21 N.Y.S. 543 | N.Y. Sup. Ct. | 1892
Upon the 26th oday of August, 1892, an order was ■made at special term appointing a temporary receiver of the assets and property of the defendant w'ithin this state. A motion was subsequently made to vacate this order, upon the sole ground that the court was without jurisdiction to grant it, for the reason that the summons and complaint, together with the original order to show cause,' had not been ■served upon the defendant according to law. The motion to vacate was denied upon the ground (specified in the order of denial) that the ■court had power to make the order of August 26th, and to appoint a -receiver of the property of the defendant, without notice fo -the defendant, and without first obtaining jurisdiction of the person of the • corporation. It was unnecessary for the learned judge to specify in the order appealed from .the ground upon which he denied The motion. It was sufficient that the motion was denied, and for good reasons. We need not consider the question as to whether the particular ground specified in the order was of itself sufficient to justify the denial of the motion; nor need we consider the argument on that head presented by the learned counsel upon this appeal. In saying "this we do not mean to intimate a doubt as to the correctness of the learned judge’s conclusion. It appears conclusively from the papers that the -court had juris- ■ diction of the defendant corporation at the time the order in question was made. That order was not made ex parte, but upon due notice to The defendant. The papers were served upon the managing agent of The defendant in this state, and it appeared that the defendant had .no -officer -within this state upon whom those papers could have been served. It also appeared that the defendant had not made the designation of a ■person upon whom papers in an action might be served, as authorized -by the second subdivision of section 432 of the -Code of Civil Pro-, ■cedure. We think the affidavit of service which was before the court when the order appointing the receiver was made was' itself quite sufficient. It was not necessary for the affiant to state how he knew that The person named was the managing agent of the defendant, any more tban.it would have been, in case of service upon the president, treasurer, or secretary of the corporation, to disclose The affiant’s knowledge ■of the latter’s official position. Jurisdiction was certainly .conferred by an affidavit stating that the service was made upon the managing agent, naming him as such. . But, even if there were a defect of proof on that head, that was matter of evidence, not of fact, and did not go to the question of jurisdiction. We find, however, that the motion to vacate was resisted upon affidavits -clearly furnishing ample evidence of the fact that the .person upon whom the papers were served . was the managing agent of the defendant. The question of jurisdiction did not-depend upon the evidence as to the agency contained in the affidavit of -service, but upon the fact that the person named was in truth the defendant’s managing agent. We also find that the motion to vacate was,
Order accordingly affirmed, with costs.
