PORTER v. SEWALL SAFETY CAR HEATING CO.

PORTER v. SEWALL SAFETY CAR HEATING CO. New York Supreme Court, First District, Chambers ; August, 1889. Service upon foreign corporation.] Service of summons upon a foreign corporation within the State is sufficient if made here upon the business manager of the corporation, although the latter is within the State only upon private business of his own. Motion to set aside service of summons, f Two actions were commenced against The Sewell Safety Car Heating Company, a foreign corporation, (1) by John B. Porter, and (2) by The American Lighting Company, and the summons were served on the vice-president and business manager of the defendant, while he was in the State on private business. The defendant now moved to set aside the service. James McKeen, for the motion, J. S. Moulton, opposed. [MAJORITY — O’Brien, J.] O’Brien, J. The service of the summons in both of the above entitled actions was made upon the vice-president and manager of a foreign corporation while he was visiting at Saratoga, which it is claimed is void under section 432 of the Code, for the reason that he was not temporarily or permanently performing the functions of vice-president or general manager within the State. The contention presented is to be determined by the construction or meaning of the words “ within the State,” as found at the end of subdivision 3 of said section. The first subdivision of section 432 of the Code, relating to service upon a foreign corporation, provides that it must be made by delivering a copy thereof within the State to the president, treasurer, or secretary. If such officer cannot be found, and the corporation has property within the State, or the cause of action arose therein, service must be made by delivering a copy of the summons to the cashier and director, or a managing agent of the corporation within the State. It is claimed that the words “ within the State,” as used in this subdivision 3, must be upon persons thus designated who are performing the functions of their office within the State. In this construction I do not concur, for the reasons that it will be noticed that the words “ within the State ” are used in the paragraph preceding subdivision 1 of section 432, and in fact throughout the section so as to relate not to the person, but to the place where the service is to be made. The case of Pope v. Terra Haute Car Company (87 N. Y. 137), decides that it is not needful that the officer served should be here in his official capacity or engaged in the business of the corporation. Hiller v. B. and M. Railroad Co. (70 N. Y, 223), states that K as a general rule, any service will be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of the action against him, and have an opportunity to defend.” It being conceded for the purposes of this motion that the cause of action arose within the State, and service having been made upon one of the officers designated by subdivision 3, within the State, and my conclusion being that the words “ within the State ” relate to the place where the service should be made, the motions to set aside the service in these actions must be denied. Code Civ. Pro. § 432, is as follows: Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows.: 1. To the president, treasurer, or secretary ; or, if the corporation lacks either of those officers, to the officer preforming corresponding functions, under another name. 2. To a person designated for the purpose by a writing, under the seal of the corporation, and the signature of its president, vice-president or other acting head, accompanied with the written consent of the person designated, and filed in the office of the secretary of state. The designation must specify a place, within the State, as the office or residence of the person designated ; and, if it is within a city, the street, and street number if any, or other suitable- designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner. But the person designated may, from time to time, change the place specified as his office or residence, to some other place within the State, by a writing, executed by him, and filed in like manner. The secretary of state may require the execution of any instrument, specified" in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation, so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. 3. If such a designation is not in force, cr if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein : to the cashier, a director, or a managing agent of the corporation within the State.