6 How. Pr. 308 | N.Y. Sup. Ct. | 1851
It is very clear that the service of the summons upon Hotchkiss was not a sufficient commencement of the suit. He was not such a “ managing agent” as the legislature intended, when it authorized the summons to be served on a person holding that relation to the corporation. To authorize such a service, the agent must have the same general supervision and control of the general interests of the corporation that are usually associated with the office of cashier or secretary. It was never intended that a rail road corporation might be sued by serving process upon a baggage master. But this irregularity, or want of legal service, has been cured by the general notice of appearance served by the defendants. They thereby admitted themselves to be “ regularly in court” (Dix agt. Palmer, 5 How. Pr. R. 233).
But the defendants insist that the plaintiff could not regularly perfect his judgment without application to the court. I think
In relation to actions against common carriers, T concur in the views expressed by Mr. Justice Johnson, in Clor vs. Mallory (1 Code R. 126). Though a contract, express or implied, may be involved in the action, it is really founded upon the negligence or misfeasance of the carrier. It was so regarded under the former practice. When interest might be collected only upon a judgment recovered in an action upon contract, it was not allowable to collect it upon a judgment against a common carrier, even though the declaration had been assumpsit in form: It was so held, upon the ground that whatever the form of the action, it
Although an action against a common carrier did, at common law, possess the amphibious character to which I have referred, being made either an action ex contractu, or ex delicto, at the option of the pleader, I am unwilling to admit that it has brought that feature with it into the new system. I think it bears more resemblance to the family of torts than to contracts, and that it ought not to be allowed any of the exclusive privileges that pertain to the latter. I shall hold, therefore, that the plaintiff was irregular in perfecting his judgment, without application to the court. This decision will render it necessary for the plaintiff to amend his summons so as to make it conform to the second subdivision of the 129th section, instead of the first. This he may be permitted to do, within twenty days; and he must also, within the same time, serve upon the defendants’ attorney a copy of his complaint. The defendants are to have the usual time to answer or demur after the service of the complaint. Neither party is to have costs upon this motion.
Note.—Mitchell agt. Westervelt, reported ante page 265, was affirmed, on appeal at the last January general term at Ballston—Willabd, Hand, Cady and Allen, Justices.