respective plaintiffs against the defendant for the amount thereof, with interest and costs.

The questions presented in these cases, or rather in No. 7, are quite different from those arising on the appeals in the Lambert and other Johnston cases. Here the respective judgment rolls merely show, on this point, proof of service on the Insurance Commissioner, and an allegation in the verified complaint that the company was doing business within the state. We may not take judicial notice of the statutes of the foreign state, but the courts of that state could take judicial notice of their own statutes, and it was not essential to the validity of the judgments that the statutes prescribing the manner in which the service of process should be made should be either incorporated in or referred to in the judgment roll. When, in such case, the sufficiency of the service, as a compliance with the statute regulating the same, is questioned collaterally in another jurisdiction, it is, of course, competent to present the statute to the court in which the jurisdiction is attacked, as was done in this case. Pringle v. Woolworth, 90 N. Y. 502. The defendant. either complied with the condition of the statute of North Carolina imposing as a condition on its right to do business within that state that it first file with the Commissioner of Insurance authority as its agent for the service of process within that state, or it violated the law in continuing to do business in that sovereignty. The allegations of the verified complaints that the defendant was doing business within the state of North Carolina were sufficient to show that jurisdiction over it there in personam could be obtained. Sheldon v. Wright, 5 N. Y. 497, cited with approval in 173 N. Y. 249, 65 N. E. 1100; Dyckman v. The Mayor, 5 N. Y. 434; Develin v. Cooper, 84 N. Y. 410; Applegate v. Lexington, etc., Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892; In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110; Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959. Since it was doing business within the state, as shown by the verified complaint, it will be presumed that it had complied with the law (Pringle v. Woolworth, supra); and therefore the record, showing service upon the Commissioner of Insurance, thus presumed to have been authorized to receive process for the defendant, was sufficient to give the court jurisdiction over defendant in personam.

Of course, the judgment was open to collateral attack here upon the ground that the court did not obtain jurisdiction over the defendant. Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. It would have been competent for the defendant, therefore, to have shown that the service was not made as recited in the judgment roll; and it was also competent for it to show, as it attempted to show in the City Court, that it was not doing business in the state of North Carolina, as alleged; but the sufficiency of the evidence on that point need not be considered, for the plaintiff showed that it had in fact filed the power of attorney with the Commissioner of Insurance, and this, under the statute of North Carolina, as construed by the courts of that state, by the Supreme Court of the United States, and by our Court of Appeals (Biggs v. Life Association, 128 N. C. 5, 37 S.

and 127 New York State Reporter

E. 955; Moore v. Mutual Reserve Fund Life Ass'n, 129 N. C. 31, 39 S. E. 637; Mutual Reserve Life Ass'n v. Phelps, 190 U. S. 147, 23 Sup. Ct. 707, 47 L. Ed. 987; Woodward v. Mutual Reserve Fund Life Ass'n, 178 N. Y. 485, 71 N. E. 10), was sufficient to show that the service upon the Commissioner of Insurance alone gave the court jurisdiction. It is not important that the plaintiff, instead of resting on the presumption of validity of the foreign judgment, doubtless in an endeavor to bring it within the decision of this court in the Woodward Case, 84 App. Div. 324, 82 N. Y. Supp. 908, unnecessarily, before resting his case, offered evidence tending to sustain the jurisdiction. The defendant was not prejudiced thereby. It is contended by appellant that, if plaintiff had not offered evidence dehors the record to sustain the judgment, the defendant would not have offered evidence thereby to impeach it. In those circumstances the judgment would be presumed valid. If the defendant desires the benefit of its impeaching evidence, the plaintiff is entitled to have his sustaining evidence treated as in rebuttal, and on that theory the judgment would be sustained, for it was shown that defendant was doing business in the state of North Carolina from January 1, 1883, until March 17, 1899, and that it complied with the statutes in force from time to time (chapter 157, p. 304, Laws N. C. 1876-77, § 3; chapter 57, p. 98, Laws N. C. 1883. § 2, superseded and repealed by chapter 54, p. 175, Laws N. C. 1899, § 62, which became in force March 6, 1899), which, so far as material to the present inquiry, only differed as to the agent to be designated for the service of process. It is not necessary to inquire whether these judgment rolls sufficiently show all jurisdictional facts to sustain them if they had been rendered in an inferior court or one of limited jurisdiction, for it is conceded that they were rendered in a court of general jurisdiction.

It is claimed, upon the authority of certain decisions of the federal courts and of other jurisdictions, that in the case of foreign corporations there is an exception to the general rule that the jurisdiction of a court of general jurisdiction both over the subjectmatter and over the person of the defendant will be presumed, and that in such case the judgment is void unless the judgment roll shows that the foreign corporation was doing business within the state at the time of service of process. Even if that rule prevailed in this state, I deem the allegations of the verified complaint sufficient proof of the jurisdictional facts, within the authority cited. I am of opinion, however, that the rule in the federal courts, which are courts of limited jurisdiction (Earle v. Chesapeake & Ohio Ry. Co. [C. C.] 127 Fed. 235; Central Grain & Stock Exch. of Hammond v. Board of Trade, 125 Fed. 463, 60 C. C. A. 299), never obtained in this state. It is urged that the alleged exception is founded on a substantial basis, and that in the case of a foreign corporation the existence of two facts is essential to the jurisdiction of the court, viz., (1) that it was doing business in the state at the date of the service of process; and (2) that service was made within the state on a duly authorized agent, and that both of these facts must appear by the judgment roll, or the judgment is void. It is

pointed out that a corporation is a creature of the state of incorporation, and has no authority to do business elsewhere without the consent of the foreign sovereignty, which may be withheld at will, or granted upon any condition whatsoever (Woodward v. Mutual Reserve Life Ass'n, supra; People v. Fire Ass'n of Phila., 92 N. Y. 311, 44 Am. Rep. 380; Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297), and that it is unlike an individual, who may at will transact any lawful business in any state of the Union, regardless of his residence. It cannot be controverted that this distinction exists. In the case of a nonresident individual, however, a judgment in personam may not be rendered without personal service of process within the state, or a general appearance in the action (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565); and yet, if it be a court of general jurisdiction, the presumption obtains, unless the contrary appears by the judgment roll or is shown dehors the record, that the service was such as to warrant the judgment, even though the facts did not appear (Applegate v. Lexington, supra). There is but little difference in principle between the one case and the other. Both the individual and the corporation may be lawfully in the foreign state, and personal service may be effected upon them therein. The individual may be served if he go into the foreign state at all, unless in the case of attendant upon the court; and the corporation, concededly, if it be transacting business there, or if it be there under an agreement with the sovereignty that citizens and residents thereof may serve process upon it in a particular manner. Pennoyer v. Neff, supra; Mutual Reserve Life v. Phelps, supra.

I am of opinion, therefore, that if the foreign court be a court of general jurisdiction, and it takes cognizance of the case, and decides. that it has acquired jurisdiction, and proceeds to judgment against a foreign corporation, it should, both under the federal Constitution and statutes which command us to give full faith and credit to the judgments of other states, and upon grounds of comity as well, be presumed, in the first instance, that the facts or conditions upon which jurisdiction could be obtained existed, and that service was duly made, unless the contrary appears on the face of the judgment roll. There appears to be a conflict between the rule as declared and applied in some of the federal decisions and that in our state upon the point now under consideration. Where a judgment in personam is rendered against a foreign corporation, the federal courts, as a rule of evidence, will not receive the judgment unless it be supported by the appearance "somewhere in the record-either in the application for the writ, or accompanying its service, or in the pleadings or the findings of the court-that the corporation was engaged in business in the state"; but when it appears that business, "general or special," was transacted by the foreign corporation within the state, proof of service on an agent would be prima facie evidence that the agent represented the company, and presumptively sufficient. St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. See, also, Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569. In Goldey v. Morning

93 N.Y.S.-67

and 127 New York State Reporter

News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517, it seems to have been recognized that the effect of service upon an officer of a foreign corporation found within this state temporarily would, as to actions in the courts of this state, be for our courts to determine. It does not follow that the courts of this state may not, both in recognition of the requirements of the federal Constitution, and upon grounds of comity, give full faith and credit to judgments rendered against a foreign corporation in a court of general jurisdiction of a sister state, where it appears that jurisdiction was acquired in personam in conformity with the laws of that state, even though the corporation was not doing business there. The service of process is for the purpose of giving notice to the defendant, and affording him or it an opportunity of defending the action. It is the settled policy of this state that it is within the province of the Legislature to prescribe what service shall be deemed sufficient, and that service upon a foreign corporation may be made within this state upon a person designated therefor, or upon an officer or agent of the corporation, in certain cases prescribed in the Code of Civil Procedure, even though the corporation may not be doing business within the state, and the officer or agent served was here only temporarily and on private business. Code Civ. Proc. § 432: Hiller v. Burlington & Missouri River R. Co., 70 N. Y. 223; Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137; Tuchband v. Chicago & Alton R. Co., 115 N. Y. 437, 22 N. E. 360; Buell v. B. & O. S. W. R. Co., 39 App. Div. 236, 57 N. Y. Supp. 111. See, also, Persons v. Buffalo City Mills, 29 App. Div. 45, 51 N. Y. Supp. 645; Le Fevre v. Matthews, 39 App. Div. 232, 57 N. Y. Supp. 128. Such a judgment being in personam here, comity as well as the federal Constitution requires that we should give full faith and credit to a judgment of another state rendered on similar service of process. It appears to be the general rule in this state that jurisdiction of courts of general jurisdiction of foreign states will be presumed. even though the jurisdictional facts are not shown in the judgment roll; and judgments against foreign corporations do not appear to be, and, as already stated, I fail to see why they should be, an exception to the rule. Pringle v. Woolworth, supra; Smith v. Central Trust Co., 154 N. Y. 333, 48 N. E. 553; Pacific Pneumatic Gas Co. v. Wheelock, 80 N. Y. 278; Steinhardt v. Baker, 163 N. Y. 410, 57 N. E. 629. Of course, in the case either of a foreign or domestic judgment, where it appears that a statute requires the jurisdictional facts to be evidenced in a particular manner, and this has not been done, the presumption of jurisdiction is rebutted. Billinge v. Pickert, 39 Hun, 505. But it does not appear that these judgment rolls are not in conformity with the requirements of the statutes of North Carolina, and this principle has no application.

In the actions in which the judgments involved in Nos. 12 and 13 were recovered, the foreign court made special findings, which are part of the judgment rolls, finding, among other things, the enactment of the statute requiring foreign insurance companies, as a condition of doing business within the state, to execute to and file with the Commissioner of Insurance a power of attorney for the

service of process, with the stipulation that it should remain in force so long as the company had any liability outstanding within the state, and that the defendant had complied therewith and transacted business thereunder; that the contracts for breach of which the respective actions were brought were made in that state with the respective plaintiffs, who were then and at the time of commencing the actions citizens and residents thereof; and that the summons in each was duly served on the defendant. These cases, therefore, do not require further comment.

The appellant also makes the point that the sheriff's return of service shows that service was made by reading the summons to the Commissioner of Insurance, and "delivering" a copy thereof to him, whereas the statute (section 62, c. 54, p. 175, Laws N. C. 1899) provides that service shall be made by "leaving" the summons in the hands in office of the Commissioner. The cases cited in support of the contention that this does not show good service related to inferior courts, where jurisdiction is not presumed. In the decisions of our own courts, already cited, the presumption of jurisdiction of a court of general jurisdiction extends to the due service of process; and, as this return does not show that the copy was not left with defendant, it may be presumed that it was.

The plaintiff was granted an additional allowance in each of these cases. We think the allowances were properly made.

It therefore follows that the determination in each case should be followed.

PATTERSON, INGRAHAM, and MCLAUGHLIN, JJ., concur. VAN BRUNT, P. J. I dissent in action No. 7, but concur in actions Nos. 12 and 13.

LAMBERT v. MUTUAL RESERVE LIFE INS. CO. (eight cases). (Supreme Court, Appellate Division, First Department. May 20, 1905.) Nos. 1-3, 5-9.

FOREIGN JUDGMENTS-ACTIONS-SERVICE-EVIDENCE.

Where, in an action on foreign judgments against a nonresident insurance company, the judgment roll sufficiently showed that the court had acquired jurisdiction over defendant's person by service on the Insurance Commissioner of the state in which the judgment was rendered and that the defendant had no power to revoke its power of attorney issued to such Insurance Commissioner to receive service of process while it was liable on claims in such state, evidence of an attempted revocation of such power before the service in question was ineffectual.

Appeals from Appellate Term.

Actions by Robert C. Lambert, as administrator of Charles J. Lambert, deceased, against the Mutual Reserve Life Insurance. Company. From a determination of the Appellate Term (90 N. Y. Supp. 539) of the Supreme Court affirming a judgment (87 N. Y. Supp. 438) of the New York City Court in favor of plaintiff in each.