Tuchband v. Chicago & A.R. Co.

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 437,22 N.E. 360
• Parties: TUCHBAND v. CHICAGO & A. R. CO.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 437

22 N.E. 360

TUCHBAND

v.CHICAGO & A. R. CO.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, first department.

SERVICE OF SUMMONS.

Plaintiff's affidavit, in a suit against a foreign corporation, alleged that defendant had property in the state, consisting of cars, office furniture, tickets, etc. One O. was described in defendant's list of ‘officers and agents' as its ‘general agent, passenger department, 261 Broadway, New York.’ The windows of 261 Broadway were inscribed with signs indicating that the office is the general office for the general railroad business of defendant. Held, that it sufficiently appeared that defendant had property in the state, and that O. was its ‘managing agent,’ to allow service of summons upon him, under Code Civil Proc. N. Y. s 432, permitting service on a foreign corporation, having property in the state, by leaving a copy of the summons with its ‘managing agent in the state.’

L. A. Gould, for appellant.

Henry Schmitt, for respondent.

DANFORTH, J.

The plaintiff's cause of action arose in the state of Missouri. The defendant is a foreign corporation, and there has been no designation by it of any person upon whom service of process may be made in the state of New York. One Charles Oberg is described in the defendant's circulars and time-tables, and in its list of ‘officers and agents,’ as its ‘general agent, passenger department, 261 Broadway, New York;’ and of himself says he has charge ‘of the correspondence and business matters relating to carriage of passengers, but has nothing to do with the freight department.’The place described as ‘261 Broadway’ is on a street corner. It has windows on Broadway and others on Warren street. They are inscribed ‘Chicago & Alton Railroad;’ ‘Freight and Passenger Agency, Chicago & Alton Railroad;’ ‘Chicago & Alton Railroad Office.’ These signs are several times repeated, and plainly indicate that the office is a general office for the transaction of general railroad business in connection with the defendant's road; the carriage of passengers and freight constituting its entire business. The summons and complaint in this action were served on Oberg. The defendant moved to set aside the service of the summons and complaint ‘upon the ground that the person to whom the same was delivered was not a person upon whom any service is authorized by statute.’ The court at special term held the service to have been well made, and upon the proper person; saying: ‘Oberg was a managing agent, within the meaning of that term as used in the Code;’ but granted the motion for the reason that ‘it is not shown that the defendant now has, or at the time of the service had, any property within the state.’ Upon appeal, the general term reversed the order of the special term, and denied the motion; the learned court considering both questions. 5 N. Y. Supp. 493. It will be seen, therefore, that both courts agree that Oberg was, at the time of service, a managing agent of the corporation; the general term holding, also, that the corporation was shown to have property within the state.

The Code (section 432) provides ‘that personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof’ (1) ‘to the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions under another name.’ (2) To a person designated for the purpose, in the manner therein prescribed. (3) If there is no such person as those named in the preceding subdivisions within the state, ‘and the corporation has property within the state, or the cause of action arose therein, to the cashier, or director, or a managing agent of the corporation within the state.’ It being conceded that the cause of action did not arise in this state, we are to inquire whether, first, the corporation has property within this state. As to that, there are...