Flynn v. The Equitable Life Assurance Society.

was bound by what he did; that it could not complain of answers which it, through its agent, advised the assured to give and wrote in the application.

In the disposition of this case I will assume that there was no collusion between the assured and Dr. Vedder, and that the assured gave to the doctor full and accurate information as to all the questions asked before his answers were written, and yet I reach a conclusion adverse to the plaintiffs.

Dr. Vedder testified that he had never been appointed the agent of the defendant to procure applications for insurance, and that he had never acted as such. He was simply the medical examiner of the defendant, and was never held out by it as an agent for any other purpose. As medical examiner it was simply his duty to ascertain and report to the company the physical condition and state of health of an applicant for insurance, by filling up the blank report and obeying the instructions furnished to him. Reynolds on Life Assurance, 123; Bunyan on Life Assurance, 51; Angell on Life and Fire Insurance, § 283. He had no authority from the defendant to solicit applications for insurance, or to fill up applications, and such authority was not incident to his agency as medical examiner, nor within the apparent scope of such agency. The assured did not apply to him for insurance, and the doctor did not even claim to him that he had any authority except to examine him for insurance. It does not appear that the defendant even knew that the doctor had any thing to do with procuring and writing this application, and hence it in no way ratified his acts. He, therefore, had no more authority to act for the defendant in taking and writing this application than any other friend of the deceased would have had. His medical report, which he, as medical examiner, was required to make, was a matter distinct from the application. That was made upon his responsibility, was signed by him alone, and was in no way part of the policy. But the application was the act of the assured, for which he was responsible, was signed by him and made part of the policy.

There are cases to be found in the books where insurance companies have been held bound by misstatements contained in applications made or written by or under the advice of their agents authorized to solicit insurance and take applications. Plumb v. Cattaraugus County Mut. Ins. Co., 18 N. Y. 392; Rowley v. Empire Ins. Co., 36 id. 550; American Life Ins. Co. v. Mahone, 21 Wall. VOL. XXIII.-18

Shaft v. The Phoenix Mutual Life Insurance Company.

152; Miner v. Phænix Ins. Co., 9 Am. Rep. 235; Baker v. Home Life Ins. Co., 64 N. Y. 648. But without now stopping to inquire what the true rule in such cases should be, this is not like any of the cases cited. Dr. Vedder was not the agent of the company in reference to the application, and hence the company was not bound by any thing he did in reference thereto.

It follows from these views that the judgment must be reversed and new trial granted, costs to abide event.

All concur, except CHURCH, C. J., and MILLER, J., dissenting. Judgment reversed.

SHAFT V. THE PHENIX MUTUAL LIFE INSURANCE COMPANY.

(67 N. Y. 544.)

Removal of cause to United States Circuit Court- When State court loses jurisdiction - Petition of corporation - Who may make - Verification of petition.

A State court loses jurisdiction of a cause, upon proceedings being taken to remove it into the United States Circuit Court, and the question of such loss of jurisdiction can be raised by answer.

An action was commenced against a non-resident insurance company, by the service of the summons upon the person appointed by such company, under and in pursuance of the statute, as its agent and attorney within the State, upon whom all process against it might be served, and who was also its general managing agent, in the State. Such agent and attorney, upon entering defendant's appearance, filed a petition for a removal of the cause to the Circuit Court, under U. S. R. S., § 639, which was signed by him as such attorney, and verified by his affidavit which also stated that he was defendant's general managing agent. Held, (1) that the petition and the fil-. ing of it were the acts of the defendant; (2) semble, that it was not essential that the petition be verified; but (3) that if a verification was necessary, the affidavit was sufficient, and made by the proper person. (See note, p. 143.)

A

CTION upon a policy of insurance, issued by the defendant, upon the life of W. E. Shaft, plaintiff's intestate.

The defendant was a corporation, chartered under the laws of Connecticut, and the action was commenced by the service of the summons, when one Bull, the person designated and appointed by the company, pursuant to the requirements of the statute of the State of

Shaft v. The Phoenix Mutual Life Insurance Company.

New York, as its agent and attorney within the State, upon whom all process against it might be served, and who was also its general managing agent in the State. The said Bull entered an appearance for the defendant, and at the same time filed a petition for the removal of the cause into the Circuit Court of the United States, under the provisions of the United States Rev. Stats., § 639, and gave the required security. The petition was signed by said Bull, as such attorney, and was verified by his affidavit, wherein it was also set forth that he was the general and managing agent of the defendants, in the State. The motion to remove was denied by the Special Term, on the ground that it did not appear that said Bull was authorized to make the application, and this order was affirmed by the General Term on appeal.

The defendant in its answer set forth all the proceedings had for the removal of the cause into the Circuit Court, and claimed that the Supreme Court had lost jurisdiction, and that the cause was removed into the Circuit Court.

It appeared at the trial that all the provisions of the U. S. Rev. Stats. for the removal of causes in such cases.had been complied with. The court directed a verdict for the plaintiff, and exceptions were ordered to be heard in the first instance, at General Term, where a new trial was denied and judgment directed on the verdict.

Samuel Hand, for appellant. The Supreme Court lost jurisdiction by defendant's proceedings for removal to the United States Circuit Court. Ayers v. West. R. R. Co., 45 N. Y. 260; Stevens v. Ins. Co., 41 id. 449. The petition and proceedings for removal were regular and in conformity with the statute. U. S. Stat. at Large, 79, § 12; Tomlin's Law Dict., "Petition." The petition was properly verified. Bell v. Lycoming Ins. Co., 3 Hun, 409; Vandevoort v. Palmer, 4 Duer, 677; Brewster v. Mich. Cent. R. R. Co., 5 Hun, 183; Crawford v. Collins, 45 Barb. 269. The agent had authority to verify the petition. Bell v. Ins. Co., 3 Hun, 409; Vandevoort v. Palmer, 4 Duer, 677; Glaubensklee v. Ham and Am. Packet Co., 9 Abb. 144; Code, § 134; Laws 1855, chap. 279.

A. M. Beardsley, for respondent. The motion to remove the cause to the United States Circuit Court was properly denied. Livingstone v. Gibbons, 4 Johns. Ch. 94; Redmond v. Russell, 12 Johns. 153; Cooley v. Lawrence, 12 How. Pr. 176; Chatham Nat. Bk. v. Mer. Bk., 4 T. & C. 200. The agent who made and verified the

Shaft v. The Phoenix Mutual Life Insurance Company.

petition had no authority to do so. 1 Wait's Pr. 270; Code, § 157; Dodge v. N. W. Packet Co., 13 Minn. 455; Fish v. Un. Pac. R. R. Co., 10 Abb. (N. S.) 475.

FOLGER, J. A defendant may raise, by answer, the question of a loss of jurisdiction by a State court, by reason of proceedings taken under the laws of the United States, for a removal of the cause to the Federal courts. Ayers v. West. R. R. Co., 45 N. Y. 260. If the proceedings are regular, and strictly in accordance with the acts of Congress, the State court is ipso facto ousted of jurisdiction; and whether the order of removal is granted or denied by the State court, all further proceedings therein are coram non judice and void. Stevens v. Phoenix Ins. Co., 41 N. Y. 149. It follows that under an answer alleging the facts, the defendant may make proof of them at the trial, and ask for the fitting judgment.

The defendant in the case at hand is a citizen of the State of Connecticut within the meaning of the acts of Congress (id.); the plaintiff is a citizen of this State; the amount in dispute exceeds the value of $500, exclusive of costs; the proceedings taken by the defendant were strictly within the laws of Congress (Rev. Stat. U. S. p. 113, § 639), if the paper filed was a petition within the meaning of that law, and if it is to be held as having been filed by the defendant and properly verified.

I think that there is no doubt that it and the filing of it were the acts of the defendant. It appears that the process by which this action was commenced had been served upon the defendant as prescribed by the statute of this State, so as to bring it into court and to give jurisdiction in the first instance. Gibbs v. Queen Ins. Co., 63 N. Y. 114; S. C., 20 Am. Rep. 513. At the time of filing the paper the defendant also entered its appearance by attorneys in the State court. They, as an official act for their client, filed and presented this paper, and moved upon it in behalf of their client for a removal of the cause. By that action the defendant was bound. It could not disavow or repudiate it to the harm or inconvenience of the plaintiff. Then it was the petition of the defendant, and the filing of it, the act of the defendant.

Next: Whether the petition should have been verified to meet the requirement of the act of Congress? It is that act which gives the right of removal, and the requirements of it cannot be added to or varied by the laws of a State, or by the rules and practice of

Shaft v. The Phoenix Mutual Life Insurance Company.

a State court. Now, the act above cited does not in terms require a verification of the petition. Its language is, that the suit may be removed on the petition of the defendant. A petition, in common phrase, is a request in writing, and in legal language describes an application to a court in writing, in contradistinction to a motion, which may be made viva voce. Bergen v. Jones, 4 Metc. 371; 2 Daniell's Ch. Pr. 1587, 1683. There is nothing in the thing itself, nor in the naming of it by its name alone in a statute, which demands that it should be verified. Doubtless the general practice is to verify a petition (2 Bouvier's Law Dic., in voce, p. 329; Conkling's Treatise, 300), though often this is required by the standing rules of courts, rather than by the force of the term itself, or the exigency of the statute. 1 Barb. Ch. Pr. 580 (old ed.). It is not clear that it was the intention of Congress by the act referred to to require that the petition should be verified. For in the same code of laws (§ 639, sub. 3) Congress has provided for the removal of a cause under a different state of facts upon the filing of a petition, and added a requisition in terms that there shall be made and filed an affidavit. So, in section 640 of the same Code, declaring another cause of removal, it demands that the petition be verifieù. So it is by sections 641, 643. The imposition of different requirements is to be inferred from the use of different language.

If it was needful to put our decision upon this point, we should hesitate to say that it was a requisition of the Federal law that the petition should be verified. And in this view we are strengthened by a decision of a United States District Court, Sweeney v. Coffin, 1 Dillon, 73, where it is expressly held that the petition in such a case need not be verified. In Ogden v. Baker, 1 Green (N. J.), 75, the court, on the opening of the motion, called for an affidavit, and put off the hearing until one was produced. But in that case, and in the cases there cited, it was not held that an affidavit was an essential prerequisite, the lack of which would, per se, defeat the application. The case of Dodge v. N. W. Packet Co., 13 Minn. 458, cannot be taken as a decision upon this point. The case was decided by a bench of three. One dissented from the judgment. in toto. One concurred in the judgment, solely on the ground that a corporation was not capable of availing itself of the right given by the act, in which he was in conflict with 41 N. Y., supra. The third put the decision on the ground last named, and