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1900]

Olean St. R. Co. v. Fairmount Const. Co.

two were discussing the matter on their first meeting, a process server stepped up and served a summons on such president in the creditor's action on the claim against the corporation. Held, that, even if the circumstances did not indicate that the creditor had fraudulently enticed such president into the state for the purpose of obtaining service on the corporation, the service should be set aside, as the creditor was bound to give such president a reasonable opportunity to leave the state after the termination of the conference.

Appeal from special term, Cattaraugus county.

Action for money loaned by the Olean Street-Railway Company against the Fairmount Construction Company and others. From an order denying a motion to set aside the service of the summons and complaint, defendant appeals. Reversed.

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT,-continued.

the jurisdiction voluntarily and without any artifice or inducement on the part of the person for whom the service is made.

Atlantic & P. Tel. Co. v. Baltimore & O. R. Co., 46 Super. 377.

b. When presence obtained by resort to criminal proceedings.

Service of an order of arrest in a civil action or other process therein will be set aside if made upon a party brought within the jurisdiction by requisition on a criminal charge, at the instance of the party in whose behalf the service was made and with his design to thereby effect the same. Lagrave's Case, 14 Abb. N. S. 333 (note)

And this rule was applied where the service of process was made in behalf of certain of the creditors of the person served, who combined and contributed with other creditors, not to collect their claims, but for the purpose of bringing the fugitive to justice and punishment, and a requisition in extradition was obtained by an officer employed by their committee, which criminal proceedings would not have been otherwise instituted.

Id.

Where a person is unlawfully arrested on an alleged criminal charge committed without the jurisdiction and is detained under such arrest for the purpose of compelling settlement of a demand claimed to have been fraudulently incurred elsewhere, and such purpose proving ineffectual, an order of arrest in a civil action is obtained and he is arrested under it, there is a clear abuse of the process of the law, and the order of arrest will be set aside.

Benninghoff v. Oswell, 37 How. Pr. 235.

Appellate Division.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

Wade & Stevenson (A. C. Wade, counsel) for appellant.

Cary, Rumsey & Hastings (Allen J. Hastings, counsel) for respondent.

[Nov.

ADAMS, P. J. The defendant, the Fairmount Construction Company, is a foreign corporation organized and existing under the laws of the state of New Jersey. At the times hereinafter mentioned Clarence P. King was the defendant's president, and resided in the city of Philadelphia. The plaintiff is a domestic corporation, with its place of business in the city of

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION of Court,-continued.

And an arrest in a civil action will be set aside where prior thereto the plaintiff's clerk, without legal grounds therefor, obtained a warrant against the defendant in Philadelphia on the charge that he was a fugitive from justice, and the defendant to avoid "a requisition from Albany" and publicity consented to go with the clerk to New York where, upon his arrival, the service of the first mentioned order of arrest was made.

Smith v. Meyers, 1 T. & C. 665.

Creditors or other persons who were not connected with criminal proceedings by which a person was brought within the jurisdiction may, however, cause civil process to be served upon him in actions in which they are plaintiffs.

Lagrave's Case, 14 Abb. N. S. 333 (note)

Adriance v. Lagrave, 59 N. Y. 110; Rev'g 1 Hun, 689.

Bank of the Metropolis v. White, 26 Misc. 504; 91 St. Rep. 460; 57 Supp.

460.

Slade v. Joseph, 5 Daly, 187.

Williams v. Bacon, 10 Wend. 636.

And the tendency of some of the cases is to extend this rule to persons who took part in the institution of the criminal proceedings, but without design or intent to thereby effect service of process in a civil action.

Adriance v. Lagrave, 59 N. Y. 110.

Browning v. Abrams, 51 How. Pr. 172.

Thus in Browning v. Abrams, just cited, it was held that where a de

1900]

Olean St. R. Co. v. Fairmount Const. Co.

Olean, Cattaraugus county, where its president, Wilson R. Page, resides. The summons herein was issued and the complaint verified by Page on the 25th day of May, 1900, and on the 29th day of June following they were personally served within the state upon John Forbes, the appellant's co-defendant. At this time Clarence P. King was claiming that the plaintiff herein was indebted to him in the sum of $674.44 for money loaned to the plaintiff on the 2d day of December, 1897, and was corresponding with Page, as president of the plaintiff, with a view to having his claim adjusted and paid. In answer to a letter demanding payment, Page wrote King that, if he would meet him in New York in the latter part of the week of July

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT,-continued.

fendant was extradited from another state on an indictment for grand larceny and was tried and acquitted, he might be arrested at the suit of the party who procured the indictment and extradition, in a civil action, when there was no evidence of any bad faith in causing the extradition, the same being done solely for criminal punishment.

The court, in the case last cited, based its decision on the plaintiff's intent in the institution of the criminal proceedings, taking the position that his participation therein was immaterial if characterized by good faith.

c. When presence obtained by misrepresentation or other improper means.

Where the defendant was induced by plaintiff's agent to come within the jurisdiction of the court, ostensibly for a certain specified purpose, but in reality for the purpose, on the part of the plaintiff, of obtaining an adjustment of a controversy between plaintiff and a third person, with which defendant was connected, but failing in that purpose, the plaintiff caused a summons to be served on him, such service should be set aside, as having been made by artifice.

Allen v. Wharton, 36 St. Rep. 558; 13 Supp. 38; 20 Civ. Pro. 121.

Likewise, service of a summons will be set aside which was made upon the defendant when he came within the jurisdiction of the court in response to a letter from the plaintiff's clerk that he would meet defendant at a specified time and place within the jurisdiction, the defendant supposin that the writer desired a business interview.

Wyckoff v. Packard, 20 Abb. N. C. 420.

Service of summons and order of arrest upon a nonresident who volun

[Nov.

Appellate Division.

15, 1900, he thought they could "come to some conclusion." To this request King assented, and suggested the 17th day of July as the day for meeting, whereupon Page again wrote King that he would meet him at the Astor House at 12 o'clock noon, on Saturday, July 21st. The parties met at the time and place last mentioned, and King presented his claim, which Page said he could not settle until he had seen a former treasurer of the plaintiff; and while conversing in regard to the matter a process server walked in, and served the summons and complaint in this action upon King, and thereupon the interview between the parties terminated. A motion was thereafter made to vacate such service upon the ground that King was induced by

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT,-continued.

tarily came into the state and submitted to such service under an agree ment that the case should be tried at once, should be set aside, where the plaintiff refused to proceed with the trial and demanded a jury, by reason of which the trial was postponed to a time at which defendant's occupation rendered it impossible for him to attend.

Graves v. Graham, 19 Misc. 618; 78 St. Rep. 415; 44 Supp. 415.

And the appearance by the defendant, after notice of plaintiff's unwillingness to proceed with the trial does not operate as a waiver of the agreement of the latter.

Id.

Service of summons will be set aside when made upon the defendant while in the state solely in pursuance of a letter from plaintiffs to attend to business, they proposing to pay his expenses "one way" and saying that the business concerned them both, and the general language of the letter was such as to dispel any apprehension defendant might have of being sued. Dunham v. Cressy, 21 St. Rep. 266; 4 Supp. 13.

The court is justified in setting aside the service of an order of arrest made when the defendant, a resident of another state, was in New York City in response to a letter from the plaintiffs asking him to call upon them before attending a certain meeting of creditors in which all the parties were interested, although the defendant did not arrive in New York until after the date originally fixed for the meeting, and the plaintiffs swear that they had no intention of arresting him until after they had conversed with him, when they found his statements very unsatisfactory.

Higgins v. Dewey, 34 St. Rep. 692; 13 Supp. 570.

1900]

Olean St. R. Co. v. Fairmount Const. Co.

some scheme or device to come within the jurisdiction of the courts of this state in order that service of process might be obtained upon him; and it must, of course, be conceded that, if the truth of the appellant's contention were clearly established, service secured by such means should not be permitted to stand; for the court will not sanction any attempt by fraud or misrepresentation to bring a party within its jurisdiction. Snelling v. Watrous, 2 Paige, Ch. 314; Carpenter v. Spooner, 2 Sandf. 717; Metcalf v. Clark, 41 Barb. 45; Beacom v. Rogers, 79 Hun, 220; 61 St. Rep. 364; 29 Supp. 607. The plaintiff's president, however, denies that he invited Mr. King to come to the city of New York for the purpose of obtaining service upon him. On the contrary, he declares that when he wrote King suggesting that city as the place of meeting he did not even

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT,-continued.

Service of a summons will be set aside where the same was made upon a nonresident of the jurisdiction whose presence therein was brought about by a forged telegram, although the officer making the service had no knowledge of such telegram, and no direct connection is shown between it and the plaintiff, but the evidence shows that he had employed the officer and an agent to watch for the defendant, at the place where service was made, on the two previous days, and on the third, the date of service, the agent again procured his attendance there.

Steiger v. Bonn, 59 How. Pr. 496.

The mere fact that the person employed to serve process upon a person from without the jurisdiction sought an interview under the plea of other business does not affect the validity of service made on a subsequent occasion when that excuse was not made.

Atlantic & P. Tel. Co. v. Baltimore & O. R. Co. 46 Super. 377.

Service of a summons and complaint and order of arrest is properly sustained where the same was made upon a resident of Russia, who was fleeing to this country under an assumed name and had taken a steamboat for Castle Garden where he must land, and such service was made while he was upon such boat, but without any force or attempted control over his

movements.

Ziporkes v. Chmelniker, 15 St. Rep. 215.

In the case last cited, there was no evidence of force in effecting the

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