37 F. 159 | S.D.N.Y. | 1888
Upon the language of the marshal’s return, stating service only on Bailey, as well as upon the affidavits of Bailey and Carian, I cannot find that the citation was served upon Carian. Mr. Elliott’s affidavit says it has always been understood that Carian was the defendant’s “managing agent. ” The directory does not indícalo Bailey as agent, and the card attached to the affidavit docs not so represent him. 1 cannot, therefore, find service on Bailey sufficient.
Had Carian been served the question would have been more embarrassing. Under the New York Code (section 1780) it would seem that no action would lie in the present case in the state courts, for both parties are non-resident, the cause of action did not arise here, and the defendant has no property here. Courts of admiralty have a discretion as to entertaining suits between foreigners. This whole dealing being in Florida, where all the officers reside, and the'libelant being an English corporation, no comity, or reasons of justice or of superior convenience, are shown to demand relief here, when full relief is easy within the jurisdiction where the transaction was had. Besides that, 1 doubt if an agent whose authority is limited to a distinct branch of business here, represents the corporation as to matters wholly outside of that branch of business, so that, as respects the latter business done elsewhere, he can be held to be in any sense such a “managing agent” as to make the corporation “found” in his person within this state. Admiralty Rules, 2, 3, 25. See St. Clair v. Cox, 106 U. S. 350, 356, 359, 1 Sup. Ct. Rep. 354; Hat Sweat Co. v. Davis, 31 Fed. Rep. 294.
Reported by Edward tt. Benedict, Esq., of the New York bar.