The opinion of the court was delivered by: KNIGHT
On March 4, 1948, a Deputy United States Marshal served upon Adam E. Cornelius, Jr., a copartner of the firm of Boland & Cornelius, at his office in Buffalo, N.Y., a warrant of monition and a copy of the libel in this action.
Libelant urges that said Cornelius, at time of service, was managing agent for respondent Browning Steamship Company and relies on section 229 of New York Civil Practice Act, which provides in part as follows:
'Personal service of the summons upon a foreign corporation must be made by delivering a copy thereof, within the state, as follows:
'3. To the cashier, a director or a managing agent of the corporation, within the state, if service cannot be effected under subdivision two of this section, or an officer of the corporation specified in subdivision one of this section, with due diligence, cannot be found within the state.'
The libel alleges that respondent Browning Steamship Company is a Michigan corporation. This is not denied.
It has been held: 'Service of monition in admiralty may be made under the provisions of a state statute regulating the mode of service in actions at law and in equity.' Doe v. Springfield Boiler & Mfg. Co., 9 Cir., 104 F. 684, 686. See also Spreckels Sugar Co. v. South Atlantic S.S. Line, D.C.S.D. Ga., 55 F.Supp. 670, 672; Insurance Co. of North America v. Frederick Leyland & Co., D.C.E.D. Pa. 139 F. 67; Goetz v. Interlake S.S. Co., D.C.S.D.N.Y., 47 F.2d 753, 757; Jenkins v. Lykes Bros. S.S. Co., D.C.E.D. Pa., 48 F.Supp. 848.
This law is not questioned by respondent, which urges that said Cornelius, when the warrant of monition was served upon him, was not its 'managing agent.' This is the question which must now be answered. 'The agency relationship must exist at the time of the service.' Spreckels Sugar Co. v. South Atlantic S.S. Line, D.C.S.D. Ga., 55 F.Supp. 670, 672; Johnson v. Black Diamond Lines, D.C.E.D. Pa., 36 F.Supp. 721, 722; Sasnett v. Iowa State Traveling Men's Ass'n, 8 Cir., 90 F.2d 514, 516.
Respondent, in support of its motion, has submitted two affidavits, to wit, of John J. Boland, a member of the firm of Boland & Cornelius, and of Alexander MacLennan, acting treasurer of T. H. Browning Steamship Company, Inc.
Boland alleges: 'That (he) is not acquainted with Browning Steamship Co., but is acquainted with T. H. Browning Steamship Co., Inc. (whose office and place of business) is at Detroit, Michigan * * * . That on March 4, 1948, and at no time since said date was the firm of Boland & Cornelius, or any of the partners thereof, a managing or general agent of T. H. Browning Steamship Co., Inc. and neither * * * was said firm * * * or any of its partners an agent of T. H. Browning Steamship Co., Inc., authorized by appointment or by law to receive service of process for T. H. Browning Steamship Co., Inc. That the only agency relation of any kind that has existed between T. H. Browning Steamship Co., Inc. and the firm of Boland & Cornelius and its partners, has been that during the seasons of navigation since about September 1945 when said Company began business, the firm of Boland & Cornelius has acted as loading and unloading agents for said Company for vessels operated by it when they have been at the Port of Buffalo, and that it has acted as broker in negotiating for cargoes and chartering of vessels operated by said Company for cargo; that the duties of said firm as loading and unloading agents have been duties in connection with the dispatch of vessels and collecting and remitting freights.'
MacLennan alleges 'that the T. H. Browning Steamship Company, Inc. does not and did not in the past maintain any office, agent or agency within the State of New York * * * nor has it engaged in the conduct of business nor has it engaged in the conduct of business nor is it qualified to carry on business in the State of New York; that in the operation of chartered vessels on the Great Lakes in interstate commerce * * * Buffalo, New York, have on occasions during the season of navigation, which is customarily from April 15 to November 30, acted as loading and unloading agents for said company for vessels operated by it when they have been at the port of Buffalo, New York, and the said co-partnership has likewise acted on occasions as brokers in negotiating for cargoes and chartering of vessels operated by said company for cargoes; the duties of the said co-partnership being restricted to that of loading and unloading agents, the dispatching of the company's chartered vessels and sometimes in the collecting and remitting of freight moneys; that this is a customary practice in the operations on the Great Lakes and other persons have similarly acted for said company in other ports on the Great Lakes * * * that said T. H. Browning Steamship Company, Inc., has never at any time appointed the said Boland & Cornelius as a managing or general agent of the T. H. Browning Steamship Company, Inc., nor has said firm * * * or any of its partners been appointed or authorized to receive service of process for said T. H. Browning Steamship Company, Inc., nor were they so authorized on March 4, 1948.'
Libelant has submitted no opposing affidavit.
In Cohen v. American Window Glass Co., D.C.S.D.N.Y., 41 F.Supp. 48, 49, 50, it is said:
'The general rule is well stated in Taylor v. Granite State Provident Ass'n, 136 N.Y. 343, 32 N.E. 992, 993, 32 Am.St.Rep. 749, where the court said: 'A managing agent must be some person invested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it".
In United States Merchants' & Shippers' Ins. Co. v. Elder Dempster & Co., 2 Cir., 62 F.2d 59, at page 60, cited by libelant, which held that a person advertised by foreign corporation as having charge of its New York ship agency was the corporation's 'managing ...