Mulhearn v. Press Pub. Co.

• Decision Date: 13 November 1890
• Citation: 53 N.J.L. 150,20 A. 760
• Parties: MULHEARN v. PRESS PUB. Co.
• Court: New Jersey Supreme Court

20 A. 760

53 N.J.L. 150

MULHEARN

v. PRESS PUB. Co.

Supreme Court of New Jersey.

Nov. 13, 1890.

(Syllabus by the Court.)

This is a motion to set aside the service of a summons upon a foreign corporation. The Press Publishing Company is a corporation organized under the laws of the state of New York, and doing business in New York city. It publishes the New York World newspaper. The plaintiff brought, in our supreme court, against the defendant named, and another, an action for libel. The summons was served by the sheriffs of Essex and Union counties. The service in Essex was upon one Jabez Feary, and in Union upon one Alexander Cross. Both of these were news dealers selling the World, with other papers. Both took advertisements for the World, which were forwarded to New York. Bills for the same were sent from the World office, the amounts were collected by these persons, and remitted, less commissions, to the New York city office. Feary sent the copy of the summons served upon him to the office of defendant. His place of business in Newark was referred to in the World as an authorized office for the reception of advertisements at the regular price. There appears to have been no other connection between the defendants, and the persons upon whom the services were made.

Argued June term, 1890, before REED and GARRISON, JJ.

C. H. Beasley, for the rule. J. A. Beacher, contra.

REED, J. The question is whether either of the persons upon whom service was made was an agent of the corporation within the meaning of section 88 of the corporation act, (Revision, 193.) I think not. As vendors of newspapers they had no connection with defendants. They dealt with the news company. As receivers and forwarders of advertisements their employment was confined to the narrowest limit. The line between those who represent and those who do not represent a foreign corporation for the purposes of this act cannot be defined by a formula. But it was never intended that every servant who happened to do some act in this state for a foreign corporation represented the company. Service upon a carter who was sent across the ferry into this state for a load of merchandise belonging to a foreign corporation would be absurd. These persons have little, if any, more representative character than the carter. The act of one of them, at last, in sending the copy served to the World office did not create an agency. The duties of these men were entirely different from the duty of Berry, the person upon whom the service was made in Norton v. Bridge Co., 51 N. J. Law, 442, 17 Atl. Rep. 1079. He was the general superintendent of a large work in this state with power to employ, discharge, and pay men for the company. It is however insisted that the defendants have waived the irregularity of service, and are now in court. This waiver, it is insisted, is the...