4 N.Y.S. 169 | N.Y. Sup. Ct. | 1889
Lead Opinion
The summons in this case was attempted to be served by delivery of a copy thereof to one Edward Curry at the office of the defendant, in the city of New York. The proof seems to indicate that the person served was the assistant treasurer of the defendant, although at the time of the service, when asked by the deputy-sheriff, he said he was the treasurer of the corporation. According to section 431 of the Code, personal service of a summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof within the state to the president or other head of the corporation, to the secretary or clerk of the corporation, or to the cashier, treasurer, director, or managing agent. The service of the summons was set aside upon the ground that Curry occupied neither of those positions. It is urged, in the first place, upon this appeal, that, as the treasurer was a nonresident, therefore the assistant treasurer was the person named, or intended to be named, in the statute; and, if Curry was not an assistant treasurer, then he came under the definition of a managing agent, and service upon him, therefore, conferred jurisdiction. The fact that the person served was not the treasurer seems to be clearly established, and the fact that he occupied another office, and performed the duties of treasurer, perhaps, did not authorize the service upon him so as to bind the corporation, as the assistant treasurer is not designated in the Code as one of the persons on whom such service shall be made. It is sought also to sustain the service by showing that Curry was a managing agent of the corporation. In this we think the proof wholly fails. It is true that Curry was engaged in and about the business of, the corporation, and that, in addition to his ordinary duties as clerk to the corporation, he was in the habit, as assistant treasurer, of drawing checks payable to the order of another clerk of the corporation. But there is no evidence whatever that he had any part in the management of the business of the corporation, or that he exercised any authority as a managing agent. Numerous cases have been cited upon the part of the appellant to sustain the proposition that he was at least a managing agent, and our attention is particularly called to the case of Palmer v. Railway Co., 35 Hun, 369, affirmed in 99
Bkady, J., concurs.
Dissenting Opinion
(dissenting.) Edward Curry,, who was the person upon whom the summons and complaint in this action was served, is shown to be what is called the “assistant treasurer” of the defendant. The person who was elected treasurer is not, and never was, a resident of this state, but of Maryland, and he was not, by virtue of his office, charged with any special duty or function other than that of the treasurer of the system of railroads known as the “Baltimore & Ohio,” of which the defendant forms a small portion. Under the by-laws of the defendant, it is true, there is no provision made for the appointment of any person as assistant treasurer, yet Mr. Curry was in fact, and to all intents and purposes, the treasurer of the defendant. Under section 431 of the Code of Civil Procedure, it matters not what the title of the officer of a domestic corporation may be, so long as he discharges the function of the office contemplated by that section. A service upon the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent, is a service upon the corporation itself. It is no answer to the regularity of the service in this instance to say that Mr. Curry was not regularly elected or chosen by the corporation as its treasurer; performing all of the duties pertaining to the treasury department of this corporation, he must be deemed to be the treasurer, within the intent and meaning of this section. But, even if this were not so, the word “clerk” is, in my judgment, the proper name, as used in this statute, to describe the person upon whom this service was made. He was not performing merely clerical duties in subordination to any other officer of the corporation, but was a “clerk to the corporation;” that is to say, he was performing for the defendant duties distinctively in its behalf, and not in behalf of any officer of the corporation. For these reasons I think the order should be reversed.
