Erickson v. Macy

• Decision Date: 19 April 1921
• Citation: 231 N.Y. 86,131 N.E. 744
• Parties: ERICKSON v. MACY.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 86

131 N.E. 744

ERICKSON

v.MACY.

Court of Appeals of New York.

April 19, 1921.

Action by A. Wentworth Erickson against Silvanus J. Macy. An order denying defendant's motion to vacate the service of summons upon the defendant by publication was affirmed by the Appellate Division (194 App. Div. 950,185 N. Y. Supp. 926), and defendant appeals by permission.

Reversed.

The defendant is, and at all the times herein mentioned was, a resident of the county of Livingston in this state. On the 29th day of June, 1912, he made and delivered to the plaintiff his promissory note dated that day for $22,704.04, payable with interest on demand. The note has not been paid. On the 1st day of June, 1918, the defendant entered the military service of the United States, and departed from and remained out of this state until subsequent to his discharge from military service on July 10, 1919. After the defendant left this state, and in June, 1918, the plaintiff delivered a summons and complaint in the Supreme Court on said note to the sheriff of Livingston county for service. It was returned unserved, because, as certified by said sheriff, he was unable to find the defendant in said county. On July 16, 1918, an order was granted, directing the service of the summons by publication. The order was based upon papers, including an affidavit in which it was stated that--

‘There has not been, to the best of deponent's knowledge and belief, any exception suspending the running of the statute of limitations on said cause of action or enlarging the time; and that the limitation for the time for bringing this action, as prescribed by chapter 4 of the Code of Civil Procedure, would, as deponent is advised and believes, have expired within 60 days next preceding this application if such attempt to commence the action, as aforesaid, had not been made.’

The summons was thereafter published in accordance with the terms of the order. A motion was made to set aside the service of the summons, which motion was denied. An appeal was taken from that order to the Appellate Division. The Appellate Division modified the order of the Special Term so far as it related to the judgment that had been entered upon the alleged default of the defendant after the publication of the summons, but unanimously affirmed the order so far as it denied the motion to set aside the order of publication. Erickson v. Macy, 194 App. Div. 950,185 N. Y. Supp. 926.

The Appellate Division thereafter granted leave to appeal to this court (185 N. Y. Supp. 927), and in the order certified that in its opinion four questions of law ought to be reviewed by this court, viz.:

‘(1) Did the act of Congress of March 8, 1918, known as Soldiers' and Sailors' Relief Act, extend the New York state statutes limiting the periods of time to enforce a civil remedy against persons engaged in military service of the United States for the period of such service?

‘(2) Did the justice of the Supreme Court, by whom the order of July 16, 1918, in this action was made, directing service of the summons herein upon the defendant by publication, have authority and jurisdiction under subdivision 6 of section 438 of the Code of Civil Procedure of the state of New York, in view of the said act of Congress of March 8, 1918, to grant the said order of publication?

‘(3) Had the limitation of time in which to commence the action expired at the time the said order was applied for and granted, except for the plaintiff's attempt to commence the action by the delivery of the summons to the sheriff?

‘(4) Would such limitation of time have expired within 60 days next preceding the application for such order if the time had not been extended by the attempt to commence the action?’

Appeal from Supreme Court, Appellate Division, Fourth Department.

Charles Van Voorhis, of Rochester, for appellant.

Edward Harris, of Rochester, for respondent.

CHASE, J. (after stating the facts as above).

[1] Whenever it is necessary to determine whether jurisdiction has been obtained over a defendant in an action by service of the summons in some way other than by personal service thereof, it must be remembered that the general rule in regard to the service of process, established by centuries of precedent, is that process must be served personally within the jurisdiction of the court upon the person to be affected thereby. Substituted service when provided by statute is in derogation of such general rule, and, consequently, the directions thereof must be strictly construed and fully carried out to confer any jurisdiction upon the court. Korn v. Lipman, 201 N. Y. 404, 94 N. E. 861.

By the Code of Civil Procedure it is provided that an action upon a contract obligation or liability, express or implied, must be commenced within six years after the cause of action has accrued. Section 382.

[2] By an act of Congress passed March 8, 1918, known as the ‘Soldiers' and Sailors' Civil Relief Act’ it is provided that:

‘The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service.’ U. S. Compiled Statutes, Supplement 1919, § 3078 1/4 e, p. 617.

The enactment of that section by Congress was within its power. Stewart v. Kahn, 78 U. S. (11 Wall.) 493, 20 L. Ed. 176;Mayfield v. Richards, 115 U. S. 137, 5 Sup. Ct. 1187, 29 L. Ed. 334;Mondou v. New York, N. H. & H. R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44;Hoffman v. Charleston Five Cent Savings Bank, 231 Mass. 324, 121 N. E. 15;Grand Trunk Western Railway Co. v. Thrift Trust Co. (Ind. App.) 115 N. E. 685;Konkel v. State, 168 Wis. 335, 170 N. W. 715;Pierrard v. Hoch, 97 Or. 71, 184 Pac. 494,191 Pac. 328.

[3] The laws of the United States, constitutionally enacted, are the laws of the individual states and of all the people of the United States. It was said by Chief Justice Marshall, in McCulloch v. State of Maryland, 4 Wheat. 316, 4 L. Ed. 579, that the nation on those...