
    John J. Tierney, Appellant, v. Helvetia Swiss Fire Insurance Company, Respondent.
    Second Department,
    May 6, 1910.
    Process—jurisdiction of foreign defendant — waiver of defects — service of summons upon Superintendent of Insurance after revocation of his authority — acts constituting waiver.
    A failure to obtain jurisdiction of a foreign defendant by proper service of process may be waived, as where he appears generally in the action.
    Thus, although a designation of the State Superintendent of Insurance by a foreign corporation as a person upon whom service of process may be made was lawfully revoked after the defendant ceased doing business in this State, so that service of process on the Superintendent did not confer jurisdiction, the defect is waived, nevertheless, where the defendant moved to open a judgment taken against it by default and accepted an order to that effect, not granted as a matter of right, but as a favor, and complied with the condition of the order requiring it to interpose an answer.
    Under such circumstances the defendant will not be permitted to serve an amended answer setting forth the lack of jurisdiction by reason of the fact that service was made upon the Superintendent of Insurance after his authority had been revoked.
    Appeal by the plaintiff, John J. Tierney, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of March, 1910, granting leave to the defendant to serve an amended answer.
    
      Hoy all Victor [=7. Hamjpden Dougherty, Jr., with' hiin on the brief], for the appellant.
    
      Frederick B. Campbell \_Chartes M. Turell with him on the brief], for the respondent.
   Burr, J.:

Defendant is a foreign corporation created and existing under and by virtue of the laws of the Republic of Switzerland. Plaintiff brings this action as the assignee of fourteen separate judgments recovered by various plaintiffs against said defendant in the Circuit Court of the United States for the.northern district of California. The summons -in this action- was served on the Superintendent of Insurance of the State of New York on the 25th day of September, 1907. Defendant asks leave to serve an -amended answer, setting up as an affirmative defense that on the 22d day of June, 1896, forthe purpose of complying with the law of the State of New York as a condition precedent to transacting the business of fire insurance within that State, it duly filed in the office of the Superintendent of Insurance a written appointment of said' Superintendent as its tru® and lawful attorney upon whom process of law in any action or proceeding against it might be served ;' that on the 31st of October, 1901, the defendant ceased to transact within the State of New York any business of fire insurance and since that time it has not transacted within this State any such business; and that on the 10th day of September, 1907, an instrument in writing was duly executed revoking the authority of said Superintendent as the person upon whom legal process against it might be served within the State of New York, which written revocation was duly filed in the office of the Superintendent of Insurance on the 24th day of September," 1907.

If plaintiff was not within the. class, intended to be. benefited by the requirement that said power of attorney be' filed, such revocation was effective and the service of the summons in this action upon the Superintendent of Insurance was a nullity. (Hunter v. Mutual Reserve Life Ins. Co., 184 N. Y. 136; Badger v. Helvetia Swiss Fire Ins. Co., 136 App. Div. 31.) “ It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction upon him, or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service.’” (Grant v. Cananea Consolidated Copper Co., 117 App. Div. 576.) But defect in obtaining jurisdiction of the person by service may be waived and jurisdiction conferred by consent. (Farmer v. National Life Assn., 138 N. Y. 265; Reed v. Chilson, 142 id. 152; Lynde v. Lynde, 41 App. Div. 280.)

The question for consideration, therefore, is, conceding that the service of the summons in this action was ineffective, has defendant waived the defect in service and consented to submit itself to the jurisdiction of this court. After the service of the summons and on the 9th of October, 1907, the defendant appeared specially and tiled a petition and bond to remove the action into the United States court. This was the first act of waiver, since not only was it obliged to but it did allege that this action was pending against it, and if the service was a nullity it was under no obligations to pay any attention to it. But it did more. The proceedings to remove were fatally defective, and subsequently the case was remanded to the State court. On October 31, 1907, while the question of the sufficiency of the proceedings to remove was pending and undetermined, plaintiff entered judgment by default in this action in the State court. On the eighteenth of November, defendant moved to open the default and to vacate the judgment upon two grounds, first, that it was irregular since the proceedings had been removed to the United States court, and, second, as matter of favor, if the court should hold that the judgment was properly entered. In the first' instance an order was entered vacating the judgment as irregular on the ground that the action was no longer pending in the State court. On appeal the order was modified so that the default was. opened, not as a matter of right, but as matter of favor, and defendant was given permission to answer upon condition that the judgment theretofore entered should stand as security. (Tierney v. Helvetia Swiss Fire Ins. Co., 126 App. Div. 446.) Defendant accepted this favor with the attendant condition, interposed .an answer, the case was thereupon placed on the calendar and it is now awaiting trial. There can be no question'that the conduct of the defendant in this case amounted to a waiver of any defect of obtaining jurisdiction of its person by service', and that it consented to submit to the determination of this court the questions in controversy between it and the plaintiff. (Tierney v. Helvetia Swiss Fire Ins. Co., supra; Farmer v. National Life Assn., 138 N. Y. 265.) • An attempt to withdraw .its consent that'the.court should have jurisdiction of its person and set up as a defense facts tending to oust the court of jurisdiction would; after this long delay, prejudice the plaintiff,, and for .that reason the favor which defendant seeks, of being permitted to serve an amended answer, should not have been granted. (Code, Civ. Proc. § 723; Doyle v. Carney, 190 N. Y. 386; Johnson v. Phœnix Bridge Co., 133 App. Div. 807.)

There is some conflict of authority as to whether, if jurisdiction of the person was not obtained in the first instance, this defect can be set up by answer, or whether it must be raised by special appearance upon a motion for that purpose. There is a distinction between raising the question of jurisdiction of the subject-matter (Manning, Maxwell & Moore, Inc., v. Canadian Locomotive Co., Ltd., 120 App. Div. 735) and raising the question of jurisdiction of the person! (Reed v. Chilson, 142 HN. Y. 152.) In the latter case the court, referring to the objection that jurisdiction of the person has not been obtained, say : When a party does, not intend to subject himself to the jurisdiction of the court he must appear specially for the purpose of raising the question of jurisdiction by motion, or he may allow the plaintiff to go on and take judgment by default without affecting his rights, since no judgment entered without- service of process in some form could bind the defendant, and the question of jurisdiction wpuld protect him-at any stage of the proceedings for its enforcement, provided it has not been waived by his own act. But if the defendant elects to. come before the court and there try the questions, he cannot afterwards deny the-jurisdiction, or be heard to claim that'it was not a voluntary appearance. The court had jurisdiction .of the subject of the action.” It is not necessary for us to determine in this case whether the question of jurisdiction of the person could be, raised by answer, since, in our opinion, ii it could, defendant should not now be permitted tp raise it. , '

We think, therefore, that the order of the Special Term was improperly made, and that it should be reversed, with ten dollars costs and disbursements, and the motion for leave to serve an amended answer denied, with ten dollars costs.

Thomas, Etch and Cabe; Jj., concurred.

Order reversed,-, with ten dollars costs and disbursements, and motion for leave to serve an amended answer denied, with ten dollars costs.  