Klopsch v. Atlas Const. Co. — 117 N.Y.S. 805

Majority

p. 805

KLOPSCH et al. v. ATLAS CONST. CO.

(Supreme Court, Appellate Term.

June 25, 1909.)

Headnote

Coepoeations (§ 507^[1] )—Actions—Process—Persons Served.

Service of process in an action against a corporation on a person who had been president, treasurer, and director of the corporation, but who had resigned those positions some three months before service of process, and to whom a successor had been elected, does not constitute sufficient service on the corporation.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1989; Dec. Dig. § 507.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

p. 806

Action by Paul Klopsch and another against the Atlas Construction Company. From a judgment for plaintiffs, defendant appeals.

Reversed.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Bond & Babson (Walter H. Bond, of counsel), for appellant.

Charles Green Smith, for respondents.

At the time of the service of the summons and complaint on or about April 6, 1909, the person served informed the server that he was not, and for some time had not been, an officer of the defendant corporation, and the evidence discloses that said person had resigned as president, treasurer, and director on January 5,1909, at a meeting of the board of directors, and that a successor was elected. This may not be said to have been contradicted by "hearsay admission of such person, later in January, that he was the president of the defendant, which, appearing specially by counsel for the purpose of traversing the return, was entitled to prevail. This is not the forum for discussing whether the statutory method for effecting service upon corporations may be converted into an instrument by which a corporation may evade its creditor.

Judgment reversed, with costs to the appellant. All concur.