BAUMAN, Plaintiff-Respondent, v. Jay D. FISHER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 317

208 N.Y.S.2d 317

12 A.D.2d 32

Wilma BAUMAN, Plaintiff-Respondent, v.Jay D. FISHER, Defendant-Appellant.

Floyd T. BAUMAN, Plaintiff-Respondent, v.Jay D. FISHER, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

Dec. 2, 1960.

Teeter, Harpending, Fox & Swartwood, Elmira (Charles B. Swartwood, Elmira, of counsel), appearing specially for appellant.

Cain & McCabe, Elmira (Paul H. McCabe, Elmira, of counsel), for respondents.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

GIBSON, Justice.

The appeals contest the validity of the claimed service of process upon a nonresident, pursuant to the Vehicle and Traffic Law.

Plaintiffs' causes of action arise upon defendant's alleged negligent operation of an automobile within the State of New York on September 14, 1954.Defendant was then a resident of the State, but removed therefrom about two years later.Prior to that time unsuccessful settlement negotiations were conducted by his insurance carrier with the plaintiffs, and with plaintiffs' attorneys after their retainer.In attempting to serve process upon defendant, plaintiffs' attorneys learned of his departure and were informed that his whereabouts were unknown.They then attempted to effect service under the Vehicle and Traffic Law as then constituted, pursuant to the provisions of section 52¹ respecting service upon a nonresident motorist, which, by section 52-a², are made applicable to a resident departed from the State subsequent to the accident or collision.Section 52(as amended, L.1954, ch. 499), after providing for service upon the Secretary of State, continued, 'and such service shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by registered mail with return receipt requested.'The statute further requires the filing, among other papers, of 'either a return receipt purporting to be signed by the defendant or a person qualified to receive his registered mail, in accordance with the rules and customs of the post-office department; or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail.'In attempted compliance with these provisions, the required papers were mailed to defendant at the address appearing upon the accident report filed by him but were returned by the post office with the notation 'Moved, Left no address'.

The Special Term considered that the owner or operator who has become involved in an accident and remains subject to sections 52and52-a'has a responsibility to see that his whereabouts are not concealed by moving without leaving any forwarding address'; that the statute is intended to cover a situation such as here occurred; and that the purported service in this case was in compliance with it.However just and reasonable the effect of the construction thus suggested, we find no warrant therefor in the plain language of the act.The constitutional validity of statutes such as this, resting, as they do, upon constructive appointment of an attorney to receive service of process, depends upon further provision rendering 'reasonably probable' the receipt by the defendant of notice of such service.Wuchter v. Pizzutti, 276 U.S. 13, 24, 48 S.Ct. 259, 72 L.Ed. 446.The New York statute when enacted (L.1928, ch. 465) followed, in language almost indentical, the Massachusetts nonresident dent motorist act, which in 1927 had been sustained by the decision in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 633, 71 L.Ed. 1091 as not in contravention of the due process clause of the Fourteenth Amendment.That decision construed the Massachusetts act as requiring actual notice to the nonresident defendant, this by virtue of the provision, seemingly expressed as a condition, that notice be sent by registered mail 'to the defendant' and his return receipt filed; and our Court of Appeals subsequently found actual notice the import of the New York statute as well, holding: 'In order to insure that a defendant so served shall receive actual notice of the action, the statute provides that such service shall be sufficient only 'provided that notice of such service and a copy of the summons are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt * * * filed with the clerk of the court * * *''.Shushereba v. Ames, 255 N.Y. 490, 492, 175 N.E. 187.Although the provision for 'actual notice' exceeds the minimal requirement of due process--that 'reasonable probability' of notice be assured (Wuchter, supra, 276 U.S. at page 24, 48 S.Ct. at page 262)--the importance of the construction at which both courts arrived is not thereby diminished.

Other State statutes in the pattern of the Massachusets act have likewise been construed as requiring actual notice.(See, e. g., Syracuse Trust Co. v. Keller, 5 W.W.Harr. 304, 35 Del. 304, 165 A. 327, andMollohan v. North Side Cheese Co., W.Va., 107 S.E.2d 372, in each of which cases the registered letter was returned with post-office notation that defendant's whereabouts were unknown;Weisfeld v. Superior Court, 110 Cal.App.2d 148, 242 P.2d 29; Bucholz v. Hutton [construing the Montana statute], D.C., 153 F.Supp. 62.)The Connecticut statute, Gen.St. 1930;§ 5473, providing for 'sending [of notice] to the defendant * * * at his last known address', was held to afford reasonable probability of notice and thus as effective to confer jurisdiction (Hartley v....