Green v. Morningside Heights Housing Corp.

• Citation: 7 A.D.2d 708,180 N.Y.S.2d 104
• Parties: Grace GREEN, individually and as administratrix of the goods, chattels and credits that were of Raymond Green, deceased, Plaintiffs-Respondents, v. MORNINGSIDE HEIGHTS HOUSING CORP., Defendant-Appellant, Lehigh Salvage Corp. and J. Klotz, Inc., a joint venture, Joseph P. Blitz, Inc., D'Acquilla Brothers Co., Inc., Lehigh Salvage Corp. and J. Klotz, Inc., Defendants.
• Decision Date: 02 December 1958
• Court: New York Supreme Court Appellate Division

Page 104

180 N.Y.S.2d 104

7 A.D.2d 708

Grace GREEN, individually and as administratrix of the goods, chattels and credits that were of Raymond Green, deceased, Plaintiffs-Respondents, v. MORNINGSIDE HEIGHTS HOUSING CORP., Defendant-Appellant Lehigh Salvage Corp. and J. Klotz, Inc., a joint venture Joseph P. Blitz, Inc., D'Acquilla Brothers Co., Inc., Lehigh Salvage Corp. and J. Klotz, Inc., Defendants.

Supreme Court, Appellate Division, First Department.

Dec. 2, 1958.

William F. McNulty, New York City, of counsel (Rudser & Fitzmaurice, New York City), for appellant.

Max Shamis, Brooklyn, of counsel (Harry J. Coman, New York City), for respondents.

Before BOTEIN, P. J., and VALENTE, McNALLY, STEVENS and BERGAN, JJ.

PER CURIAM.

Order affirmed with $20 costs and disbursements to respondents. McNALLY, J., dissent in a dissenting opinion.

McNALLY, Justice (dissenting).

I dissent and vote to reverse the order below.

The Legislature has prescribed with great particularity the manner in which personal jurisdiction of a domestic corporation shall be obtained. Where, as in the case at bar, the legislative mandate has not been complied with, the courts may not provide an equivalent therefor. The mandate of section 228 of the Civil Practice Act is clear. The statute directs that personal service of a summons on a domestic corporation 'must be made by delivering a copy thereof' to one of the persons specifically designated in subdivision 8 thereof. Concededly, that was not done in the case at bar.

At the hearing before the Official Referee, the process server admitted that he 'gave the summons to the receptionist'. When he was asked if he saw Arthur Frank that day, he could only say: 'I think I did.' Later he stated: 'I saw him partly, but I didn't get a good look at him.' He could not identify Mr. Frank. Geraldine Ciliberti, the receptionist, testified that the process server merely walked into the reception room of the James Felt & Co., Inc., office and handed her the summons without saying anything at all and that she later gave the paper to Mr. Frank in his office, which was located 'down a hall' away from the reception room. Arthur Frank testified: 'I never saw the process server.'

At the premises where service was attempted, the defendant maintained 'an executive vice-president, two secretaries and approximately 26 maintenance men.' Under these circumstances, there was plainly no reason at all why proper service could not have been made by delivering a copy of the summons to the defendant's executive vice-president on the premises. Even if it be assumed that Arthur Frank is the managing agent of this domestic corporation within the meaning of section 228 of the Civil Practice Act, the mandate of the statute that service of the summons must be made by delivering a copy thereof to...