Amend, J.
The defendant is a corporation and the plaintiff claims service was made upon it by delivering the summons to one William Max. A previous motion to set aside the service upon said Max was denied on November 16, 1906, without prejudice to a renewal. The second application was brought on November 21, 1906, but previously, on November 17, 1906, the decision in the first motion appeared in the Law Journal, and .the order was entered November 17, 1906, and judgment entered on November 19, 1906. The affidavits used by the plaintiff in opposing the first motion were used upon the last motion. The question in the case is whether service on Max was service on the defendant corporation. In his opposing affidavit, the plaintiff avers that, on January 16, 1906, said Max signed a contract with deponent in the following manner: “ Northwestern Eealty Company, per Ezra Max, President.” ' That on May 15, 1906, the said Max signed another contract with deponent, as follows: “Northwestern Eealty Company, per William Max.” The plaintiff further avers that no negotiations as to terms had been had previous to the signing of the contract, and that the terms were agreed upon, and the contract drawn up and signed on the spot, in each instance, by said William Max without consultation with any of the company’s officers, or with any other person.; that, whenever plaintiff wished tc learn anything, or asked for payment, he was referred to William Max; that, when he asked Ezra Max, the president of the company, for a payment on account, said Max told him to wait until William Max came, and that, upon similar requests by other people, all were told to wait for William Max; that said William Max agreed to give him $200 and *530without consulting anybody ordered the stenographer to draw a check for that amount and had Ezra Max sign it as president, and that as to the other payments nobody had anything to do with them other than William Max, except as Ezra Max signed them; that the sign on the office door of the defendant’s company read: “Northwestern Realty Company. E. & W. Max.”; that, in an application for a building permit filed on August 29, 1906, plaintiff stated that William Max was secretary of the defendant company, the owner thereof, and that the name of William Max as secretary was given him over the telephone by Ezra Max; that subsequently, on October 3, 1906, he applied for a permit for the other houses, and he was not informed that there was not a change in the secretaryship of the company; that William Max was the one who had general charge of the defendant’s affairs; that he is familiar with the duties of the foreman which William Max claims to be, and that the duties he performed are much higher than those entrusted to a foreman; that he knew Raldaris as superintendent and that said Raldaris has always acted in recognition of William Max as superior. Schafer, an associate of the plaintiff, makes affidavit that he was present when both contracts alluded to in the plaintiff’s affidavit were signed. He further says that the terms were discussed at each of said meetings as if for the first time; that William Max consulted with nobody as to the signing of the said contracts and that William Max signed them, to all appearances, on his own authority. The affidavits for the plaintiff were verified on the 15 th day of November, 1906. The affidavits on the part of the defendant are all verified on the 20th day of November, 1906, five days after the other affidavits. It is worthy of note that, in the affidavits submitted in opposition by Max Gotthelf and Hayman, none of the allegations in the plaintiff’s affidavits are denied. William Max swears that he was employed as a foreman of the company and is and was neither an officer nor stockholder, nor managing agent of the corporation. Samuel Gotthelf says he is treasurer of the company, and that William Max was neither an officer nor managing agent thereof Morris H. Hayman, attorney for the company, states that *531said Max was not and had not prior to the service of the summons been an officer of the company, nor its managing-agent. These averments are more in the nature of conclusions than statements of fact. “ Under the provisions of the Code of Civil Procedure in regard to the service of summons upon a foreign corporation which authorizes the service by delivery of a copy to ‘ a managing agent ’ of the corporation within the State, it is not necessary that the office of the person to whom the copy is delivered should be precisely described as ‘ managing agent ’ ; but it was intended that any person holding some responsible and representative relation to the company, such as the term managing agent would include, might be served.” Coler v. P. B. Co., 146 N.Y. 281" court="NY" date_filed="1895-05-29" href="https://app.midpage.ai/document/coler-v-pittsburgh-bridge-co-3620684?utm_source=webapp" opinion_id="3620684">146 N. Y. 281. The evidence clearly preponderates in favor of the plaintiffs contention that William Max was at the time service was made upon the defendant the managing agent and justifies the conclusion that his position was within the meaning of section 431, subdivision 3, of the Code and service upon him was, therefore, service upon the defendant.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and judgment reinstated in the court below.
Gildebsleeve, J., concurs.
MacLean, J. (dissenting).
With the learned justice of the City Court I agree that, upon the affidavits submitted, he was constrained to grant the motion. In the present state of the law in the service of process, as well as in other transactions with corporations, persons must make sure that the individuals with whom they assume to deal are actually the officers or functionaries supposed. The argument that it would be hardship to apply the statute of the State, instead of judge-made law to fit the case, is seldom cogent; here the less so, inasmuch as the president of the corporation was easily findable at the company’s office where he had been seen frequently by the plaintiff himself. Adoption of acts *532of William Max, foreman, in matters not commonly committed to a foreman, did not appoint Mm manager or qualify him' to he the recipient of process.
Order reversed, with ten dollars cost and disbursements, and motion denied, with ten dollars costs, and judgment reinstatéd in court below.