187 A.D. 175 | N.Y. App. Div. | 1919
Lead Opinion
I am of opinion that George T. Green, upon whom the summons and complaint were served, was not a managing agent of the defendant within the provisions of section 432, subdivision 3, of the Code of Civil Procedure, quoted in the opinion of Mr. Justice Merrell.
The libel was published and the cause of action arose in Panama where the defendant was incorporated and conducted the business of publishing two newspapers, one in the English language and one in Spanish. It did no business here excepting that through one Carlos K. Duque. It solicited and took advertising here to be published in its newspapers in Panama and paid him commissions therefor which were deducted from the payments made. Duque also conducted a commission business of moderate proportions and he owned and managed the University Garage here and for those purposes he maintained an office at 17 Battery place in the city of New York,
It is stated in the affidavit of the process server that she knew Green to be the managing agent of the defendant and it is stated in an affidavit made by the wife of the plaintiff, who obtained an interview with Green with a view to obtaining information for the purpose of serving the summons, that Green was in charge of the business of the defendant in the city of New York and that the defendant had property here; but these are merely conclusions of the affiants and are of no avail unless supported by the facts properly set forth. (Taylor v. Granite State Provident Assn., 136 N. Y: 343; Moore v. Monumental Mutual Life Ins. Co., 77 App. Div. 209.) The only other statements in the affidavits upon which it is sought to sustain these conclusions are a general statement in the affidavit of the process server to the effect that the service was made in the office of the company and that Green informed her that he was in full charge of its business and was its manager and that there was no officer or director of the company in this State, and that she noticed stationery of the company and two cases three feet by three feet in dimensions addressed to it in the office and its name on the office entrance door, and statements in the affidavit of the plaintiff’s wife to the effect that she went to the office of the company on the pretext of placing an order for advertising and asked for Duque and was informed that he was in Panama, but that said Green was in charge of defendant’s business, and that on calling on Green there the next day, he informed
There is no evidence with respect to the amount of advertising thus obtained by the defendant here or as to whether advertising orders were obtained only occasionally or so frequently that it might be said that there was a continuity of business. So far as appeared there was no business of the company to be managed here. The only employee of the company here in any view of the evidence was Duque, and the
The observations made in some opinions to the effect that service which renders it reasonably probable that the party proceeded against will receive a process in time to defend (See Hiller v. B. & M. R. R. R. Co., 70 N. Y. 223; Palmer v. Pennsylvania Co., 35 Hun, 369; affd., 99 N. Y. 679; Rochester, Hornellsville & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 48 Hun, 190; Barrett v. A. T. & T. Co., 138 N. Y. 491; Pope v. Terre Haute Car Mfg. Co., 87 id. 137), must be read in connection with the express requirements of provisions of the Code of Civil Procedure that the person upon whom the service is made must be a managing agent of the company, and in the light of the rule stated in Taylor v. Granite State Provident Assn, (supra) that such a managing agent “ must be some person invested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it.” (See, to the same effect, Coler v. Pittsburgh Bridge Co., supra.) If the fact that the process eventually reached the defendant were a controlling factor, service could seldom be set aside, for the motion in all cases must be made by defendant. If there were any evidence that the defendant authorized Green to act as its managing agent within the State it would doubtless be immaterial whether it compensated him for his services or whether he was paid therefor by another (Palmer v. Pennsylvania Co., supra); but here there is no evidence that it authorized Green to act as its agent and the evidence shows that the services he performed were under his employment by, and were for, Duque.
That he assumed to act as agent for the defendant is not sufficient. He must have been authorized by it so to act. (Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 268, 269.) Here there is not even evidence of ratification, for it was not shown that he corresponded with the company in his own name; and the fair inference is that since he was acting as
Moreover, I think, it was not sufficiently shown that the defendant had property within this State to authorize the court to take jurisdiction of the action. That provision of the Code, which is a condition precedent to acquiring jurisdiction, has been held to contemplate the existence here of property of a substantial nature from which a recovery might, in part at least, be satisfied. (Barnes v. Mobile & North Western R. R. Co., 12 Hun, 126; Reddington v. Mariposa L. & M. Co., 19 id. 409; Tuchband v. Chicago & Alton R. R. Co., 16 Civ. Proc. Rep. 241.)
I am of opinion, therefore, that it has not been shown that the defendant was doing business within the State (See Grant v. Cananea Consol. Copper Co., 189 N. Y. 241, and authorities therein cited), or that it had property within the State or that the service was made upon a managing agent of the defendant. This case on the last point I think falls within the rule stated in Coler v. Pittsburgh Coal Co. (supra) as follows: “ In the absence, therefore, of proof with respect to what the relation actually is to the foreign corporation
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Clarke, P. J., and Shearn, J., concurred; Merrell, J., dissented.
I concur in the result of the opinion of Mr. Justice Laxjghlin on the ground that it does not sufficiently appear that the defendant has property within this State, which would be necessary to confer jurisdiction on the court, as the cause arose without the State. I agree with Mr. Justice Merrell that the person served was a managing agent within section 432 of the Code of Civil Procedure.
Dissenting Opinion
The defendant, appellant, is a foreign corporation, publishing, in the city of Panama, a newspaper in the Spanish language, known as La Estrella de Panama. The plaintiff is a resident of and domiciled in the city of New York. The action is to recover damages for an alleged libelous article appearing in said newspaper, published in May, 1918, while the plaintiff was in the said city of Panama. In said article, plaintiff alleges that the defendant published false and malicious statements charging the plaintiff with having purchased stolen goods in the canal zone, knowing the same to have been stolen.
The question involved on this appeal is as to whether or not there was a sufficient service of the summons in this action upon the defendant. The service was made upon one George T. Green, whom the plaintiff alleges was the managing agent conducting defendant’s business in the city of New York. It sufficiently appears from the affidavits that the defendant is a foreign corporation, and that neither the president, vice-president, treasurer, assistant treasurer, secretary nor assistant secretary nor other officer performing corresponding functions of either of such officers was within the State of New York at the time service was attempted, and that
“3. If such a designation is not in force [referring to the designation of a person upon whom process may be served, as provided in section 16 of the General Corporation Law], or if neither the person designated, nor an officer specified in subdivision first of this section [the president and other officers hereinbefore mentioned], can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the State.”
To sustain plaintiff’s claim that the man Green, upon whom service was made, was a managing agent within the provisions of the subdivision above quoted and, therefore, a proper person upon whom service could be made, and in opposition to defendant’s motion to set aside such service, the plaintiff shows, by affidavit, that the service was made by one Katherine Alexander on September 27, 1918, at 17 Battery place in the office of the defendant in the borough of Manhattan, New York city, by delivering a copy of said papers to one G. T. Green, defendant’s managing agent. It appears from the affidavits in opposition to defendant’s motion to set aside such service that the person who made the service was the head of a process serving concern and on the day in question went to the building and entered the office of the defendant therein, over the entrance of which appeared the name or sign of the defendant ccorporation. The process server asked the young lady in charge of the office for a Mr. Duque, whose name also appeared upon the door of the office. It is admitted that the father of Duque, then deceased, at his death was the owner of a majority of the stock of the
It appeared from the affidavits of the process server and of Mrs. Loeb that at the time of their visits to the defendant’s office they observed letterheads and envelopes there bearing defendant’s name and that there were also in defend
The only affidavits submitted in support of the motion to set aside the service of the summons and complaint were made by the said George T. Green, the alleged business manager of the defendant. Green denies that he occupied the position of business manager, but it does appear from his affidavits and also from the brief of the appellant herein that the defendant corporation maintained an office at 17 Battery place, in the borough of Manhattan, city of New York. It is claimed by Green that on the transom appeared in large letters the name of Carlos R. Duque, and that there also appeared thereon, but in smaller type, the name of the defendant corporation. Green admits in his affidavit that the defendant carries on the business of soliciting advertising matter for its newspapers at said place of business, and that all orders for advertising space are taken at that place. While disclaiming that he has any business connection with the defendant, Green admits that the father of Carlos R. Duque was the owner of most of the appellant’s stock; that the father is dead and it is claimed that said stock is now involved in litigation at Panama. Green, however, admits that he is the secretary of the son, Carlos R. Duque, and that Duque was not in this country when the service was made. Green admits that he was at the office, 17 Battery place, New York city, and that the papers were served upon him. Relative to his connection with the defendant, it is admitted that when the said Carlos R. Duque was away from the New York office, it was his custom to direct Green to attend to the matter of taking orders for advertising space in the publications of the defendant corporation and that it was Duque’s custom to leave with him a schedule of rates. Green claimed that he had no discretion as to fixing rates, but merely quoted those given him by Duque. He admitted, however, that he received orders for advertising from merchants in New York and vicinity, and that it was his custom to send bills for such advertising to them, and that when remittances were made they were made to the New York office, and in the absence of Duque, that he, Green, remitted the funds, less Duque’s commission, to Panama.
His connection with the defendant concern was such as to make it absolutely certain that - any papers or process left with him would finally reach and be brought to the attention of the defendant corporation.
Upon this motion to set aside service, no affidavit of any officer of the defendant corporation is presented, the only affidavits used being those of the defendant’s said managing agent. This, I deem a circumstance of some importance. The force of Green’s denial of agency is weakened by proof of his declarations to the contrary contained in the affidavits in opposition to defendant’s motion. (Perrine v. Ransom Gas Machine Co., 60 App. Div. 32.)
While the declarations of the agent alone are ordinarily insufficient, as against the principal, to establish such agency, here we have not only the proven declarations of the man Green upon whom service was made, but we have convincing proof and admitted acts on his part showing conclusively that he was the only representative of the defendant in this country, and, within the provisions of the Code, its managing agent at the time service was made. (Tauza v. Susquehanna Coal Co., 220 N. Y. 259; Tuchband v. C. & A. R. R. Co., 115 id. 437.)
The strong circumstance, it seems to me, showing that the person served was, in fact, the managing agent and a proper person to receive service of process, lies in the fact that the defendant in this action was permanently in business here and maintained at 17 Battery place, New York city, a separate office for the purpose of soliciting business in its behalf; that Green, the person served, was, and for over a year prior to service of said summons had been, in sole and active charge of that office and had transacted and carried on all the business of the defendant in this country at that office, having full authority to contract with advertisers in behalf of the defendant company, to render bills, receive payments, and to remit to the defendant moneys received from advertisers, and
Whether Green received a salary directly from the defendant, or, as he claims, through Duque, is of little importance, the fact being that he was conducting defendant’s business in this country at the time service was made. (Palmer v. Pennsylvania Co., 35 Hun, 369; affd., 99 N. Y. 679.)
Surely the reason for the Code provision permitting service upon a managing agent was satisfied upon the facts in this case. No question could reasonably arise as to whether the defendant would ultimately receive notice of the action against it. As was stated by Mr. Justice Pratt in Palmer v. Pennsylvania Co. (35 Hun, 369; affd., 99 N. Y. 679): “The Code does not specify the extent of the agency required to bind defendants by service of process, except that the person upon whom the service is made must be managing agent. Were the rule to be established as contended by appellants, that the agent must have charge of the whole business of the corporation, the statute would be a dead letter, for such an agency seldom, if ever, exists. Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made. The statute is satisfied if he be a managing agent to any extent.”
In Hiller v. B. & M. B. R. R. Co. (70 N. Y. 223, 227) Judge Earl said: “The object of all service of process is said to be to give notice to the party on whom service is made, that he may be aware of and may resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to defend.”
These authorities state the reasonable rule and justify the Code provision permitting service upon a resident managing agent of a defendant corporation and, I think, fully sustain the contention of the respondent herein.
The defendant’s motion to set aside the service of the summons herein was properly denied at Special Term, and the order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.