Buchholtz v. Florida East Coast Railway Co.

Majority

p. 566

Mendel Buchholtz, Respondent, v. Florida East Coast Railway Company, Appellant.

Headnote

Befer.ence — when ordered to aid the court in deciding a motion.

A reference should not be ordered to aid the court in deciding a motion except in a very unusual and exceptional case; if, after both parties have had full opportunity to present all the facts, the court deems further proof- essential, it may ■allow or direct additional affidavits to be filed.

Appeal by the defendant, the Florida East Coast Railway Company, from so much of an order 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 8th day. of January, 1901, as directed a reference to take proof to be used on a motion to set aside the service of the summons and complaint and to dismiss the action.

The complaint herein alleged that the defendant, the Florida East ■ Coast Railway Company, a foreign corporation organized under, the laws of the State of Florida, suffered certain goods which the plaintiff, a resident of the State of ¡New York, delivered to it at Miamet, Fla., on September 21, 1898, for transportation to Key West, Fla., to be lost or destroyed. Personal service of the summons and complaint was made ¡November 9,1900, on Robert Parsons at 26 Broadway, ¡New York city.

.Upon affidavits dated ¡November 28, 1900, an esa parte order was entered extending defendant’s time to answer, demur or move in relation to the complaint, which order was incorporated in an order to show, cause why the summons and complaint should not be set aside and the action he dismissed upon the ground that they had not been properly served. These affidavits were used upon a motion to vacate the service and dismiss the aption, and they state that the defendant corporation has no property within the State of ¡New York, and since May 1, 1900, had had no office and done no business here; that the alleged cause of action arose, if at all, within the State of Florida; that Robert Parsons, on whom the papers were served, although at that time the defendant’s second vice-president, has never been a director of the defendant company nor had any authority or functions like that of .president, secretary, treasurer,

p. 567

cashier or managing agent, and his powers are only such as are performed within the State of Florida under the express, direction of the defendant’s president or vice-president; that he has only desk room in the office of Henry M. Flagler at 26 Broadway, and is there associated with the latter individually, and that the defendant has never filed with the Secretary of State any designation as prescribed in section 432 of the Code of Civil Procedure. The opposing affidavit of plaintiff’s counsel avers that Robert Parsons is the second vice-president of the defendant corporation, and Henry M. Flagler referred to is director and president thereof.

Pending the determination of the motion to set aside the service of the summons and complaint and dismiss the action, an order was entered extending the defendant’s time and directing a reference to take proof concerning the actual relation of Robert Parsons to the defendant, and “ in the event that at the time of the service he occupied any of the positions mentioned in subdivision 3 of section 432 of the Code of Civil Procedure, whether the defendant then had property within the State,” and that the “ referee report the testimony taken before him together with his opinion thereupon.”

From that part of the order which so directs a reference the defendant appeals.

Lyman A. Spalding, for the appellant.

Max Altmayer, for the respondent.

Upon a motion where the facts are undisputed we can find no warrant for the court’s sending the matter to a referee to take further proof. Such a practice would entail additional expense and delay, and where both sides have had full opportunity to present all the facts it is usually unnecessary to have a reference. If essential the court could have allowed or directed additional affidavits to be served by either party. It is only in a very unusual and exceptional case that a reference should be ordered to aid the court in deciding a motion.

The principal question here presented was whether the person on whom service was made was the managing agent of the defendant. That the defendant had no property in the State was not disputed

p. 568

The facts bearing upon this principal question were fully presented, ■and it was the duty of 'the court on the affidavits to decide the motion.

The order is accordingly reversed, with ten dollars costs and disbursements to appellant to abide the event, and the proceeding remitted to the Special Term for decision.

Present—Van Brunt, P. J., Rumsey, Patterson, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements to appellant to abide event, and proceedings remitted to Special Term for decision. •