84 N.Y.S. 308 | N.Y. App. Div. | 1903
Lead Opinion
The defendant is a corporation organized under the laws of the State of Pennsylvania,' and the plaintiff brought this action against it to recover damages for an alleged libel contained in a newspaper published by it in the city of Pittsburg, Penn. Service of the summons was attempted to be made in accordance with the provisions of section 432 of the Code of Civil Procedure relating to service upon a cashier, director or a managing agent of a foreign corporation within the State. The summons was delivered to one Eiker, who was in the employment of the defendant in the city of. New York, and whose business it was to secure advertising for newspapers and who swears that his relation to that corporation was that of an employee at a weekly salary, to solicit advertisements for publication in the defendant’s newspaper. The defendant had not designated any one to receive service of process, and the plaintiff was unable to find the president, treasurer or secretary of the defendant, or other officer performing corresponding duties in this State. The defendant specially appeared and moved to set aside the service, the ground of the motion being, as would" appear' from the papers, that Eiker was not a cashier, or director or managing agent of the corporation within the State. The court below denied the motion,' upon the supposed binding authority of Palmer v. Chicago Evening Post Co. (85 Hun, 403).
The service of the summons should also have been vacated because such service can only be made upon a managing agent of a foreign corporation within this State where “ the corporation has property within the State, or the cause of action arose therein; ” neither of which facts appears upon the face of the papers in this case.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to set aside the service of the summons granted, with ten dollars costs.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred.
Concurrence Opinion
I concur in the result of Mr. Justice Patterson’s opinion upon the ground that as it appears that the cause of action did not arise within this State, and that there is no property of the defendant within this State, the service of the summons and complaint upon the managing agent of a foreign corporation is not authorized by subdivision 3 of section 432 of the Code of Civil Procedure. The service of a summons upon a managing agent of a foreign corporation within the State is only authorized where “ the corporation has
Order reversed, with ten dollars costs and disbursements, and motion to set aside service of summons granted, with ten dollars costs.