Shushereba v. Ames

• Decision Date: 10 February 1931
• Citation: 255 N.Y. 490
• Court: New York Court of Appeals Court of Appeals
• Parties: STEVE SHUSHEREBA, Respondent, v. BETTY W. AMES, Appellant.

255 N.Y. 490

175 N.E. 187

SHUSHEREBA

v.AMES.

Court of Appeals of New York.

Feb. 10, 1931.

Action by Steve Shushereba against Betty Webb Ames.From an order of the Appellate Division, Fourth Department(230 App. Div. 776, 244 N. Y. S. 777), affirming an order of Special Term which denied defendant's motion to set aside a service of summons, defendant appeals, with certified questions.

Order affirmed, and questions answered.

The following questions were certified:

‘1.Did the court obtain jurisdiction of the defendant in this action by the service of the summons as made upon her?

‘2.Is section 52 of the Vehicle and Traffic Law constitutional?

‘3.Was the defendant entitled as matter of law to have the service of the summons herein vacated?’

Appeal from Supreme Court, Appellate Division, Fourth department.

Joseph R. Webster, of Rochester, for appellant.

Burton W. Sly, of Avoca, and Wilbur F. Knapp, of Bath, for respondent.

LEHMAN, J.

The defendant, appearing specially, has moved to set aside the service of the summons and complaintin an action to recover damages for injuries suffered through a collision with an automobile which, it is alleged, the defendant negligently operated upon a public highway in this state.The defendant is a resident of California.The summons was not served upon her personally within the state of New York.In accordance with the provisions of section 52 of the Vehicle and Traffic Law(Consol. Laws, c. 71), it was served here upon the secretary of state as the attorney of the defendant to receive such service.True, the defendant did not expressly appoint the secretary of state her attorney, but, under the statute, operation of a motor vehicle within this state by a nonresident ‘shall be deemed a signification of his agreement that any such summons * * * which is so served shall be of the same legal force and validity as if served on him personally within the State.’

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, the plaintiff's affidavit of compliance herewith, and a copy of the summons and complaint are filed with the clerk of the court in which the action is pending.’Where the statute has been complied with and the defendant has received actual notice, a judgment rendered is in accordance with due processof law.Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091;Gesell v. Wells, 229 App. Div. 11, 240 N. Y. S. 628, affirmed254 N. Y. 604,173 N. E. 886.Here the plaintiff has filed an affidavit intended to show compliance with the statute.It alleges that a copy of the summons was forthwith forwarded to the defendant by registered mail, and that ‘hereto is attached the return receipt therefor from the defendant.’The return receipt is upon the usual post office form.It bears a space for the ‘signature or name of addressee.’In that space appears the defendant's name.Below is a space for the ‘signature of Addressee's Agent.’In that space appears the name W. H. Ames.The defendant does not allege that she did not receive a copy of the summons by registered mail, and does not allege that she did not sign the receipt either personally or by her agent.Her motion to dismiss is based upon the sole ground that the return receipt is insufficient on its face.

We will assume, though the fact does not clearly appear, that the return receipt is not signed by the defendant personally but by W. H. Ames, claiming to be her agent.The question, then, to be decided is whether service under the statute is insufficient unless the return receipt is signed by the defendant personally.The purpose of the statute is accomplished when a defendant receives notice of the pendency of the action and opportunity to defend.It requires that notice should be sent by registered mail, and that the defendant's return receipt should be filed in order that the court, before it attempts to exercise jurisdiction, shall have assurance that such jurisdiction has in fact been acquired.After the notice has been intrusted to the mail, the plaintiff has no control over the manner of its delivery.He cannot by affidavit show that it has actually been delivered to the defendant, or even at the defendant's address.As a substitute for proof of service of notice by the affidavit of the party making such service, the statute provides for the kind of proof which is unquestioningly accepted in the ordinary affairs of life.The statute requires that the ‘defendant's return receipt’ shall be filed.It does not expressly or by fair implication require that the ‘defendant's return receipt’ shall be signed personally by the defendant.The requirement is fully complied with by filing a ...