Tuchband v. Chicago & A. Railroad — 5 N.Y.S. 493

Majority

p. 493

Tuchband v. Chicago & A. R. Co.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. Foreign Corporations—Service op Process—“Managing Agent. ”

On the time-tables of defendant, the C. & A. R. Co., a foreign corporation, was printed, “O., General Agent, Passenger Department, 261 Broadway. ” On the windows at 261 Broadway was displayed, “ O. & A. R. Co., Office, ” also, “ Freight & Passenger Agency of the C. & A. R. Co. ” O. made affidavit that he was not defendant’s managing agent, but only in charge of the passenger department, and that defendant had another agent in the state in charge of the freight department. Held, that O. was “managing agent, ” within Code Civil Proa. N. Y. | 432, providing for serving process on foreign corporations.

2. Same—Property within State—Evidence.

Plaintiff's affidavit alleged that defendant had a large business in the state of New York; that at the time of the service of the summons and complaint it bad its office in New York city; that it owned the furniture of the office; and that it also had cars in the state. The answering affidavit alleged that the office was hired by the freight department; that the passenger agency of which affiant, who had been served with process, was in charge, and which had nothing to do with the freight department, occupied any a small portion of the office. There was no allegation that defendant did not own the furniture, or that it was not liable for the rent of the office. Held an admission that defendant owned property in the state.

3. Special Appearance—Notice op Appeal.

An attorney who appears only for the purpose of a motion remains the attorney sufficient to receive notice of appeal.

Appeal from special term, New York county.

Action by Julius Tuchband against the Chicago & Alton Railroad Company, a foreign corporation having its principal office in the state of Illinois. Defendant not having designated any one within the state on whom process, could be served, the summons in this action was served on Charles Oberg as managing agent. Oberg made affidavit that he was not defendant’s managing agent, but only in charge of the passenger department of the company within the state, and that the company had another agent within the state who was in charge of the freight department. Defendant’s time-tables contained the following: “ Charles Oberg, General Agent, Passenger Department, 261 Broadway, New York. ” On the windows of defendant’s office at 261 Broadway appeared, “Chicago & Alton Railroad Company, Office;” also, “Freight and Passenger Agency of the Chicago and Alton Railroad Co. ” The name also appeared on the various rooms in the building occupied by defendant. Defendant moved to set aside the service of process on the ground that the person served was not the managing agent of defendant, and that defendant had no. property in the state. The motion was granted, and plaintiff appeals.

In granting the motion, Mr. Justice O’Brien delivered the following opinion: “ Where it is sought to obtain jurisdiction in an action against a foreign corporation by service on a managing agent, it must appear, not only that the-person served was such managing agent, but that the corporation has property within the state, or the cause of action arose therein. Code Civil Proc. § 432, subd. 3. This cause of action did not arise in this state. To maintain it, therefore, the two other requisites should be present, viz.-, that the person served was the managing agent, and that the corporation has property within the state. Applying the rule laid down in Palmer v. Pennsylvania Co., 35 Hun, 370 , and other cases referred to in plaintiff’s brief, to the facts here presented, it must be concluded that Oberg was a managing agent, within the meaning of that term as used in the Code. The other question, as to whether or not the defendant had property within the state sufficient to obtain jurisdiction on the facts, is a more difficult one. The plaintiff nowhere states that there was such property, but relies on the admission made in defendant’s morning papers, which is as follows: Defendant ‘ has no plant or capital within the state of New York, and has no property located or situated therein, * * * although it sometimes happens that some of its cars are-

p. 494

brought within the state, but not in the transaction of its own business within the state.’ From this admission it cannot be concluded that the company at the time of service had any of its property within the state. The mere facts that the company has had, or at various intervals hereafter may have, a fugi-' tive freight-car here, loaned to or brought by a company operating lines within the state, and remaining upon its territories for a short time, is not, in my opinion, sufficient to meet the spirit of the statutory requirement. As stated in Barnes v. Railroad Co., 12 Hun, 127 : ‘The Code does not require any specific amount to be found. But it certainly should be something from which the creditors may have some chance of benefit.’ For the reason, therefore, that it is not shown that the defendant now has, or at the time of service had, any property within the state, the motion to set aside the service of the summons should be granted.”

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Henry Schmitt, for appellant. L. A. Could, for respondent.

This action ivas brought to recover for a cause of action arising in the state of Missouri. The defendant is a foreign corporation, and the service of the summons and complaint herein was made upon Mr. Charles Oberg, who is claimed to be the general agent of the said company in Hew York. A motion was made to set aside the service, upon the ground that the person served was neither the president, secretary, cashier, or director •of the company, and that the corporation had no property located within this state. The learned court granted the motion, and from the order thereupon ■entered this appeal is taken. It appears from the opinion rendered upon the •decision of the motion that the court was of the opinion that the person served was a managing agent, within the meaning of that term as used by the Code, but there was no evidence that the defendant had property within the state at the time of the service of the summons and complaint. The position in respect to the managing agent is clearly upheld by the decision in the case of Palmer v. Pennsylvania Co., 35 Hun, 370 , and it is not necessary to discuss further that proposition.

It is undoubtedly true that the papers must show that the defendant has some property within the state at the time of the service from which the creditors may have some chance of benefit. The allegation in the affidavit of the plaintiff is that the defendant has a large business in the city of Hew York, and has property within the state of Hew York, and, as affiant is informed .and believes, had property in the state of Hew York at the time of the service •of the summons and complaint; that it had at that date its offices in the city ■of Hew York, and owned the furniture of said office, and the tickets, and it .also had cars of the defendant’s road with! n the j urisdiction of the court.. The answering affidavits upon the part of the defendant, in support of its allegation that there was no property within this state, simply alleges that the office in which the business of the defendant is carried on is hired by the freight •department, and that the passenger agency which was under the charge of said Charles Oberg, and with which department the affiant had nothing to do, kept a small portion of said office, which was partitioned off for its use. There is no allegation in this affidavit that the defendant road is not the lessee, and liable for the rent. Heither is there any allegation that it does not own the furniture in said office. The mere statement that this office is hired by the freight department of the company shows upon its face that the defendant is the lessee, because it is liable for the contracts of each of its departments. This being the case, it is apparent that there is an admission upon this record that it does own the office furniture situated within this state, and that it is the lessee of this office, and that its business is there carried on. It would be a strange proposition that a foreign corporation may bring its property within this state, carry on business within this state, and enter into contracts within

p. 495

this state, and then, claim exemption from the laws of this state, upon the ground that it has not all its property within this state. We think it is clear from these affidavits that the defendant has property within this state from which the creditors may have some chance of benefit, and therefore the service was brought within the rule. The order should be reversed, with $10 costs and disbursements.

It is sufficient to say, with respect to the motion to dismiss the appeal, that such motion is absolutely frivolous. The result of the position of the defendant, if sustained, would be that, no matter how erroneous the decision of the court below might be, there could be no possible appeal from such order, because there was nobody upon whom to serve the notice of appeal. Where an attorney appears for the purposes of motion, he still remains the attorney sufficient to receive notice of appeal, and the corporation has so far, at least, submitted itself to the jurisdiction of the court. The motion should be denied, with $10 costs. All concur.