Evans v. American Steel-Foundry Co. — 61 N.Y.S. 922

Majority

p. 922

EVANS v. AMERICAN STEED-FOUNDRY CO.

(City Court of New York, General Term.

December 29, 1899.)

Headnote

Foreign Corporations—Service op Summons.

Where no issue was raised, that any officer of the defendant, a foreign corporation, was within the state, service of summons upon one who was a managing agent, within the meaning of Code, '§ 432, providing for service ■ of summons upon a foreign corporation, was sufficient.

Appeal from special term.

Action by one Evans against the American Steel-Foundry Company. From an order refusing to set aside a service of summons, defendant appeals. Affirmed.

Argued before FITZSIMONS, C. J., and O’DWYER and HASCALL, JJ.

Henry A. Rubino, for appellant.

Benjamin J. Downer, for respondent.

Appeal from order of the special term refusing to set aside service of summons upon a foreign corporation. While it is true that the affidavit of Mr. Elliott does not set forth the facts so that the court may judicially determine whether due diligence. has been used to find and serve within the state an officer or director of the corporation, yet there is sufficient of material allegation in the positive averments of plaintiff’s affidavit to sustain the order, without resting upon the question of due diligence to serve any other than the agent of the corporation. It does appear that Mr. Bigelow is defendant’s managing agent, within the mean

p. 923

ing of section 432 of the Code, and no issue is raised by allegation •that any officer was, at the time of service, within the state.

Order affirmed, with $10 costs and disbursements of this appeal.

FITZSIMOM3, C. J., and O’DWYER, J., concur.