Opinion
July 11, 1951.
Present — Taylor, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order reversed on the law, with $10 costs and disbursements and motion granted, with $10 costs. Memorandum: The learned Special Term, in our opinion, erred in construing the language of section 52-a Veh. Traf. of the Vehicle and Traffic Law to permit substituted service provided under section 52 of said Vehicle and Traffic Law upon the administratrix of a deceased resident motorist of the State of New York who was killed in a motor vehicle accident while operating his automobile upon the highways of this State. Following her appointment, the administratrix departed from the State and has remained absent therefrom for thirty days continuously. The defendant's intestate having died within the State as the result of a motor vehicle accident, section 52-a Veh. Traf. of the Vehicle and Traffic Law has no application. Moreover, we find no provision in either section 52 or section 52-a Veh. Traf. of the Vehicle and Traffic Law which authorizes service of process through the agency of the Secretary of State upon the personal representative of a deceased resident motorist who died within the State where the personal representative has departed the State subsequent to her appointment and has remained absent therefrom for thirty days continuously. All concur. (Appeal from an order denying defendant's motion to dismiss plaintiff's complaint for lack of jurisdiction, in an automobile negligence action.)