John Taplinger & Co. v. Montgomery Ward & Co.

114 Misc. 115 | N.Y. App. Term. | 1921

Lehman, J.

The plaintiff has obtained a judgment by default against the defendant. After the judgment was entered the defendant- appeared specially and moved to vacate and set aside the judgment on the ground that the summons and complaint were never properly served upon the defendant. The original affidavit of service upon which the judgment was granted stated that service was made on the'managing agent of the corporation within this state. Obviously this affidavit is insufficient, because service upon a foreign corporation can be made on its managing agent Avithin this state only where no designation has been made, as provided in section 16 of the General Corporation Law, or if neither the person designated nor an officer specified in subdivision 1 of section 432 of the Code of Civil Procedure can be found with due diligence. After this motion was made the plaintiff filed an additional affidavit, but this affidavit, even if properly received after entry of judgment, is insufficient to cure the defect. It appears undisputed that a designation was made by the defendant, as provided in section 16 of the General Corporation LaAv, and the plaintiff, therefore, could not serve the summons and complaint upon the defendant’s managing agent unless the person so designated could not Avith due diligence be found within this state. The plaintiff made no attempt to find out Avhether such designation had been filed, and did not know the name or address of the person designated, and of course made no effort to find this person. The process server merely took the summons and complaint to the defendant’s office in this state, inquired there for the proper person upon whom to serve the papers in the action, and was informed by defendant’s manager that he was the proper person. Neither the managing agent nor any other person in defendant’s employ had any apparent authority to state that he was the person to accept service of processes, or to give any directions as to the proper person upon whom process was to be served. The defendant was required under the law to file in the office of the secretary of state a designation of the person upon whom process could be served, and no other person could assume to act in place of the person so designated. With due diligence the plaintiff could have found out the name of that person, and there is not a scintilla of evidence to sustain a finding that the plaintiff could not have found him at his office in the defendant’s place of business, or that he would have evaded service.

Order, therefore, reversed, with ten dollars costs, and motion to vacate the service of the summons and the judgment entered thereon is granted, with ten dollars costs.

Guy and Wagner, JJ., concur.

Order reversed, with ten dollars costs, and motion granted, with ten dollars costs.