
    McElroy v. Continental Ry. Co.
    
      (Supreme Court, General Term, Second Department.
    
    July 9, 1889.)
    1. Judgment—By Default—Setting Aside—Laches.
    Service of summons and complaint was made upon defendant’s director, the return stating that the other officers were non-residents of the state, and judgment hy default obtained against it in May, 1884. Defendant learned of the judgment early in 1885, but made no motion to set it aside until December, 1887. In the mean time the judgment had been sued on in Pennsylvania, to which suit defendant in-
    
      terposed the defense of payment, but made no pretenso that the New York court had not acquired jurisdiction; the affidavit of defense expressly alleging that the action “had been commenced” in New York. The Pennsylvania suit resulted in judgment for plaintiS. Held, on motion to set aside the original judgment, that in view of defendant’s loches every possible presumption is to be indulged in favor of the judgment.
    
      Z. Same—Jurisdiction—Foreign Corporation. "
    Where it appears from the papers in the case that the contract sued on was made in New York, and there is nothing to show that the services thereunder were not rendered here, the objection that the court aquired no jurisdiction because defendant had no property in the state, and the cause of action presumably did not arise therein, cannot prevail.
    Appeal from special term, New York county.
    Defendant company appeals from an order denying its motion to set aside a judgment entered by default in this action.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ..
    
      S. D. Oozzens, for appellant. Moody B. Smith, for respondent.
   Van Brunt, P. J.

The judgment in this action was entered on the 3d of May, 1884, upon an affidavit made by one Martin that he had served the summons and a copy of the annexed complaint on the defendant by delivering to .and leaving the same with Daniel Messmore, one of the directors of said company, at 19 Park Place, in the city of New York; that at the date of such service the same could not be made upon the president, treasurer, or secretary of said company with due diligence within the state of New York, for the reason that all of said officers were non-residents of the state of New York, and noneof them could be found therein. The now complaining directors learned -of said judgment early in the year 1885, but no motion to set the same aside was made until December, 1887, when the motion was made, from the order denying which this appeal is taken. In the mean time the defendant, which is a corporation chartered by the states of New Jersey and Pennsylvania and other states, as stated in the papers upon the part of the defendant, was sued upon such judgment in Pennsylvania, and set up as a defense in said action that the plaintiff, subsequent to the commencement Of the action in the supreme court of the state of New York, which resulted in the judgment sued upon, had received from said company payment. Such proceedings were thereupon had in the court in Pennsylvania that judgment was entered in favor of the plaintiff and against the defendant, for want of a sufficient defense, in July, 1887. There was no pretense at the time this defense was put in but that the action in this court was properly commenced. In fact, in the .affidavit of defense it is alleged as having been commenced, which could not have been the case if the court had not acquired jurisdiction by reason of the service of the summons. The objection that the affidavit of service was defective might very well have beensustained had the defendant contented itself with moving to set aside the judgment because of the defects in such affidavit, and not have relied upon the affidavits served with the motion papers. Under these circumstances the plaintiff had a right to reply to the new affidavits which were served as the basis of the motion, and it is upon the facts as developed upon all these affidavits and papers that it must be determined as to whether the court had acquired jurisdiction or not. In reference to this we think the court below came to a correct conclusion. It is impossible to conceive that the defendant should have rested quietly under this judgment for over two years, and have allowed itself to be sued in Pennsylvania upon the judgment, without questioning its validity, had it not known that the supreme court liad acquired jurisdiction by the manner in which the summons .in this case had been served. But after it had waited for two years, and allowed itself to be sued in Pennsylvania upon this judgment, and after it had failed in its defense to this suit, then it would appear that the corporation began to be of the opinion that the action in the supreme court had not been properly commenced, although in the affidavit of defense in the Pennsylvania suit it was sworn that it had been commenced. We think, under these circumstances, that the claims now made are of so suspicious a character that the court, unless thoroughly satisfied of the facts set forth in the affidavits of the defendant, should not set aside a judgment after this lapse of time, and after the plaintiff had been allowed to acquire rights in other states thereunder. The facts disclosed by the affidavit of the plaintiff clearly show that sufficient had been done from which the court might reasonably infer that service could not be made upon the president, treasurer, or secretary of the company, because they could not be found with due diligence within the' state of New York.

The further objection that service on the director is bad because the defendant had no property in the state, and the cause of action presumably did not arise here, cannot prevail. It appears from the papers in this action, that although the defendant was a foreign corporation, yet that the contract was entered into in this state, and although the plaintiff was employed as an engineer in reference to the construction of the road, (but where such railroad or proposed railroad was to be situate does not appear,) it also appears from the answer of the defendant in the Pennsylvania suit that it was as consulting engineer that the plaintiff was employed; and it might very well be, in the absence of any proof as to the services having been rendered elsewhere, that the major part of them were rendered in the state of New York, and therefore the court acquired jurisdiction. In fact, it seems to us that, in view of the failure to attack this judgment before, and of the failure to raise any objection to it in the proceedings in the state of Pennsylvania, every presumption which may be indulged in upon the face of the papers is to be construed in favor of sustaining the j udgment. The defendant suggests that the acquiescence upon its part was in bad faith, and in pursuance of a fraudulent scheme of those parties, of which the defendant’s creditors were to be the victims, and that therefore this acquiescence did not bind the defendant. In answer to this it is sufficient to say that the very parties who now' are moving to set aside this-judgment are the ones -who were made acquainted with its existence as early as the year 1885, and prior to the commencement of the action in Pennsylvania. There is no pretense whatever but that all these parties were fully aware of the proceedings in Pennsylvania, and yet none of them ever seem to-have thought that the supreme court had not acquired jurisdiction until after they had been defeated in the Pennsylvania action. It would seem, rather,, that the idea of the want of jurisdiction arose from the necessities of the case,, rather than from a belief in the facts going to show want of jurisdiction. It seems to us, therefore, that there was no sufficient ground for granting the motion to set aside this judgment, and that the order should be affirmed, with. $10 costs and disbursements.

Barrett, J.

I concur. The cases cited by the appellant (Carleton v. Carleton, 85 N. Y. 314; Kennedy v. Trust Co., 101 N. Y. 489, 5 N. E. Rep. 774) refer to orders of publication. There jurisdiction to grant the order depends upon the sufficiency of the affidavit. Here jurisdiction depends upon the fact, not merely upon the affidavit, of service. A defective affidavit of service may be amended, and the fact of tlie service shown. Thereupon the judgment may be permitted to stand. As to the cause of action. The contract sued on was made in this state, and there is a fair presumption, from its character and the averments of the complaint, that payment was to be-made here; also, from the proofs, as suggested by the presiding justice, that it was in part performed here. Upon the other questions discussed I have no-doubt.  