Second Department, June, 1921. [Vol. 197 defendant be excluded from a vested, or contingent interest in or lien upon, specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property." (See Laws of 1914, chap. 346.) Section 443 of the Code then provided: § 443. Service without the State. * * * 3. In the cases specified in subdivision five of section four hundred and thirty-eight the summons may be served without an order, upon a defendant without the State in the same manner as if such service were made within the State, except that a copy of the complaint shall be annexed to and served with the summons. "4. Service without the State is complete ten days after proof thereof is filed. "5. When the summons is served personally without the State the affidavit of service must show that the person making it is a resident of the State of New York, or a sheriff, under sheriff, deputy sheriff or constable of the county or other political subdivision in which the service is made, or an officer authorized by the laws of this State to take acknowledgments of deeds to be recorded in this State. "6. A judgment shall be conclusive upon a defendant on whom the summons is personally served without the State, with respect to the property which is the subject of the action, or which is attached therein, to the same extent as if the service upon him were made within the State." (See Laws of 1914, chap. 346.) The plaintiff claims that all of the provisions of this statute were complied with. He says that the action is one of those specified in subdivision 5 of section 438, and as to the defendant Emma M. Partello demanded judgment excluding her from her interest in the mortgaged property, the subject-matter of the action. Secondly, that a copy of the complaint was annexed to the summons, and the summons and complaint were personally served on said Emma M. Partello at Normal, McLean County, Ill., by a deputy sheriff of said county; that his affidavit of service was filed, and that the service upon her became complete ten days after such filing, which App. Div. 377] Second Department, June, 1921. was March 31, 1916; and that after the additional twenty days had expired the usual proceeding for the entry of judgment of foreclosure and sale took place. The record shows that the defendant Emma M. Partello at the time of the service of the summons and complaint was in possession of the premises affected. Upon delivery of the deed to the plaintiff, she entered into possession of the premises, and for a period of nearly five years, last past, she has been in quiet, peaceful and undisturbed possession thereof. No objection has ever been raised by Emma M. Partello, and no attempt has been made by her to regain possession of the premises, and she has apparently acquiesced in the judgment and relinquished possession of the property in favor of the plaintiff. No claim has been made by Emma M. Partello or on her behalf that she was not personally served, or that the service was in any way defective or irregular. She has never appeared or served any pleading in the action or attempted to do so. And the plaintiff, summarizing the situation, claims that the objection of the defendant to the title is without merit. The claim of the plaintiff is that the one essential fact upon which the jurisdiction of the court to render judgment depended, was the personal service of the summons and complaint upon the defendant Emma M. Partello, whereby she had actual notice of the commencement of the action, of the claim that was made against her, and of the judgment demanded. I think the claim of the plaintiff is justified by the facts and also by the force of previous decisions. (See Maples v. Mackey, 89 N. Y. 146; White v. Bogart, 73 id. 256; Stuyvesant v. Weil, 167 id. 421; Lindsley v. Van Cortlandt, 67 Hun, 145; Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402.) Judgment is, therefore, rendered for the plaintiff as requested and prayed for in the submission, with costs. BLACKMAR, P. J., MILLS, RICH and KELLY, JJ., concur. Judgment for plaintiff on agreed statement of facts, with costs. 7 First Department, July, 1921. [Vol. 197 CATHERINE MARTIN, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant. First Department, July 1, 1921. Workmen's Compensation Law - injury arising out of and in course of employment - tracer in defendant's employ injured by negligence of elevator operator, also in defendant's employ, while on her way to street during her luncheon hour for personal purpose remedy under Workmen's Compensation Law and not by action for negligence. The plaintiff, who was employed by the defendant in its tracing department, sustained an injury arising out of and in the course of her employment, within the meaning of the Workmen's Compensation Law, and cannot recover in an action for negligence, where it appears that during her luncheon hour she went down on one of defendant's passenger elevators, from the floor on which she worked, on a personal errand, and was injured by reason of the operator's negligence as she was about to leave the elevator, for the employer not only contracted to furnish her a safe entrance, but a safe exit whenever she had occasion or had the right to leave the premises, whether for further work on behalf of her employer or for her own purposes. PAGE, J., dissents, with opinion. APPEAL by the defendant, Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of October, 1920, upon the verdict of a jury for $55,000, and also from an order entered in said clerk's office on the 1st day of November, 1920, denying defendant's motion to set aside the verdict and for a new trial made upon the minutes. Frank Verner Johnson of counsel [William J. Tully, E. Clyde Sherwood and Harry C. Bates with him on the brief; Benjamin C. Loder, attorney], for the appellant. Moses Feltenstein of counsel [Harold R. Medina with him on the brief; Joseph Jeromer, attorney], for the respondent. SMITH, J.: The action is for negligence. The plaintiff was employed by the defendant in its tracing department on the eleventh App. Div. 382] First Department, July, 1921. floor of its building, No. 1 Madison avenue, New York city. This is a large building occupying the entire block, owned by defendant, and occupied both by the defendant and by tenants. Elevator service is maintained in the building for the use of employees and others, and it was in connection with the use of one of these elevators that the plaintiff was injured. It seems to have been assumed upon the trial that the defendant was included among the employers who were contemplated by the Workmen's Compensation Law, and that it employed more than four people, who were thus engaged in a hazardous employment within the protection of the act, and defendant thus employing more than four people in a hazardous employment, all of the employees are brought within the protection of the act. (Krinsky v. Ward, 193 App. Div. 557; Matter of Europe v. Addison Amusements, 231 N. Y. 105.) The main question argued is as to whether this injury happened while in the defendant's employ and arising out of such employment. The work of the plaintiff was upon the eleventh floor. Upon the twelfth floor there was a luncheon furnished free to all the employees. There was no elevator service between the eleventh and twelfth floors. The employees were given thirty-five minutes to procure their luncheon, either within the building or without, or, for such use as they might make of the time if they did not care to procure luncheon. Upon the day in question the plaintiff went from the eleventh to the twelfth floor, procured her luncheon, came back to the eleventh floor, went to her desk and got her pocketbook and started down the elevator. The exact purpose for which she came down perhaps is not clear. There is some evidence that her purpose was a personal one, in order to get a birthday present for her sister, whose birthday was the succeeding day. This, however, I do not deem to be very material, in view of the construction which I have placed upon the statute in question. While the statute requires that in order to come within the act the injury must arise out of and in the course of the employment, it necessarily covers any act done as incidental to that employment. (See § 10; Id. § 3, subd. 7, as amd. by Laws of 1917, chap. 705.) First Department, July, 1921. [Vol. 197 In this case with the service performed upon the eleventh floor, the defendant was required, incident to the employment, to furnish elevator service which would make a safe entrance and a safe exit to her place of employment. The fact that this elevator was used by other people and by tenants, or the public, does not matter, as long as it is furnished by the defendant, and as long as it is necessary to the performance of the plaintiff's work. The plaintiff was coming down the elevator and by reason of the negligence of the operator of the elevator, as she was about to get out, the elevator started up and caused her injuries, for which she complains. It cannot matter if the plaintiff was coming from the building for an individual or personal purpose; when she leaves the building at night and goes to her home that is for a personal purpose. The defendant is bound to furnish a safe entrance and a safe exit at any time that her service is not required. In fact, if the employment be not deemed to extend over the noon recess, the defendant could require the plaintiff to leave the building. That safe entrance and safe exit which the defendant is required to furnish in addition to this employment is a safe exit at any time for any purpose when the plaintiff's time is not demanded under her contract in the defendant's building. This case is clearly distinguishable from Pierson v. Interborough Rapid Transit Co. (184 App. Div. 678; affd., 227 N. Y. 666), because that was not a necessary exit, but one which Pierson was at liberty to choose or not, as he might elect. It was there held that in his choice of the use of the elevated railroad for a personal purpose he was not continuing in the employment. The same distinction exists in Matter of Kowalek v. New York Consolidated R. R. Co. (229 N. Y. 489). There is no case holding that where by reason of the necessities of the situation the defendant is required to furnish access and exit, that such access and exit are not necessarily incidental to the work performed, and an injury occurring in connection therewith is not an injury which is covered by the Workmen's Compensation Law. The case of Ross v. John Hancock Mutual Life Ins. Co. (222 Mass. 560) is distinguishable because the elevator was not there being used as an exit from the building, but was being used for the purpose of going from one floor to another in the |