FARMER v. NATIONAL LIFE ASSOCIATION

FARMER v. NATIONAL LIFE ASSOCIATION. U. S. Circuit Court for the Eastern District of New York; May, 1892. 11. Appearance.] The filing of a petition for the removal of a cause from a state to a federal court and the proceedings upon such petition, are not regarded as a general appearance by-defendant ; and after such removal therefore he may move to set aside the service of process upon the ground of irregularity in the process or its service. 2. Service; summons served on the superintendent of insurance] Service of a summons upon the superintendent of the insurance department as the attorney of a life insurance company organized in another state, must be made by delivering a copy to the superintendent; sending him a copy by mail is insufficient. 3. The same] The compulsory power of attorney given by a life insurance company organized under the laws of another state, to the superintendent of insurance, under L. 1884, c. 346, appointing him to be the attorney of such company upon whom process may be served in this state, does not authorize the superintendent to waive an irregularity in the service or to give any admission of service. Motion to set aside an attempted service of a summons. Thomas Farmer attempted to bring an action against the National Life Association, a life insurance company-organized under the laws of the State of Connecticut, in the N. Y. supreme court. The cause was removed to U. S. circuit court on defendant’s petition. It appeared that plaintiff attempted to serve the summons upon the defendant in the following manner: The plaintiff’s attorney, mailed a copy of the summons enclosed in an envelope, addressed to the Superintendent of the Insurance Department of the State of New York. The superintendent of the Insurance Department acknowledged the service of the summons as follows: “ I admit the service of process on me as attorney for the National Life Association of Hartford, Conn., made by you in behalf of Thomas Farmer, pursuant to chapter 346, Laws 1884. I have sent to said company by registered mail today, copy of the papers served on me. Fee $2, receipt of which is hereby acknowledged.” [Signature.] The defendant had in the language of the statute* Laws of 1884, Chapter 346, appointed the superintendent of insurance “ to be the true and lawful attorney of such, company in and for this State, upon whom all lawful process in any action or proceeding may be served with the same effect as if the company or association existed in this. State.” Defendant moves in the U. S. circuit court to set aside the service of the summons thus attempted. Roger Foster, for the motion. I. The filing of a petition for the removal of a cause from a State to a federal court and the proceedings upon such a petition are not the equivalent of a general appearance ; and after such a removal, the defendant may move to set aside the service of process upon the ground of a defect or irregularity in the process or in the service of the same (citing Parrott Alabama Gold Life Ins. Co., 5 Federal Rep. 391 ; Atchison v. Morris, 11 Id. 582; Small v. Montgomery, 17 Id. 865 1 Miner v. Markham, 28 Id. 387; Perkins v. Hendryx, 40 Id. 657; Golden v. Morning News, 42 Id. 112; Porter Land & Water Co. v. Baskin, 43 Id. 323 ; Clews v. Woodstock Iron Co., 44 Id. 31; Reifsnider v. American Imp. Pub. Co., 45 Id. 433 ; Bentlif v. London & Colonial Finance Corp. Ld., 44 Id. 667 ; Estes v. Knickerbocker Life Ins. Co. (N. Y. Common Pleas) Daily Register, Nov. 17, 1882 ; Friedlander v. Pollock, 5 Coldwell (Tenn.) 490 ; Forrest v. Union Pac. R. Co., 47 Id. 1 ; York v. Texas, 137 U. S. 15). II. Service by mail was insufficient (citing Code Civ. Pro. §§431, 432 ; Orland v. Agricultural Ins. Co. (Maryland Court of Appeals 18 Ins. L.J. 151). III. The superintendent of the insurance department has no power to waive an irregularity in the service or to give an admission of service. A power of attorney is to tie strictly construed (citing Craighead v. Peterson, 72 N. Y. 279 ; Rossiter v. Rossiter, 8 Wend. 494; Danby v. Coutts, L. R. 29 Ch. D. 500; Hodge v. Combs, 1 Black (U. S.) 192; Whitly v. Barker, 1 Root (Conn.) 406; Millay v. Whitney, 63 Me. 522; Logan v. Patterson, 1 Blackf. (Ind.) 252; Moore v. Speed, 55 Mich. 84). Statutory substitutes for personal service are always strictly construed (citing Amy v. Watertown, 130 U. S. 301; Pollard v.Wagener, 13 Wis. 569; Wright v. Douglass, 3 Barb. 555 ; Cumberland Coal Co. v. Sherman, 8 Abb. Pr. 243 ; Cook v. Farren, 34 Barb. 95 ; Richardson v. Western Home Ins. Co., 8 N. Y. Supp. 875 ; Read v. French, 28 N. Y. 285). Judge & Durack, opposed. [MAJORITY — BENEDICT, J.,] BENEDICT, J., granted the motion without opinion.