A previous judgment in this action in favor of the defendant New York Life Insurance Company rendered at Special Term of the Supreme Court dismissing the complaint upon the merits, was reversed upon appeal to this court. (192 App. Div. 563.)
It is unnecessary to state the facts which are sufficiently set forth for the purpose of this appeal in the opinion on the former appeal. We then held, in ‘reliance upon the case of Morgan v. Mutual Benefit Life Ins. Co. (119 App. Div. 645; affd., 189 N. Y. 447), that this court acquired jurisdiction over the defendant Sarah Schoenholz by publication of the summons, although she did not appear. Since that opinion was pronounced, the Court of Appeals has handed down a decision in the case of Hanna v. Stedman (230 N. Y. 326), reversing 185 Appellate Division, 491, holding that service of the summons by publication upon a non-resident defendant does not confer jurisdiction over such defendant in an action brought for the purpose of determining conflicting claims to *93moneys payable under membership certificates issued by an unincorporated fraternal beneficiary association under which it became bound upon the death of the member to pay the sum named in the certificate to the person designated as beneficiary under the rules and regulations of the association. The court held that- such an action was not one in rem. The question in that case arose in an action of interpleader brought by the fraternal association for the purpose of determining the rights of various claimants to the moneys payable thereunder. In that action it appeared that one Ehrman was the holder of two certificates in each of which he named his wife as beneficiary. She predeceased her husband, who failed thereafter to make any other designation. Upon his death conflicting claims were presented to the moneys payable under the certificates by the representatives of the respective estates of Ehrman and his wife, and by other persons, including a son, all of whom excepting the son were non-residents of the State of New York. Service upon the representatives of Mrs. Ehrman’s estate was made by publication without the State, but the parties so attempted to be served never appeared in the action. Judgment was finally rendered in favor of the son, who directed the moneys payable under the certificates to be paid to the representatives of Mr. Ehrman’s estate, which was accordingly done.
In the course of its opinion the court stated: ie While perhaps it would be difficult to describe all the superficial features which might be possessed by different actions and proceedings in rem and quasi in rem, it seems perfectly obvious that the action which we have described did not have any of the substantial and indispensable characteristics of such an action as they have been defined again and again. An action or proceeding in rem has for its subject specific property which is within the jurisdiction and control of the court to which application for relief is made. The action proceeds against such specific property and its object is to have the court define the. rights therein of various and conflicting claimants. Jurisdictional control of the property affords the basis for service beyond its jurisdiction upon those who may be interested in its disposition. The result of such an action is a judgment which operates upon the property and which has no element of *94personal claim or personal liability. There is no authority so far as we are aware holding that an action of interpleader is one in rem, but exactly the opposite view has been entertained. (N. Y. Life Ins. Co. v. Dunlevy, 241 U. S. 518, 521, 522.) A mere inspection of section 438 of the Code seems to make it so plain that the case was not one permitting service by publication under the provisions of that section on the ground that the action related to specific personal property, that we deem it unnecessary to discuss the proposition at length. It, however, seems to be thought and argued that even though it should be determined now that the action pending in the New York court was not one in rem which permitted jurisdiction of a non-resident party to be secured by service by publication, still the decision of that court that it was such an action was a binding adjudication which could not be escaped by the Maryland court. This of course is not so as to a fact necessary to confer jurisdiction. A court even of general powers cannot acquire jurisdiction merely by asserting it or determining that it exists. It cannot acquire jurisdiction of the person by asserting and finding his residence within the State when the undisputed facts conclusively show him to be a non-resident. And it cannot for the purpose of acquiring jurisdiction of a non-resident through service of the summons by publication assert and determine that the cause of action before it is of a character which permits jurisdiction by such service when the undisputed facts show conclusively that it is not such an one. The. nature of the action in such a case is one of the jurisdictional facts and the court cannot determine in its favor the existence of jurisdiction when there is nothing to support such view. (O’Donoghue v. Boies, 159 N. Y. 87, 97-99; Risley v. Phenix Bank of N. Y., 83 N. Y. 318, 337; Pennoyer v. Neff, 95 U. S. 714, 721; Thompson v. Whitman, 18 Wall. 457, 463, 469; National Exch. Bank of Tiffin v. Wiley, 195 U. S. 257; Haddock v. Haddock, 201 U. S. 562; Reynolds v. Stockton, 140 U. S. 254, 264, 265.)”
As already observed this court in deciding the former appeal in this case relied upon the case of Morgan v. Mutual Benefit Life Ins. Co. (119 App. Div. 645; affd., 189 N. Y. 447) and held that that action was similar in principle to this. In the light of the opinion in the Hanna case, how*95ever, it seems clear that the Morgan Case (supra) was not applicable to the facts in this case, inasmuch as in that case the action was brought for the purpose of impressing a lien upon the policy for the amount of premiums thereon, in order that plaintiff, as the actual assignee of the policy of insurance, might be reimbursed to the extent of the amount of money paid to keep the policy alive. In that case the policy was assigned by the insured as well as by the wife, who was the beneficiary therein named, so that title to the policy as such was firmly established in plaintiff. In the instant case there is an agreement to assign by the insured only, and although the plaintiff alleges that she paid the premiums after her marriage until the death of her husband, the action was not brought to recover the premiums paid upon the policy therefor, but for the recovery of the entire amount of the policy. Under these circumstances it seems to us that the facts in the instant case do not differ in principle from those appearing in the Hanna Case (supra).
It, therefore, follows that the judgment appealed from must be reversed upon the ground that the court never acquired jurisdiction over the defendant Schoenholz.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., and Dowling, J., .concur; Laughlin and Merrell, JJ., dissent.