(dissenting). I dissent. If this action cannot be prosecuted in the Municipal Court it cannot be maintained in the City Court (American Historical Society, Inc., v. Glenn, 248 N. Y. 445), and all such claims under the Motor Vehicle Law must be asserted, in this part of the State at least, in the Supreme Court, although the City Court in the city of Albany where is located the Albany office of the Secretary of State would not be barred from exercising jurisdiction.
Bearing in mind that injuries to persons or property caused by the negligence of non-residents while driving their automobiles in this State (in this particular instance within the city of New York) may not be of such a serious character as to warrant suit in the' Supreme Court and the expense incident to litigation in that court, it seems to me that unless the Legislature has expressly or by neces*821sary implication limited the choice of a forum to our residents we should not limit the operation of the act to our court of highest original jurisdiction. In the absence of a clear expression of intention in the statute to the contrary, residents of the city of New York should not be deprived of the advantage of a tribunal which ought to be less crowded with cases than the Supreme Court and which ought to afford prompter justice to litigants whose claims are of comparatively small amounts, although of course such smaller claims frequently constitute a matter of very vital concern to citizens entitled as of right to justice according to law without unnecessary delay. (See report of Constitutional Convention, cited in American Historical Society, Inc., v. Glenn, supra, at p. 450.)
In the prevailing opinion it is stated that the question presented for decision is whether the Municipal Court has jurisdiction of an action arising under section 52 of the Vehicle and Traffic Law “ where the initial service is required to be and is made upon the secretary of state at Albany.” The word “Albany ” does not appear in the statute (Laws of 1929, chap. 54), which reads: “ The operation by a nonresident of a motor vehicle or motor cycle on a public highway in this state shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such a public highway; and such operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state. Service of such summons shall be made by leaving a copy thereof, with a fee of two dollars, with the secretary of state, or in Ms office, and such service shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant’s return receipt, the plaintiff’s affidavit of compliance herewith, and a copy of the summons and complaint are filed with the clerk of the court in which the action is pending. The court in which the action is pending may order such extensions as may be necessary to afford the defendant reasonable opportunity to defend the action.”
The statute under consideration provides for service of the summons by leaving it with the Secretary of State, or leaving it at his office, with a fee of two dollars. This is quite different from section 217 of the General Corporation Law of 1929, cited in the prevailing opinion, which requires that service on the Secretary *822of State pursuant to that statute be made “ by personally delivering to and leaving with him or a deputy secretary of state duplicate copies of such process at the office of the department of state in the city of Albany.” The Secretary of State is not a defendant here. He is a State-wide officer and his office a State-wide office, and it seems to me that if the summons in an action brought under the Vehicle and Traffic Law be left with him in Albany, or in his office there, that would not constitute service of process of the court outside of the city of New York. Doubtless under the Vehicle and Traffic Law the summons may be left with the Secretary of State in Albany, or in his office there, by mailing the summons in New York city to the Albany office, the official acknowledgment of the receipt of the paper and of the fee, apart from the mere mailing, conclusively showing a compliance -with the statute.
Further, although we may not take judicial notice of the fact that the Secretary of State is a resident of the city of New York, and, therefore, the summons may be conveniently left with him in New York City, I think we may take judicial notice that there is an office of the Secretary of State in the city of New York, and the summons in such case may be left at the New York city office as well as at the Albany office. Indeed as the record was presented to the justice of the Municipal Court of the City of New York it might well be assumed that the summons was left at the New York city office, and it was not until after the record was filed in this court that a stipulation was procured from which it appears that the summons was mailed to the office at Albany.
In the McKeever Case (122 App. Div. 465), referred to in the prevailing opinion, the statute (Ins. Law, § 30) required “ service upon such attorney ” (that is, the Superintendent of Insurance as attorney for foreign insurance companies transacting business in this State), and the Appellate Division of the Second Department expressed the opinion that service of the summons of the Municipal Court on the Superintendent at Albany should be deemed service within the city of New York, for the reason that “ section 30 of the Insurance Law was intended to provide a way of obtaining personal service on a foreign insurance corporation, and such service should be deemed to be made within the territorial jurisdiction of the court issuing the process.”
It is said in the prevailing opinion that “ there is no more reason why the Municipal Court of the city of New York should have power to reach by its process a resident of Newark, N. J., in this case, than had the City Court of the city of New York a resident of Albany in American Historical Society v. Glenn (supra).” In that case the Legislature had attempted to give the City Court of *823the city of New York jurisdiction over any resident of the State by service of the process of that court in any part of the State, and our highest court, holding such legislation to be unconstitutional, said (248 N. Y. 453, 454): “ The People of the State of New York have not so disastrously oppressed themselves as to sanction such ‘ attempts by their Legislature (as are here asserted) to extend an unwarrantable jurisdiction ’ over the inhabitants of the entire State, so long as they keep outside the territorial jurisdiction of the City Court.” The constitutionality of the legislation, of which the statute under consideration is a type, subjecting nonresidents to the jurisdiction of the courts of a State whose citizens or residents have been damaged by motor vehicles negligently operated by such non-residents, has been passed upon and approved by the Supreme Court of the "United States (Hess v. Pawloski, 274 U. S. 352); and there can be no more oppression entailed as against the non-resident defendant here by suing him in the Municipal Court of the city of New York than by bringing action in the Supreme Court in New York county or any other county of the State. In fact the choice of the lower court as the forum would seem to favor the defendant. In this connection it may be added that the jurisdictional limitation of the County Courts that the defendant must be a resident of the county, is not applicable to the Municipal Court, for in the latter court a foreign corporation or a non-resident individual defendant may be sued. (Worthington v. London G. & A. Co., 164 N. Y. 81; Routenberg v. Schweitzer, 165 id. 175.)
As the statutory provision invoked by plaintiff was not intended to exclude the Municipal Court from the adjudication of the grievances for which the statute was designed to award a remedy, and said court may, in my opinion, exercise jurisdiction in such cases without transgressing constitutional limitations, the judgment and orders appealed from should be affirmed.