Opinion
December 21, 1942.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Townley, Untermyer, Cohn and Callahan, JJ.
The propriety of the order for substituted service depends upon the ability of the plaintiff to secure jurisdiction of the defendant by service of the process of the Municipal Court on the Secretary of State in Albany. (Stock Corporation Law, § 25; Cons. Laws, ch. 59.) We are of the opinion that within the decisions in American Historical Society v. Glenn ( 248 N.Y. 445) and Gruber v. Wilson ( 276 N.Y. 135) such service cannot validly be made. We are aware that in those cases the defendants were nonresidents of the city of New York, but the language of the opinions would seem to apply equally where the defendant is a resident of the city of New York and process has been served beyond its territorial limits.
The determination of the Appellate Term should be reversed with twenty dollars costs and disbursements in this court and ten dollars costs in the Appellate Term, to the plaintiff, and the order of the Municipal Court affirmed, with leave to the defendant to answer or otherwise move with respect to the complaint within ten days after service of order on payment of said costs.
Determination of the Appellate Term unanimously reversed with twenty dollars costs and disbursements in this court and ten dollars costs in the Appellate Term, to the plaintiff, and the order of the Municipal Court affirmed, with leave to the defendant to answer or otherwise move with respect to the complaint within ten days after service of order, on payment of said costs.