Gursky v. Blair — 164 A.D. 612

Majority

p. 612

Simon Gursky, Respondent, v. Frank W. Blair and Others, as Receivers of Pere Marquette Railroad Company, Appellants.

First Department,

December 4, 1914.

Headnote

Corporation — action by resident against receivers of foreign corporation — service of summons.

In an action by a resident of this State against the receivers of a foreign corporation, service of summons in this State should be set aside, where it does not appear that at the time of the service the persons served were connected in any way, either with the corporation or the receivers, or that the corporation had property in this State or that the receivers had designated a person upon whom service might be made.

Appeal by the defendants, Frank W. Blair and others, as receivers, etc., appearing specially, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1914, denying their motions to set aside the service of the summons and complaint attempted to be made upon them in this action.

p. 613

Edward B. Boise, for the appellants.

- - , for the respondent.

The defendants are receivers of the Pere Marquette Railroad Company, a Michigan corporation, in which State they reside. Copies of the summons and complaint were served upon William L. Marcy in the city of Buffalo, 1ST. Y., and upon Edward B. Johns in the city of New York. The defendants appeared specially and moved to set aside the service. The motions were denied and they appeal.

I am of the opinion the motions should have been granted. No affidavits were submitted in opposition to the motions and there is nothing in the moving papers to show that Marcy or Johns, when the service was made, had any connection- whatever, either with the railroad company or the receivers, or either of them. In this respect the case is radically different from Jacobs v. Blair ( 157 App. Div. 601 ).' There it appeared that the railroad company had property in the State of New York and that its receivers had not designated any person upon whom service of process could be made. A majority of the court held that in an action by a resident of this State against the receivers the summons could he served upon their managing agent here. In this case it does not appear whether the railroad company has any property in the State, whether the receivers have designated a person upon whom service of process might he made or, as already indicated, that the persons upon whom copies of the summons were served had any connection with the defendants whatever.

The orders appealed from, therefore, are reversed, with ten dollars costs and disbursements, and the motions granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, and motions granted, with ten dollars costs.