Hat-Sweat Mfg. Co. v. Davis Sewing-Mach. Co.

• Decision Date: 02 June 1887
• Citation: 31 F. 294
• Parties: HAT-SWEAT MANUF'G CO. v. DAVIS SEWING-MACHINE CO.
• Court: U.S. District Court — Southern District of New York

31 F. 294

HAT-SWEAT MANUF'G CO. v. DAVIS SEWING-MACHINE CO.

United States District Court, S.D. New York.

June 2, 1887

John R Bennett, for plaintiffs.

Wetmore & Jenner, for defendants.

BROWN J.

This is an action for the recovery of $100,000 penalties alleged to have been incurred under section 4901 of the United States Revised Statutes for stamping certain patented articles without the plaintiffs' license. Such actions are required by section 4901 to be brought in the district 'within whose jurisdiction such offenses may have been committed. ' The act of stamping being done within the Southern district of New York, the suit could not be prosecuted in any other district. Pentlarge v Kirby, 19 F. 501; affirmed, 20 F. 898, 22 Blatchf. 261. The defendant corporation belongs in Connecticut, where all its officers reside. The process in this cause was served upon Alvin B. Felt, as agent of the defendant company. The company appears specially for the purpose only of moving to set aside the service of the summons as a service upon the company, on the ground, that Felt is neither an officer nor a 'managing agent' of the company, within the meaning of section 432 of the New York Code of Civil Procedure, which prescribes the mode of serving process upon foreign corporations. For the defendants it is claimed that the provisions of the state statute control, because section 914 Rev. St. U.S., declares that 'the practice, pleadings and forms and mode of proceeding, etc., shall conform as near as may be' to the state practice. In the case of Lung Chung v. Northern Pacific, etc., Co., 19 F. 254, it was held by DEADY, J., that the provisions of the state law, as to the sufficiency of the service of process, were embraced by this section.

For the defendant it is insisted that Felt is not a 'managing agent' of the defendant company, because he has no special authority to accept the service of the summons, and is not a general representative of the company. His relations to the company are stated in his own affidavit as follows: 'I have charge of the factory in the city of New York, the expenses of the running of which are paid by the said company and myself jointly, and the profits, if any, of which are payable one-half to me. The business which I do, or of which I have charge, in the city of New York, is the stitching of hat-sweat, and doing binding, cording, or braiding work, on various articles. The business of the defendant, Davis Sewing-Machine Company, is the manufacture of sewing-machines, and their factory and office are at Watertown, New York.'

The alleged unlawful stamping of articles for which the penalties are sought to be recovered must be deemed, for the purposes of this motion, to have been done by Felt in the city of New York, in the course of manufacturing for the joint account of himself and the defendant company. In several actions in the state courts, it has been held that the term 'managing agent' means a person exercising the functions of an officer, in the control and management of the company's business, and does not include a person having charge merely of some special work in behalf of the company; such as a baggage master in respect of baggage, (Flynn v. Hudson River, etc., 6 How.Pr. 308;) or a person employed to make the purchases of horses and feed, (Emerson v. Auburn R.R., 13 Hun, 150;) or an assistant secretary, (Sterett v. Denver, etc., 17 Hun, 316;) or a person having charge only of the transfer of the stock, and the transmission of assessments paid in, (Reddington v. Mariposa, etc., 19 Hun, 405;) or a person who merely sells tickets, (Doty v. Michigan Cent., etc., 8 Abb.Pr. 427.)

In none of the foregoing cases are the facts analogous to the present. The only case somewhat analogous, to which I have been referred, is that of Brewster v. Michigan Cent., etc., Co., 5 How.Pr. 183, in which the alleged agent ran the steamer Mayflower upon some arrangement with the defendant company for the transfer of its passengers from the railway. In the course of the decision, WELLES, J., observes, (page 186:)

'The managing agent upon which the summons may be served must be one whose agency extends to all the transactions of the corporation; one who has or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of its business.'

The language quoted is much broader than that used in the subsequent cases, and was not necessary to the decision of the case; since it appeared that the...