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Erickson v. Macy

Court of Appeals of the State of New York
Apr 19, 1921
131 N.E. 744 (N.Y. 1921)


Argued February 28, 1921

Decided April 19, 1921

Charles Van Voorhis for appellant. Edward Harris for respondent.

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.)

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. (Sec. 382.)

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, section 3078¼e, page 617.) The enactment of that section by Congress was within its power. ( Stewart v. Kahn, 78 U.S. 493; Mayfield v. Richards, 115 U.S. 137; Mondou v. New York, N.H. H.R.R. Co., 223 U.S. 1; Hoffman v. Charlestown Five Cent Savings Bank, 231 Mass. 324; Grand Trunk Western Railway Co. v. Thrift Trust Co., 115 N.E. Rep. 685; Konkel v. State, 170 N.W. Rep. 715; Pierrard v. Hoch, 191 Pac. Rep. 328.)

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 Wheaton, 316) that the nation on those subjects on which it can act must necessarily bind its component parts.

The United States Constitution, article 6, subdivision 2, declares: "This Constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every state, shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

By said Civil Relief Act it is further expressly provided: "The provisions of this act shall apply to the United States, the several states and territories, the District of Columbia, and all territory subject to the jurisdiction of the United States, and to proceedings commenced in any court therein, and shall be enforced through the usual forms of procedure obtaining in such courts or under such regulations as may be by them prescribed." (U.S. Compiled Statutes, supplement 1919, section 3078¼aaa, page 614.)

The Code provision of this state prescribing the time within which an action can be brought on a promissory note after the cause of action accrues was by said Civil Relief Act modified and amended as if the federal statute had been enacted by the legislature of this state and included as an amendment in our Code of Civil Procedure.

The federal statutes quoted do not affect the jurisdiction of the courts of this state or in any way prescribe or stay proceedings therein. They simply extend the time in which an action can be commenced against a person in military service by enacting 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" such person. The plaintiff was mistaken in stating to the court on the application for the order of publication that there had not been any exception extending the running of the Statute of Limitations on his cause of action or enlarging the time. The time for the commencement of an action on the note had been extended and enlarged by the period of military service of the defendant. The order was granted upon the theory that under section 382 of the Code of Civil Procedure the time for the commencement of an action on the note would expire on the 29th day of June, 1918, and that an order directing the service of the summons upon the defendant by publication could be made pursuant to section 438, subdivision 6, of the Code of Civil Procedure. That subdivision of said section provides that: "Where the defendant is a resident of the state or a domestic corporation; and an attempt was made to commence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto as fixed in that chapter; and the limitation would have expired, within sixty days next preceding the application, if time had not been extended by the attempt to commence the action."

That subdivision of said section did not authorize the making of the order in this case because the limitation of the time to commence the action had not and could not expire until some time after the order was made.

The plaintiff urges that the federal statutes should be construed to permit the publication of the summons in accordance with the order granted because if the time that a defendant is in military service is not included in computing the period of limitation prescribed by the Code it will lead to great confusion and uncertainty in regard to the time when the Statute of Limitations in a given case will expire.

In many cases, among others absence for a time of a debtor from the state, it was possible to encounter uncertainty and confusion of fact in computing the time when the Statute of Limitations in a given case would expire under the Code of Civil Procedure as it existed prior to the enactment of the federal statute.

It should also be suggested that a holder of a cause of action is not necessarily confined in his remedy thereon to the particular subdivision of the Code of Civil Procedure mentioned, nor to enforcing his remedy in this state.

The provision of the Code of Civil Procedure and of the federal statute lead inevitably to the conclusion that the order of publication in this case was improperly granted. The provisions thereof are too plain to permit of a different construction.

The order should be reversed, and motion to set aside the service of the summons by publication should be granted, with costs in all courts, and the questions certified should be answered as follows: The first in the affirmative, and the second, third and fourth in the negative.


Order reversed, etc.

Summaries of

Erickson v. Macy

Court of Appeals of the State of New York
Apr 19, 1921
131 N.E. 744 (N.Y. 1921)
Case details for

Erickson v. Macy

Case Details

Full title:A. WENTWORTH ERICKSON, Respondent, v . SILVANUS J. MACY, Appellant

Court:Court of Appeals of the State of New York

Date published: Apr 19, 1921


131 N.E. 744 (N.Y. 1921)
131 N.E. 744

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