Summary
In Simpson Chief Judge Fuld said "the State has a substantial and continuing relation with the controversy" in a case "where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it," 21 N.Y.2d at 311, 287 N.Y.S.2d at 637, 234 N.E.2d at 672, and Judge Keating's concurrence rested on the assumed constitutionality of permitting a direct action against the insurer by a New York resident even for an out-of-state accident, 21 N.Y.2d at 312-314, 287 N.Y.S.2d at 638-640, 234 N.E.2d at 673.
Summary of this case from Farrell v. Piedmont Aviation, Inc.Opinion
Argued November 1, 1967
Decided December 29, 1967
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRVING L. LEVEY, J.
William F. McNulty and Daniel J. Coughlin for appellant. Paul A. Crouch and Robert Hill Nix for respondents.
On this appeal, the defendant asks us to reconsider our recent decision in Seider v. Roth ( 17 N.Y.2d 111 ) that the contractual rights of an insured under a policy of liability insurance constitute a "debt" which is subject to attachment.
On August 13, 1964, the infant plaintiff, a resident of New York, was injured when cut by the propeller of a boat owned by the defendant, a Connecticut resident, in the waters off Madison, Connecticut. The youngster and his father brought a negligence suit against the defendant in this State. Unable to obtain personal jurisdiction over the defendant in New York, the plaintiffs had the summons and complaint delivered to the defendant at his residence in Connecticut and attached a liability policy issued to the defendant in that State by the Insurance Company of North America, a Pennsylvania corporation doing business in New York and having an office in Manhattan.
An ex parte order of attachment was entered at Special Term directing the Sheriff of the City of New York to levy on any property of the defendant within his jurisdiction sufficient to satisfy the demands of the plaintiff, and the Sheriff thereafter attached the "rights" of the defendant under a policy of liability insurance issued by North America.
The defendant moved to vacate the attachment on jurisdictional and constitutional grounds. The court at Special Term denied the motion; the Appellate Division unanimously affirmed "on constraint of Seider v. Roth" ( 17 N.Y.2d 111), and granted the defendant leave to appeal to us.
This court in 1966 held in the Seider case ( 17 N.Y.2d 111, supra) that the contractual obligation of an insurance company to its insured under its liability insurance policy constitutes a "debt" under CPLR 5201 and, as such, is subject to attachment, at the suit of an injured third party, under CPLR 6202. As noted above, the defendant upon this appeal asks us to reconsider and overrule our decision in Seider in the light of Federal constitutional issues not raised in that case. The constitutional contentions now urged are that the attachment made pursuant to the provisions of the CPLR as construed (1) offends against due process; (2) imposes an undue burden on interstate commerce in the field of insurance; and (3) impairs the obligations of the contract of liability insurance herein.
Neither of the last two constitutional arguments has, in our judgment, anything to do with the case, although it does have due process overtones. No claim is advanced, and obviously none may be made, that the defendant did not have notice of the attachment. (See, e.g., Harris v. Balk, 198 U.S. 215, 227; Holmes v. Camp, 219 N.Y. 359, 369.) Our decision turns, then, on whether the obligation of the insurer, doing business in New York, to defend and indemnify the insured (under its policy) enables the New York courts to exercise jurisdiction in rem over him.
The defendant lacks standing to raise the "interstate commerce" argument but, even assuming he may, it is answered sufficiently in Morris Plan Ind. Bank of N.Y. v. Gunning ( 295 N.Y. 324), in which we declared (p. 332) that the inconvenience caused by the attachment of a nonresident's wages, earned out of state from a railroad doing business in New York, "does not constitute an unconstitutional burden on commerce ( Davis v. C.C.C. St. L. Ry., 217 U.S. 157)". Nor is there any merit to the defendant's argument — which was not raised below — that the attachment impairs contract obligations by "literally inviting the insured to withhold * * * co-operation". If the insured does refuse to co-operate, the insurer's recourse is clear: he may withdraw and assert such lack of co-operation as a defense in any action brought against him under section 167 of the Insurance Law.
In reaching its conclusion in Seider, the court relied on its decision in Matter of Riggle ( 11 N.Y.2d 73), characterizing it as a "pertinent decision which cannot be distinguished away" ( 17 N.Y.2d, at p. 113). The Riggle case involved the continuance of a negligence action in New York following the death of the defendant Riggle who was a nonresident. To obtain such a continuance, it was necessary to have an ancillary administrator appointed and served in New York, and that could only be done, pursuant to the Surrogate's Court Act (§ 45, subd. 3), if Riggle left real or personal property in New York State. The court, after noting that the only property claimed to have been left by Riggle in New York was "the personal obligation of an indemnity insurance carrier to defend him as an additional insured under a liability policy", went on to hold that "this liability insurance policy, even though no judgment has yet been obtained against Riggle or his estate, constituted Riggle as a creditor and the insurance carrier as a debtor within the broad meaning of [Surrogate's Ct. Act, § 47] for this purpose" (11 N.Y.2d, at p. 76).
In the course of his opinion in Seider ( 17 N.Y.2d 111, supra), Chief Judge DESMOND, who wrote for the court, quoted from that excerpt and then stated (p. 114): "It is interesting to note that the dissenting Judge in Matter of Riggle conceded that the insurance company's obligation 'to defend and contingently indemnify' was a debt, but he was of the opinion, contrary to that of the majority, that the insurer was not a resident of the State within the meaning of section 47. The reasoning of the Riggle case is sound and calls for an affirmance here. Decisions just like Riggle, some of them quite old, are found in other States [cases cited]." And Judge DESMOND added (pp. 114-115): "Not only has the law question in this case been decided by Riggle but there is no policy reason against requiring the insurer to come in to New York and defend as to an accident which occurred in Vermont injuring New York residents, any more than there was in Oltarsh v. Aetna Ins. Co. ( 15 N.Y.2d 111) where for the first time we held that when New York residents were injured outside the State we would allow a direct action in New York against the insurer although there was nothing in previous New York law permitting it."
As demonstrated by a reading of the majority and dissenting opinions in the Seider case, the question whether the insurer's obligation constitutes a debt owing to the insured defendant and, as such, is subject to attachment under the CPLR was thoroughly debated and considered. It was our opinion when we decided that case, and it still is, that jurisdiction in rem was acquired by the attachment in view of the fact that the policy obligation was a debt to the defendant. And we perceive no denial of due process since the presence of that debt in this State (see, e.g., Harris v. Balk, 198 U.S. 215, supra) — contingent or inchoate though it may be — represents sufficient of a property right in the defendant to furnish the nexus with, and the interest in, New York to empower its courts to exercise an in rem jurisdiction over him. It is, of course, hardly necessary to add that neither the Seider decision nor the present one purports to expand the basis for in personam jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached, that is, the liability insurance policy. For the purpose of pending litigation, which looks to an ultimate judgment and recovery, such value is its face amount and not some abstract or hypothetical value.
The argument that our decision sanctions a "direct action" against the insurer is sufficiently answered by what we wrote in Seider v. Roth (17 N.Y.2d, at p. 114):
"It is said that by affirmance here we would be setting up a 'direct action' against the insurer. That is true to the extent only that affirmance will put jurisdiction in New York State and require the insurer to defend here, not because a debt owing by it to the defendant has been attached but because by its policy it has agreed to defend in any place where jurisdiction is obtained against its insured."
In concluding that we should adhere to Seider v. Roth, it may prove helpful to have in mind some of the considerations upon which that decision was predicated.
The historical limitations on both in personam and in rem jurisdiction, with their rigid tests, are giving way to a more realistic and reasonable evaluation of the respective rights of plaintiffs, defendants and the State in terms of fairness. (See, e.g., International Shoe Co. v. Washington, 326 U.S. 310; McGee v. International Life Ins. Co., 355 U.S. 220; Longines-Wittnauer Watch Co. v. Barnes Reinecke, 15 N.Y.2d 443. ) Such an evaluation requires a practical appraisal of the situation of the various parties rather than an emphasis upon somewhat magical and medieval concepts of presence and power. Viewed realistically, the insurer in a case such as the present is in full control of the litigation; it selects the defendant's attorneys; it decides if and when to settle; and it makes all procedural decisions in connection with the litigation. (See, e.g., Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 167.) Moreover, where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy. For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large.
The position taken by some who disagree with Seider would require that, as a matter of State policy, insurance be explicitly eliminated as the basis for the exercise of our in rem jurisdiction but this represents a judgment requiring data and information with respect to the practical effect of the Seider decision not presently available to this court.
Almost half a century ago, Chief Judge CARDOZO began his famous article, "A Ministry of Justice" (35 Harv. L. Rev. 113), with the statement that "The courts are not helped as they could and ought to be in the adaptation of law to justice". Some time thereafter, the New York Legislature created a Law Revision Commission and, more recently, the State's Judicial Conference appointed an Advisory Commission on Practice and Procedure to make studies and recommend changes in the rules and statutes governing our law. Revision of the bases for in personam jurisdiction has been the subject of recent major legislative changes. The bases for the exercise of in rem jurisdiction, however, have been carried over into the CPLR from the Civil Practice Act with little change. Under the circumstances, it would be both useful and desirable for the Law Revision Commission and the Advisory Committee of the Judicial Conference, jointly or separately, to conduct studies in depth and make recommendations with respect to the impact of in rem jurisdiction on not only litigants in personal injury cases and the insurance industry but also our citizenry generally. In the course of such studies, consideration will undoubtedly be given to the relationship inter se, of in rem jurisdiction, in personam jurisdiction and forum non conveniens. Absent new data suggesting the desirability of a departure from the general principles underlying in rem jurisdiction, as reflected in Seider, we find neither basis nor justification for departing from our holding in that case.
The order appealed from should be affirmed, with costs, and the certified question answered in the affirmative.
An automobile liability insurance company subjects itself to the laws of any jurisdiction through which the insured passes and becomes involved in an accident. Louisiana, for example, has a direct action statute. Thus, although the insurance policy was issued to the insured in Connecticut, there is little question that, if the accident had taken place in Louisiana, the insurance company could be called upon to defend the action as a party defendant in that State, provided that jurisdiction could be obtained. ( Watson v. Employers Liab. Assur. Corp., 348 U.S. 66.) And if the party injured in a Louisiana accident was a New York resident and jurisdiction over the insurer could be had in this State, we would permit a direct action to be commenced here. ( Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111.)
The constitutional justification for subjecting the insurer to such liability arises not per se because the accident took place in Louisiana but because the occurrence of the accident gave rise to a legitimate governmental interest which Louisiana has in protecting the rights of those persons injured within its borders. As the Supreme Court wrote in Watson v. Employers Liab. Assur. Corp. ( supra, p. 72): "Persons injured or killed in Louisiana are most likely to be Louisiana residents, and even if not, Louisiana may have to care for them. Serious injuries may require treatment in Louisiana homes or hospitals by Louisiana doctors. The injured may be destitute. They may be compelled to call on friends, relatives or the public for help. Louisiana has manifested its natural interest in the injured by providing remedies for the recovery of damages. It has a similar interest in policies of insurance which are designed to assure ultimate payment". (See, also, Clay v. Sun Ins. Office, 377 U.S. 179; Currie, Full Faith and Credit, Chiefly to Judgments: A Role for Congress, The Supreme Court Review, 1964, pp. 89-103.)
Similar State interests, it seems to me, would sustain a direct action against the insurer in this jurisdiction if the Legislature had authorized such actions, even though the action could not have been brought directly in the State in which the accident took place. Although no direct action statute is presently in effect, I see no policy reason for not holding that service of process on the real party defendant — the insurer — is sufficient to compel it to defend in this State, provided it transacts business here and is thus subject to the jurisdiction of our courts.
This court has on a number of occasions given effect to the strong State interest in facilitating recovery of persons injured in automobile accidents. The fact that the injury occurs outside of this State does not, of course, lessen that interest. ( Babcock v. Jackson, 12 N.Y.2d 473; Macey v. Rozbicki, 18 N.Y.2d 289, 292, [concurring opn.].)
Likewise, we have on a number of occasions recognized that the real party in interest is the insurer and we have given effect to the fiction sought to be perpetuated here only where the insurer would be prejudiced thereby. As we recently stated: "The law maintains the fiction that the insured is the real party in interest at the trial of the underlying negligence action [only] in order to protect the insurance company against overly sympathetic juries". ( Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 167.) It rejects the fiction when the policy considerations are not present. (See Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111, supra; Macey v. Rozbicki, 18 N.Y.2d 289, 292, supra [concurring opn.]; Thrasher v. United States Liab. Ins. Co., supra.)
The decision in Seider v. Roth ( 17 N.Y.2d 111) and the cases we decide today represent a recognition of realities and not fictions. It is for this reason that I concur in the result reached.
I concur but only on constraint of Seider v. Roth ( 17 N.Y.2d 111) so recently decided by this court. Only a major reappraisal by the court, rather than the accident of a change in its composition, would justify the overruling of that precedent. Yet the theoretical unsoundness of the Seider case and the undesirable practical consequences of its rule require some comment if only, perhaps, to hasten the day of its overruling or its annulment by legislation.
It is the most tenuous of nominalist thinking that accords the status of an asset, leviable and attachable, to a contingent liability to defend and indemnify under a public liability insurance policy.
The applicable statutes are CPLR 5201 (subd. [a]) and 6202. They read as follows:
"(a) Debt against which a money judgment may be enforced. A money judgment may be enforced against any debt, which is past due or which is yet to become due, certainly or upon demand of the judgment debtor, whether it was incurred within or without the state, to or from a resident or non-resident, unless it is exempt from application to the satisfaction of the judgment. A debt may consist of a cause of action which could be assigned or transferred accruing within or without the state." (5201, subd. [a])
and
"Debt or property subject to attachment; proper garnishee. Any debt or property against which a money judgment may be enforced as provided in section 5201 is subject to attachment. The proper garnishee of any such property or debt is the person designated in section 5201; for the purpose of applying the provisions to attachment, references to a 'judgment debtor' in section 5201 and in subdivision (h) of section 105 shall be construed to mean 'defendant'" (6202).
True, these contemporary statutes are designed to reach every kind of marketable and assignable property, and every kind of right that is reducible to marketable or assignable economic value. They refer to debts and property, and in the case of causes of action they must be assignable. But they are not intended or designed to reach every obligation created by contract, however inchoate, conditional, contingent, or personal. The obligation to defend and, even more, the obligation to indemnify are just such inchoate, conditional, contingent, and personal obligations. Before they come into play, there must be an external event (usually an accident) within the coverage of the policy, performance of conditions precedent by the insured, and co-operation by the insured. Even then, if the insurer's obligation to defend is fully performed, there is nothing of economic value to which the insured may make claim, receive, or assign. As to the obligation to indemnify, that does not ripen until accident, defense, and defeat resulting in judgment against the insured.
The statutes, in making intangible assets leviable and attachable, are not intended to reach the intangible right as such but instead to reach the tangibles that eventually must result from the intangible right. Thus, at the very least, before any intangible right has practical significance as an asset to be levied upon or attached, it must give promise of being translatable into an economically valuable tangible, usually cash. The instances are easiest for application of the statutes when, unlike here, the intangible right is marketable or assignable. Hence, the inappropriateness of precedents based upon life insurance policies (matured or unmatured), upon property or fidelity loss policies after loss, and the like. In each of such instances the insured's right to tangible funds has attained a cognizable probability of being translated into funds.
So much for the analysis of the rights involved, no merely theoretical matter, but one which goes to the usefulness of the legal concepts employed, which must have some root in reality. As for the effect of the rule, the practical consequences are highly undesirable. This State, and particularly its chief city, is the mecca for those seeking high verdicts in personal injury cases (see, e.g., Gilchrist v. Trans-Canada Air Lines, 27 A.D.2d 524). On the basis of the rule in the Seider case, it will be the rare plaintiff who cannot invoke the jurisdiction of New York courts, even though only quasi in rem, since it will be a very small insurance company that does not have a palpable contact with this State.
Finally, it is hardly necessary to analyze further the vulnerability of the rule, since that task was accomplished so well by the dissent of Judge BURKE in the Seider case. But the temptation is great to repeat Judge BURKE'S exposure of the fallacy underlying the rule, namely, "The existence of the policy is used as a sufficient basis for jurisdiction to start the very action necessary to activate the insurer's obligation under the policy. In other words, the promise to defend the insured is assumed to furnish the jurisdiction for a civil suit which must be validly commenced before the obligation to defend can possibly accrue" ( 17 N.Y.2d 111, 115, supra).
Adverse and strident criticism by disinterested commentators on the rule is not without significance (e.g., Prof. David D. Siegel, Supplementary Commentaries to CPLR 5201; McKinney's Cons. Laws of N.Y., Book 7B [1967 Cum. Sup.], pp. 13-21, 23-31; Comment, "Garnishment of Intangibles," 67 Col. L. Rev. 550 [1967]; 71 Dick. L. Rev. 653 [1967]).
I do not reach the constitutional issues raised. If the court was right in the Seider case, then there is no constitutional question. If it was wrong, there still might be no constitutional question. But it could not have decided the substantive question without assuming a reality in the "obligation" being attached that would satisfy constitutional standards.
Accordingly, I concur to affirm but only because the institutional stability of a court is more important than any single tolerable error which I may believe it has committed.
In my dissent in Seider v. Roth ( 17 N.Y.2d 111) I indicated why in my view there was not in that case even an attachable debt which could serve as a basis for the exercise of jurisdiction under our practice statutes. The constitutional arguments raised in this case, as well as in Victor v. Lyon Assoc. decided herewith ( 21 N.Y.2d 695), were not raised in Seider and thus it was not necessary to reach these so difficult issues in that case. In considering now the constitutionality of our claim of jurisdiction to affect the rights and interests of parties involved in Seider-type controversies, I am moved to confess agreement with the comment of Professor Siegel: "Whatever problems one can conjure up in connection with [ Seider] prove incomplete; more appear, and each partakes of the same theoretical and practical difficulties. These problems often prove so bizzare that they become difficult even to verbalize." (Professor D.D. Siegel, Supplementary Commentary to CPLR 5201; McKinney's Cons. Laws of N.Y., Book 7B [1967 Cum. Sup.], p. 16.) Seider cannot be fitted into the traditional modes of analysis ordinarily useful in considering jurisdiction, except with great difficulty, and even applying the more recently devised (progressive, if you will) approach to jurisdiction wherein the distinction between in rem and in personam jurisdiction is de-emphasized (see, e.g., Atkinson v. Superior Ct., 49 Cal.2d 338, apps. dsmd. and cert. den. sub nom. Columbia Broadcasting System v. Atkinson, 357 U.S. 569), Seider presents substantial problems. I am, however, constrained to conclude that under none of these approaches can Seider be upheld as constitutional.
It ought to be noted that under New York Life Ins. Co. v. Dunlevy ( 241 U.S. 518), an action at least initially in rem in character, as it was commenced by means of a garnishment of the insurer's obligation to pay the value of the policy, Seider might well be held unconstitutional. (See Siegel, op. cit., pp. 19-20.) I must be frank, however, to admit my uncertainty as to whether the result obtained there ought to control here. Developments in the area of jurisdiction have come a long way since 1916 when Dunlevy was decided.
Considered as but the creation of a "direct action" remedy, arrived at by way of judicial decision, rather than through the more normal fashion of legislation, and, therefore, based, in reality, if not in form, solely upon in personam jurisdiction over the insurer rather than on the existence of "property" belonging to the ostensible defendant-insured within this State, Seider is of doubtful constitutionality. Granted jurisdiction over the insurer, this State's interference with or alteration of the rights and obligations of parties to a contract of insurance issued out of State violates due process, it seems clear under Watson v. Employers Liab. Assur. Corp. ( 348 U.S. 66), unless we can show a sufficient State interest in the insurance relationship or in the underlying accident to justify such interference. (This point is discussed with particular acuity in an excellent student comment on Seider, "Garnishment of Intangibles," 67 Col. L. Rev. 550, 558-560.) Mere presence of the insurer in this State, which is all that Seider appears to require, based as it is on a highly formalistic in rem attachment approach, would not seem sufficient to establish such an interest, and even if Seider is to be read as requiring that the plaintiff must have been a New York resident at the time of the accident, these would not seem sufficient additional circumstances to warrant interference with the rights and obligations of the parties to the out-of-State contract. In Watson the Supreme Court was at pains to stress the significance of the occurrence of the injury in the forum State. The court remarked: "Louisiana's direct action statute is not a mere intermeddling in affairs beyond her boundaries which are no concern of hers. Persons injured or killed in Louisiana are most likely to be Louisiana residents, and even if not, Louisiana may have to care for them. * * * Moreover, Louisiana courts in most instances provide the most convenient forum for trial of these cases. * * * If this motion [to dismiss] is granted, Mrs. Watson, but for the direct action law, could not get her case tried without going to Massachusetts or Illinois although she lives in Louisiana and her claim is for injuries from a product bought and used there" ( supra, pp. 72-73; emphasis added).
Illustrative of the type of case Seider would appear to invite into our courts is the Vaage case (see Nationwide Ins. Co. v. Vaage, 265 F. Supp. 556 [S.D., N.Y., 1967]). Vaage, a citizen and resident of Norway, has commenced, by means of a Seider-type attachment, an action in New York based upon an automobile accident in which he was involved in North Carolina. Defendant is a North Carolina resident and the liability policy was issued there. What purpose allowing suit to be brought here, other than possibly increasing Vaage's hoped for damage award, is beyond me.
This might pose a problem under the Federal Constitution if Seider's in rem basis were carried to its logical extreme. See Harris v. Balk ( 198 U.S. 215, 223-224).
Seider may be upheld only if we may constitutionally provide for our residents (and for all who would later come into our courts, Seider would seem to allow) an umbrella of protection, including venue at the plaintiff's convenience and without any regard for the convenience of defendants or the availability of witnesses, unlimited in its extent, only if we may say to such persons that no matter which State or nation they travel to they carry with them the right to bring back to the New York courts for adjudication controversies otherwise completely local in character. I do not read Watson as allowing this and, in fact, Home Ins. Co. v. Dick ( 281 U.S. 397) may be read as barring such an extension of the regulatory power of this State beyond its territorial limits. In Dick, the Supreme Court, in language particularly apt for the Seider situation, pointed out that residence was not enough to create such jurisdiction. It there remarked: "The fact that Dick's permanent residence was in Texas is without significance. At all times here material, he was physically present and acting in Mexico" ( supra, p. 408; emphasis added; cf. Clay v. Sun Ins. Office, Ltd., 377 U.S. 179, 182). Likewise, at all times that I would consider material, to wit, when the accidents occurred, Seider and the plaintiffs in the cases now before this court, Simpson and Victor, were "physically present and acting" outside this State.
For example, in Victor v. Lyon Assoc. ( 21 N.Y.2d 695) plaintiff was injured in Danang, South Vietnam. Defendant is a Maryland corporation doing business in the Far East and the policy was issued in Okinawa. Coverage was limited to certain areas in the Far East.
Watson is in many ways analogous to developments that have taken place in the extension of State court jurisdiction under the various State "long-arm" statutes. In fact, many would urge that on the facts of that case Louisiana might have constitutionally exercised in personam jurisdiction over the out-of-State manufacturer (compare Gray v. American Radiator Std. Sanitary Corp., 22 Ill.2d 432; compare, also, Feathers v. McLucas, 15 N.Y.2d 443, 458-464, with the subsequent amendment to CPLR 302 added by L. 1966, ch. 590). Under the facts of Seider and the cases now before us I know of no authority that would support in personam jurisdiction in the courts of this State over the out-of-State defendant-insured.
The very same considerations lead me to doubt that jurisdiction in rem based upon the obligations of an insurer under a contract of insurance can constitutionally be exercised by this State in the Seider situation. Assuming even the continued utility and constitutional viability of the rule of Harris v. Balk ( 198 U.S. 215) that a debt has its situs and may be attached in any State in which the debtor is subject to in personam jurisdiction, it is clear that the obligations of an insurer under a liability policy to defend and indemnify the insured are not "ordinary debts," such as the Supreme Court was considering in Harris v. Balk (see 198 U.S., p. 223). They are contingent contractual obligations, requiring the commencement of suit against the insured (and the obtaining of a judgment with respect to the obligation to indemnify) before the insured has any claim against the ostensible "debtor" insurer. The defendant-insured has no property within the State, which is the necessary predicate for an exercise of in rem jurisdiction ( Hanson v. Denckla, 357 U.S. 235, 246), unless New York may properly (i.e., constitutionally) transform these contingent obligations into matured debts owing to the insured. This it cannot do absent a sufficient State interest in the insurance relationship or the accident. In my dissent in Seider I referred to the result obtained there as jurisdiction acquired through a "bootstrap operation" ( 17 N.Y.2d 111, 115, quoting Professor Siegel). This sort of bootstrap operation, I respectfully submit, is constitutionally impermissible under the circumstances presented in Seider and the cases now before this court.
Going further, it may well be argued that, even if these intangible interests could be considered fully matured and owing to the insured even before the commencement of an action in personam, strong arguments exist for the proposition that due process bars assigning such intangibles a situs, for attachment purposes, in New York. As mentioned above, Harris v. Balk ( supra) speaks only of "ordinary debts" and Hanson v. Denckla ( supra) may fairly be read as leaving open the question of situs for jurisdictional purposes of less simple intangibles, if not even as seriously undercutting Harris v. Balk altogether. The court in Hanson v. Denckla in discussing in rem jurisdiction pointed out that, while tangible property posed no problem for application of the rule that the property had to be within the territorial jurisdiction of the forum State for an exercise of such jurisdiction to be proper, the situs of intangibles posed quite a different problem. (See 357 U.S. 235, 246-247, supra.) The court expressly declined to decide whether the type of jurisdiction there dealt with could be exercised by more than one State (which it was at liberty to do as the parties apparently assumed the trust assets were located exclusively in Delaware). ( Ibid.) The Supreme Court is, it seems clear, peculiarly aware of developments in this area of the law (see Texas v. New Jersey, 379 U.S. 674, 678) and it might well be prepared to accept the view of the authors of a recently proposed revision of the Restatement of Conflicts that State courts ought not to exercise jurisdiction over "interests in an intangible thing which is not embodied in a document" unless "the relationship of the state to the thing and to the parties involved makes the exercise of such jurisdiction reasonable." (See Proposed Official Draft, Restatement, Conflict of Laws, 2d, Pt. I, May 2, 1967, § 65.) This would bring the test for in rem jurisdiction over intangibles having a possible situs in a number of States quite close to that obtaining for in personam jurisdiction. It might even be suggested that such property ought to be assigned a situs in a particular jurisdiction for in rem jurisdiction purposes only where the jurisdiction has some "minimum connection" with the property and "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'" ( International Shoe Co. v. Washington, 326 U.S. 310, 316; McGee v. International Life Ins. Co., 355 U.S. 220, 222; cf. Atkinson v. Superior Ct., supra.) The assigning of situs to intangibles is, as we all know, but a legal fiction (see Hanson v. Denckla, supra, p. 247; see, also, Severnoe Securities Corp. v. London Lancashire Ins. Co., 255 N.Y. 120, 123; Bankers Trust Co. v. Equitable Life Assur. Soc., 19 N.Y.2d 552, 556) and while justice or convenience may on occasion require such an assignment of situs to intangibles, considerations of the purpose for which such an assignment of situs is necessary and fairness to those claiming an interest in the subject property ought to govern the selection process. (Cf. Bankers Trust Co. v. Equitable Life Assur. Soc., supra; see, also, Texas v. New Jersey, supra.)
As the foregoing analysis makes clear, Matter of Riggle ( 11 N.Y.2d 73) in no way required the result reached in Seider. In Riggle the plaintiff had, in fact, secured in personam jurisdiction over Riggle before his death. All that was sought to be achieved there was a means of continuing the action against his estate. In terms of current jurisdictional notions this result was perfectly fair and proper. (Cf. Rosenfeld v. Hotel Corp. of America, 20 N.Y.2d 25.) What was done in Riggle should not, simply because of the form our action there took, be held to dictate the result reached in Seider. The circumstances of the two cases are entirely different.
I would reverse the order of the Appellate Division in this case, as well as in Victor v. Lyon Assoc., and remand the cases to the Supreme Court with directions that the motions to vacate these attachments be granted.
Opinion by Chief Judge FULD. All concur, Judge KEATING in an opinion and Judge BREITEL in a separate opinion in which Judge BERGAN concurs, except Judge BURKE who dissents and votes to reverse in an opinion in which Judge SCILEPPI concurs.
Order affirmed, etc. (Reargument denied, see 21 N.Y.2d 990.)