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Kramer v. Buffalo Union Furnace Co.

Supreme Court of New York, Appellate Division

May 5, 1909


Appeal from Special Term, Erie County.

Action by John Kramer, as administrator of Janos Urgyan, against the Buffalo Union Furnace Company. From an order denying a motion to set aside the service of the summons, defendant appeals. Reversed.

Alfred L. Becker, for appellant.

Charles Newton, for respondent.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

[116 N.Y.S. 1102] MCLENNAN, P. J.

The defendant is a domestic corporation, and service of the summons herein was sought to be made by delivering a copy thereof to one John J. Sammon, who was in defendant's employ, and who was designated as " assistant superintendent."

The sole question presented by this appeal is: Was Sammon a person upon whom a valid service of a summons could be made in an action against the defendant within the meaning of subdivision 3 of section 431 of the Code? Subdivision 3 provides, in substance, that personal service of a summons may be made upon a domestic corporation by delivering a copy thereof within the state " to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent." Concededly Sammon was not " the president or other head" of the defendant, " secretary or clerk" to it, " the cashier, the treasurer, or a director" of the defendant. Was he its " managing agent" ? If not, the service of the summons upon him was void, and the order appealed from should be reversed. The designation of Sammon as " assistant superintendent" made by the defendant is not the office or position of any person specified in the statute upon whom service can be made. So that the plaintiff was in no manner misled. Sammon was not known, called, or designated " managing agent" by the defendant, but " assistant superintendent," by which title he had been known ever since he entered into defendant's employ. The fact that the summons was delivered by Sammon to the defendant is immaterial. If Sammon was " managing agent," service upon him was good, and was binding upon the defendant, wholly irrespective of what he may have done with the paper after the same was delivered to him. The converse of the proposition is equally true. If service was not authorized to be made upon Sammon because he was not " managing agent," the service was void, and the defendant had the right to insist that it would not be bound by such service, especially where as in this case it acted promptly in repudiating such service.

In the case of Eisenhofer v. New Yorker Zeitung Publishing Company, 91 A.D. 94, 86 N.Y.Supp. 438, the court in discussing this proposition said:

" But it is urged that the service made accomplished the object of the statute, inasmuch as the papers served ultimately reached the desired place, which is evidenced by the fact that the defendant, through its counsel, appeared specially for the purpose of moving that the service be set aside. Of course, the service of process is to give notice to the party proceeded against, and, if service which accomplishes that end answers the requirements of the statute, then this service is good. But it does not, and for the obvious reason that the Legislature has seen fit to prescribe the manner in which jurisdiction of a domestic corporation may be obtained, and, where it is decreed that jurisdiction can be obtained only in a certain way, that way must be followed to the exclusion of all others, and, unless it is, the service is ineffectual for any purpose. The Legislature has the power to say how jurisdiction of a corporation can be obtained. It has so declared, and it is for the courts to enforce its mandate, and not prescribe some other one. To say that service of process upon some one not authorized by statute is good because it ultimately reaches the person intended is to constitute the courts a legislative body instead of one authorized to construe and enforce statutes made by the Legislature."

[116 N.Y.S. 1103] In the case of Winslow v. Staten Island Rapid Transit Railway Company, 51 Hun, 298, 300, 4 N.Y.Supp. 169, 170, where the same question was being considered, Justice Van Brunt, writing the opinion for the court, said:

" But, where the statute prescribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with or jurisdicion cannot be acquired. If there are any hardships under the law, it is not for the courts to amend the statute, because that is a duty which is imposed upon the Legislature."

So that we come to the consideration of the question whether Sammon was a " managing agent" within the meaning of the statute. The duty which he performed and the position which he occupied is fully set forth in his affidavit, and there is no controversy upon the subject. He states:

" I go to the company's plant at Hamburg street between 6 and 7 o'clock in the morning, and make a general inspection of the plant, taking notice of any particular thing that should be done around the plant. I then see that those things are done, going to the general superintendent about them when they are of special importance. During the day I direct, under the general supervision and authority of the general superintendent, the work of some 400 men employed at the plant. If occasion demanded, I would hire and discharge men, always acting under the general supervision of the general superintendent."

He further states that such have been his duties and his employment for a year and a half, and ever since he entered into the employ of the defendant; that his position was designated as " assistant ...

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