Argument for Plaintiff in Error.

197 U.S.

upon an officer or agent who can fairly be said to be its representative agent within the State.

Both conditions must be shown. St Clair v. Cox, 106 U. S. 350; Conn. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602.

The corporation in this case was not doing business in New York. Issuing a policy is not doing business. Allgeyer v. Louisiana, 165 U. S. 578. A citizen within a State may make a contract without the State. United States v. Am. Bell Telephone Co., 29 Fed. Rep. 17; Marine Ins. Co. v. Railway Co., 41 Fed. Rep. 643; Sullivan v. Sheehan, 89 Fed. Rep. 247. For New York decisions as to what is doing business within the State see Hyde v. Goodnow, 3 Comstock, 266; Huntley v. Merrill, 32 Barbour, 626; Cummer Lumber Co. v. Insurance Co., 67 App. Div. N. Y. 151; S. C., 173 N. Y. 633. And see also Seamans v. Knapp Stout Co., 89 Wisconsin, 171; Insurance Company v. Huron &c. Co., 31 Michigan, 346; New Orleans v. Rhenish Lloyds, 31 La. Ann. 781; State v. Williams, 46 La. Ann. 922; People v. Gilbert, 44 Hun, 522; French v. People, 6 Col. App. 311; Carpenter v. Westinghouse Air Brake Co., 32 Fed. Rep. 434; Conley v. Mathieson Alkali Co., 190 U. S. 406.

Even if doing business in New York there was no proper service. N. Y. Code Civil Pro. §§ 432, 1780. There was no designated agent of the company in New York. The cause of action did not arise in New York, and the resident director upon whom service was made had no duties and performed no acts for the corporation. Pope v. Terre Haute Car Co., 87 N. Y. 137; Schmidlaff v. La Confiance Ins. Co., 71 Georgia, 246; Clark & Marshall on Corp. § 690; Goldey v. Morning News Co., 156 U. S. 518; Conley v. Mathieson Alkali Co., 190 U. S. 406.

Service upon a person not the representative of the company in the State is not due process of law, and is so "contrary to natural justice and to the principles of international law" that a Federal court is not bound either to take or to recognize jurisdiction of such a suit against the corporation; and further, that even if the court could hold that a corporation could

197 U.S.

Argument for Defendant in Error.

waive in advance its right to due service of the writ in a suit against it, such waiver ought never to be implied. St. Clair v. Cox, 106 U. S. 350; Barrow S. S. Co. v. Kane, 170 U. S. 100. For limitations in this respect upon the power of the.States see Cable v. U. S. Life Ins. Co., 191 U. S. 288; Barron v. Burnside, 121 U. S. 186; Frawley v. Casualty Co., 124 Fed. Rep. 259.

Mr. Heman W. Morris for defendant in error:

The cause of action arose in New York. The money was to be paid in New York where the creditor resided. Sanderson v. Bower, 14 East. Rep. 517; Hale v. Patton, 60 N. Y. 233; Dockham v. Smith, 113 Massachusetts, 330; Wood on Fire Ins., 2d ed., 322; Lafayette Ins. Co. v. French, 18 How. 404; Paul v. Virginia, 75 U. S. 168; Childs v. Harris Mfg. Co., 104 N. Y. 477; Ithaca Fire Dept. v. Beecher, 99 N. Y. 429; Greiser v. Mass. Ben. Assn., 39 N. Y. St. R. 1; Fidelity &c. Assn. v. Fieklin, 21 Atl. Rep. 680; Burckle v. Eckart, 3 N. Y. 132.

As to whether service of process issued by a state court will be deemed sufficient under the laws of that State, the decisions of the highest courts of the State on that point will be regarded as controlling upon the Federal courts. Ex parte Schollenberger, 96 U. S. 369; N. W. Mut. Ins. Co. v. Woodworth, 111 U. S. 146; Amy v. Watertown, 130 U. S. 301.

The plaintiff in error was doing business in the State of New York at the time the cause of action accrued, and also at the time the action was commenced. Section 1780, Code Civ. Pro.; Conn. Mut. Ins. Co. v. Spratley, 172 U. S. 602; Railroad Co. v. Koontz, 104 U. S. 10. As to what are the duties of an appraiser see Mayor v. Hamilton Ins. Co., 39 N. Y. 45. To enable a foreign corporation to carry on business it is not necessary to have local agents. B. & L. Association v. Denson, 189 U. S. 408; New Haven &c. Co. v. Downington Mfg. Co., 130 Fed. Rep. 605; Firemen's Ins. Co. Case, 155 Illinois, 204; Barrow S. S. Co. v. Kane, 170 U. S. 100.

The essential conditions having been shown to exist, the state court obtained jurisdiction of the plaintiff in error by

service of process on one of its directors within the State. St. Clair v. Cox, 106 U. S. 353; Code Civ. Pro. N. Y. §§ 431, 432; Hiller v. Railroad Co., 70 N. Y. 223; Childs v. Harris Mfg. Co., 104 N. Y. 477; Insurance Co. v. Woodworth, 111 U. S. 146; Amy v. Watertown, 130 U. S. 301.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

Upon the facts thus certified the Circuit Court of Appeals asks the question: "Had the Circuit Court jurisdiction of the plaintiff in error?"

In addition to the facts contained in the foregoing certificate the counsel for the respective parties stipulated upon the argument in this case before this court that a copy of one of the policies on which suit was brought in this case was correctly set out in the printed record in the Circuit Court of Appeals, and that this court might consider and decide the case with the same effect as if in the statement of facts accompanying the question certified by the Circuit Court of Appeals that court had found and certified the additional fact that the record in the Circuit Court of Appeals contained a true copy of one of the policies, and that the others sued upon were in the same form and language as the one set out in that record.

The policies in suit were issued upon a two-story frame sawmill building, and additions, and also upon engines and boilers and other machinery placed in that building, situated on Monroe avenue in the city of Rochester, State of New York. The policies provide that the company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and that such loss or damage is to be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; the assessment or estimate is to be made by the in

sured and the company; if they differ as to the amount of loss, the same is to be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, and the two so chosen are to select a competent and disinterested umpire; the appraisers together are to estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, they are to submit their differences to the umpire; and the award in writing of any two shall determine the amount of the loss. After the amount of the loss or damage has been thus determined, the sum for which the company is liable is payable in sixty days. It is optional with the company to repair, rebuild or replace the property lost or damaged, with other of like kind and quality, within a reasonable time as provided for in the policy.

In order that a Federal court may obtain jurisdiction over a foreign corporation the corporation must, among other things, be doing business within the State. St. Clair v. Cox, 106 U. S. 350; Goldey v. Morning News, 156 U. S. 518; Barrow Steamship Company v. Kane, 170 U. S. 100; Connecticut Mutual Life Insurance Company v. Spratley, 172 U. S. 602.

To obtain jurisdiction of a foreign corporation under the Code of New York, personal service of the summons upon and a delivery to the defendant must be made in the manner designated by section 432 of the Code of Civil Procedure of that State. Subdivision (1) of that section provides for the service of the summons on and its delivery to the president, treasurer or secretary; subdivision (2) provides for like service upon and delivery to a person designated for the purpose by the corporation. The service was made in this case under subdivision (3) of that section, which reads as follows:

3. "If such a designation is not in force, or if neither the person designated nor an officer specified in subdivision first of this section can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the State."

It does not appear that the company had any property within the State, and therefore in order to come within subdivision (3) of the section the cause of action must have arisen therein and the summons must have been served within the State upon one of the officers named in that subdivision, viz., the cashier, a director or a managing agent of the corporation.

(1) Was the company doing business in New York State? Nearly one-third of the amount of its total fire risks was in that State when these policies were issued and when the loss occurred. If it be conceded that the contract was made in Philadelphia, it does not follow that all its business was therefore done in the State of Pennsylvania. The contract was an insurance policy issued upon real estate and machinery in a building situated in the city of Rochester, in New York. The contract was to pay the amount of loss, which might be sustained by fire, as specified in the policy. The policy provides for the manner of determining the amount of this loss, either by agreement between the company and the owner, or, in case of disagreement, then by the appraisers as already stated. The provisions of the contract clearly contemplate the presence of an agent of the company at the place of the loss after it has occurred, for the purpose of determining its extent and adjusting, if possible, the amount payable by the company to the owner. If no such adjustment can be made the policy provides in terms for the appointment of appraisers, one by the company and one by the owner, and that they disagreeing, an umpire shall be appointed, and the agreement of any two shall be binding. After that, the loss is payable to the owner by the company within sixty days. As the policy insures against loss, it of course contemplates that such loss may occur; and it also contemplates that the company shall send to the place where the loss occurred, that is, to New York, its agent, for the purpose stated. When, under the terms of the contract, the company sends its agent into the State where the property was insured and where the loss