Winslow v. Staten Island Rapid Transit Co.

The summons in this case was attempted to be served by delivery of a copy thereof, to one Edward Curry, at the office of the defendant in the city of New York. The proof seems to indicate that the person served was the assistant treasurer of the defendant, although at the time of the service, when asked by the deputy •sheriff, he said he was the treasurer of the corporation.

A ccording to section 431 of the Code, personal service of a summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof within the state to the president or oth'er head of the corporation, to the secretary or clerk of the corporation, or to the cashier, treasurer, director, or managing agent.

The service of the summons was set aside upon the ground that Curry occupied neither of these positions.

It is urged, in the first place, upon this appeal, that as the treasurer was a non-resident, therefore, the assistant treasurer was the person named, or intended to be named, in the statute, and if Curry was not an assistant treasurer, then he came under the definition of a managing agent, and service upon him, therefore, conferred jurisdiction.

It is sought, also, to sustain the service by showing that Curry was a managing agent of the corporation. In this we think the proof wholly fails. It is true that Curry was engaged in and about the business of the corporation, and that in addition to his ordinary duties as clerk to the corporation, he was in the habit, as assistant treasurer, of drawing_checks payable to the order of another clerk of the corporation. But there is no evidence whatever that .he had ■ any part in the management of the business of the corporation, or that he exercised any authority as á managing agent.

Numerous cases have been cited upon the part of the appellant to sustain the proposition that he was at least a managing agent; and. our attention is particularly called to the case of Palmer v. Penn. Company ( 35 Hun, 369 , affirmed in 99 N. Y., 679 ). But the facts of that case differ very materially from those in the case at bar. The person served in that case was an agent of the company. He managed a certain part of the business of the corporation, and as such had authority to act for the corporation. In the case at bar there is no evidence that Curry had any such authority, or that the duties which he performed were anything more than of a clerical character.

It is true that language has been used in some of these cases to the effect that the object of all service of process for the commencement of a suit or other legal proceeding is to give notice to the party proceeded against and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. But where the statute prescribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with or jurisdiction cannot be acquired. If there are any hardships under the law, it is not for the courts tp amend the statute, because that is a duty which is imposed upon the legislature.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Brady, J., concurs.

(dissenting).—Edward Curry, who was the person upon whom the summons and complaint in this action was served, is shown to be what is called the “assistant treasurer” of the defendant. The person who was elected treasurer is not and never was a resident of

Under the by-laws of the defendant, it is true, there is no provision made for the appointment of any person as “assistant treasurer ” yet Mr. Curry was in fact and to all intents and purposes the treasurer of the defendant. Under section 431 of the Code of Civil Procedure it matters not what the title of the officer of a domestic corporation may he so long as he discharges the functions of the office contemplated by that section. A service upon the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer or a director or managing agent, is a service upon the corporation itself. It is no answer to the regularity of the service in this instance to say that Mr. Curry was not regularly elected or chosen by the corporation as its treasurer; performing all of the duties pertaining to the treasury department of this corporation, he must be deemed to be the treasurer within the intent and meaning of this section.

But even if this were not so, the word “clerk” is, in my judgment, the proper name, as used in this statute, to describe the person upon whom this service was made. He was not performing merely clerical duties in subordination to any other officer of the corporation, but was a “clerk to the corporation,” that is to say, he was performing for the defendant duties distinctively in its behalf and not in behalf of any officer of the corporation.

For these reasons, I think, the order should be reversed.