| N.Y. Sup. Ct. | Jun 6, 1890
The summons was served by delivering it to William J. Behan. He had been the president of the defendant, which is a corporation existing in the state of Louisiana. It had designated no person within this state upon whom the summons might be served, but it was made to appear that the defendant had property within this state, and the service was made upon Behan, as an officer, or managing agent, of the corporation within this state. The service of the summons was made on the 10th of February, 1890, and the person upon whom it was served stated in his affidavit that he had been president of the defendant prior to the 18th of January of this year, but on that day resigned his office, and on the following day his resignation was accepted by the board of directors, and on the next succeeding day an annual election was held for directors for the ensuing year, and his name was omitted from the new board. These statements were also sustained by the affidavit of the secretary of the defendant, who swore to the same state of facts. And Mr. Behan further stated in his affidavit that bis only relation with the defendant was that of a member of a firm, who were commission merchants, doing business in the city of Hew Orleans, and that the firm had a written •contract with the defendant, agreeing to advance money to it for the purposes necessary for conducting its business, and to market the bagging and other products of the defendant upon certain terms as to credit, for a commission on the gross sums for their services; that their employment was as commission merchants, and they were in no sense agents of the company. And this -statement was also in like manner sustained by the affidavit of the secretary. To meet and overcome the effect of this evidence it was shown that a cargo •of jute butts had arrived in this state on the 10th of February, 1890, for the defendant, and that after its arrival Gustav us Tuckerman, whose affidavit was produced upon the hearing, called upon Mr. Behan at the Victoria Hotel, .and mentioned to him the arrival of the vessel, and asked him whether the butts should be shipped to Hew Orleans or stored here in bond, and he replied that they should be stored. He stated further that he had previously been told by Mr. Behan that he had resigned as president, but that he complied with the instructions given to him, because he thought that having previously been president of the company, and his brother at that time being president, or about to become president, the company would ratify or consent to any instructions he might give to the affiant; and in accordance with what took place the cargo was stored under the instructions of this person. But this affidavit in no way conflicts with the statements before referred to, that the only relation which Behan sustained to the defendant was that of a mem