Hunter v. Mutual Reserve Life Ins. Co. , 103 N.Y.S. 70 ( 1907 )

Houghton, J.:

This action was begun in the City Court of the city of Hew York and judgment was rendered in plaintiff’s favor. An appeal was taken to the Appellate Term of the Supreme Court, where the judgment was reversed, and, by permission, the plaintiff has appealed to this court.

The action is upon a judgment obtained in a court of general jurisdiction of the State of Horth Carolina by one Carter against the defendant upon service of process upon the Commissioner of Insurance of that State. Such judgment was assigned to this plaintiff, who brings this action, asserting that it is conclusive upon the defendant. The position of defendant is that no jurisdiction was obtained over it by the Horth Carolina court by service of process in this manner.

The validity and conclusiveness of Horth Carolina judgments against this defendant obtained for the same cause and by similar service of process have been recently considered by the Court of Appeals in two cases. The first is Woodward v. Mutual Reserve Life Ins. Co. (178 N. Y. 485), in which it was held that a valid personal judgment could be obtained against defendant in the courts of Horth Carolina by service of process upon the Commissioner of Insurance of that State where a policy had been issued by defendant to a resident of that State prior to the revocation of the designation of such Commissioner as the person upon whom process against defendant might be served. The basis of the decision was that such designation was a part of defendant’s contract of insurance with residents of the State of Horth Carolina, and that as to such policyholders the designation was irrevocable. The second case is Hunter v. Mutual Reserve Life Ins. Co. (184 N. Y. 136), where it was held that this rule did not apply to policies issued to residents of other States, claims under which were assigned to a resident of Horth Carolina after the revocation of such designation. The basis of this latter decision was that the policy not having been issued nor the claim created upon the faith of the designation of a person upon whom process might be served in that State, the defendant might revoke the same.

The present case differs in its facts from both of the above. The policy of life insurance or certificate under which the action in North Carolina was brought was issued on December 6, 1884, to one Gibson, a resident .of South Carolina, his wife being the beneficiary. On the 23d day of January, 1896, the insured and the beneficiary assigned this policy, as is claimed, with the assent of defendant to one Carter, a creditor, a resident of North Carolina, who held the the same as such assignee on the 17th day of May, 1899, when the defendant revoked its designation of the Commissioner of Insurance of North Carolina as the person upon whom process might be served upon it in that State, and, as is alleged, withdrew from business therein because of adverse legislation. Carter, continuing to hold such policy as assignee, thereafter brought action against defendant in the Superior Court of North Carolina, which is admitted to be a court of general jurisdiction, serving process upon the Commissioner of Insurance, and obtained by default the judgment which he'assigned to plaintiff and upon which this action is brought. The validity of the assignment to Carter is not questioned, and it, therefore, appears that more than three years before the attempted revocation of the designation of a.person upon whom process against defendant might be served in the State of North Carolina, a resident of that State acquired such rights and interests as flowed from the policy of insurance.

It, must be assumed that Carter took the assignment relying upon the faith of such designation, and, in our opinion, his interest in the policy was so founded upon it that as to him the designation was irrevocable. The assignment of all interest in a policy of insurance issued in another State to a resident of North Carolina years before; any attempted revocation of designation is manifestly governed by the .same principle as the issuing of a policy directly to a resident of that State.

The decision in this case is, therefore, controlled by the rule laid down in the Woodward Case (supra) rather than by that of the Hunter Case (supra). In the latter case the assignments were not made until after the revocation, and, therefore, could not have been taken on the faith of the existing designation.

Our conclusion is that the order and judgment of the Appellate Term should be reversed and the judgment of the City Court affirmed, with costs.

Patterson, P. J., Laughlin and Lambert, JJ., concurred; Scott, J., dissented.