
    Philip Appelbaum, Appellant, v. The Star Fire Insurance Company of Louisville, Kentucky, Respondent.
    First Department,
    October 19, 1906.
    Process — service of summons on foreign insurance corporation—judgment by default opened on terms.
    Service of a summons upon a foreign insurance, corporation, made pursuant to section 30 of the Insurance Law, need not be made personally upon the State Superintendent of Insurance. If he admits due service thereof and sends the summons and complaint to the home office of the cbmpany the service is good. When a foreign insurance corporation received a summons and complaint so served on the State Superintendent of Insurance but mislaid the same, and made default in appearance, a judgment taken on the default should not be set aside on account of irregular service of the summons, but should be opened on terms and the defendant let in to defend:
    Appeal by the plaintiff, Philip Appelbaum, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on .the 21st day of August, 1906, vacating and setting aside a judgment theretofore entered in this action and opening the defendant’s default.
    
      James A. Douglas, for the appellant.
    
      S. J. Rosenblum, for the respondent.
   Ingraham, J.:

This action was commenced against.a foreign insurance company to recover for a loss covered by a policy of insurance. Process was served upon the Superintendent of Insurance at Albany on the 1st day of June, 1906, and service of process was duly admitted by him under section 30 of the Insurance Law (Laws of 1892, chap. 690). It appears that the Superintendent of Insurance sent the summons and complaint served on him to the defendant at its home office, which was duly received, but mislaid, and in consequence of that mistake appearance was not entered in time. The defendant claims that the service was irregular because it was not made personally upon •the Superintendent of Insurance, but the Superintendent admitted on behalf of the defendant due service of the summons and complaint, and we think there can be no question but that'the service was regular. The motion to set 'aside the judgment on account of irregular service should not have been granted. . The relief asked for by the defendant was also to .open its default and allow it t® come in and defend, and as the court imposed terms ás a condition for allowing the defendant to answer, it is quite apparent that the motion that was granted was to open the default and not to set aside the judgment upon the ground that the service of process was irregular. We think it was quite proper for the court to open the default under the circumstances. There was no question as to the solvency of the defendant and that the terms imposed by the court were sufficiently onerous.

It follows that the order appealed from opening the default and allowing the defendant to come in and defend the action should be affirmed, with ten dollars costs and disbursements.

O’Bbien, P. J., Clabke, Houghton and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed.  