Rawstorne v. Maguire

• Decision Date: 03 July 1934
• Citation: 265 N.Y. 204,192 N.E. 294
• Parties: RAWSTORNE v. MAGUIRE.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 204

192 N.E. 294

RAWSTORNE

v.MAGUIRE.

Court of Appeals of New York.

July 3, 1934.

Action by Charles D. Rawstorne against William G. Maguire. From an order of the Appellate Division (240 App. Div. 1, 269 N. Y. S. 39), which reversed an order of Special Term denying defendant's motion to set aside and vacate the service of summons by substituted service, plaintiff appeals.

Affirmed, first question certified answered in affirmative, and other questions certified not answered.

The following questions were certified:

‘1. Was the order of Special Term denying the motion to vacate the order for the service of the summons by substituted service upon the defendant and to set aside and vacate the service of the summons made thereunder upon the motion that the defendant was not ‘residing within the State of New York’ within the meaning of Section 230 of the Civil Practice Act erroneous?

‘2. Did the Supreme Court of the State of New York obtain jurisdiction over the defendant by the service of the summons herein by substituted service under Section 230 of the Civil Practice Act?

‘3. Was the defendant a person ‘residing within the State of New York’ within the meaning of Section 230 of the Civil Practice Act?

‘4. To warrant the service of a summons upon the defendant by substituted service under Section 230 of the Civil Practice Act is it required that the defendant be ‘domiciled’ within the State of New York?'

Appeal from Supreme Court, Appellate Division, First department.

David S. Hecht and Leonard P. Moore, both of New York City, for appellant.

Kenneth E. Walser and George Rosier, both of New York City, for respondent.

LEHMAN, Judge.

On August 30, 1933, the plaintiff obtained an order for ‘substituted service’ of the summons in this action upon the defendant. The affidavits upon which the order was made allege that the defendant resides at the Hotel Vanderbilt in the city of New York. The summons was served on September 2d, in accordance with the order, by leaving a copy thereof with a person of proper age at the Hotel Vanderbilt. On September 18, 1933, the defendant appeared specially in the action by his attorneys and moved to vacate the order for substituted service and to set aside the service of the summons made thereunder on the ground that he is a resident of Virginia and was not at the time of the service of the summons or at any other time a resident of the state of New York. The Appellate Division has reversed an order of Special Term which denied the defendant's motion.

Section 230 of the Civil Practice Act provides for substituted service upon a ‘natural person residing within the state.’ It is undisputed that the defendant's domicile prior to the year 1932 was in Chicago, Ill., and that since 1932 his domicile has been at the family home which he established in Stafford county, Va. During the year 1932, and at least until July 2, 1933, he spent more time in New York than at the Tamily home. While in New York he always stopped at the Hotel Vanderbilt. In May, 1932, the room clerk at the hotel arranged that the defendant could, while absent from the hotel, leave his baggage in his room there, though he was charged only for the time he occupied the room. He was not at the hotel between July 2, 1933, and August 21, 1933, and he gave up his room and removed his baggage on August 23, 1933, a week before the order for substituted service was made.

The purpose of the provisions for substituted service contained in the Civil Practice Act is to give the courts of this state jurisdiction of the person of a defendant upon whom personal service within the state cannot be effected. The courts of the state can obtain jurisdiction of the persons of those who are domiciled within the state but temporarily absent therefrom, by any form of service which is reasonably calculated to give knowledge of the action and an opportunity to be heard. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. We may assume that the courts of the state can by similar service obtain jurisdiction of the person of one who is physically within the state. De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165; American Law Institute, Restatement of the Law of Conflict of Laws, § 83. Here the defendant at the time of the service was not domiciled here nor was he physically present in the state nor did he maintain a permanent place of abode here either at the time when the order for substituted service was made or at the time the service was effected. The question presented upon this appeal is whether the Legislature intended and had power to provide that the courts of this state should by substituted service acquire jurisdiction of the person of a defendant under such conditions.

We are told that the Legislature used the words ‘residing within the State’ as synonymous with ‘domiciled within the State.’ Doubtless such words are frequently used ‘even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. * * * Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence...