Scott, J.:
Defendant appeals from an order of the Special Term denying a motion to set aside and declare null and void the service of a summons upon the defendant, appellant.
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One of the plaintiffs is a resident of the State of New York. The defendant is a foreign corporation, organized under the laws of the State of Maine; has never been authorized to do business in this State, and has never done business here, or maintained an office or agent here for the transaction of business, and has not now, nor had when the summons was served, any property within this State. The summons was attempted to be served upon defendant by delivery to its treasurer, a resident of Massachusetts, while he was in transit through this State on his way from England to his home. Was this service valid and did it bring the defendant within the jurisdiction of the courts of this State? This-question is one upon which the decision of the Federal courts and the courts of this State have been in irreconcilable conflict for many years. Tested by the rule laid down in this State in Pope v. Terre Haute Car Mfg. Co. (87 N. Y. 137), and never explicitly overruled or rescinded, the service was good, at least in so far as to confer jurisdiction of the defendant upon the courts of this State. Tested by the rule repeatedly laid down by the Supreme Court of the United States, the service was bad, and conferred-no jurisdiction over the defendant upon any court. (Vide cases cited by Mr. Justice Clarke in Grant v. Cananea Consolidated Copper Co., 117 App. Div. 576.) Of course, we are bound to follow the rule of our own Court of Appeals, unless that rule is violative of the.provisions of the Federal Consti- • tution, or the Court of Appeals has itself rescinded the rule in the Pope case and conformed to the rule laid down by the Supreme Court of the United States. The appellant contends for both of these propositions. We do not so understand the present attitude of the Court of Appeals. Its latest expression upon the subject is contained in Grants. Gananea Consolidated Copper Co. (189 N. Y. 241). In that case, after pointing out that the method of service now complained of is in strict conformity to the requirements of the Code of Civil Procedure (§ 432, subd. 1), the court said : “ But it is contended that the provisions of the Code are violative of the provision of the Constitution of the United States, already referred to. This we cannot admit.” But it is argued that in the Gramd case itself the Court of Appeals has abandoned its former position and adopted that of the Supreme Court of the United States. This argument is based upon the following sentence from the opinion of the court: “ While we Page 369
entertain tlie view that our statute upon the subject furnishes the safer and wiser rule to follow we shall in this case recognize and attempt to follow the rule laid down by the Federal court.” We are unable to find in this expression any indication of an intent to recede from the rule announced in the Pope case, where that rule is applicable. The application of the Federal rule is especially and significantly limited to the particular case then under consideration, and as we understand the sentence above quoted, it means nothing more than that the facts of that case brought it even within the rule adhered to by the Federal courts. Being bound, as we are, to follow the rule of the Court of Appeals as .we understand it, we are compelled to affirm the order appealed from.
The order should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., Miller and Dowling, JJ., concurred.