Barrett v. American Telephone & Telegraph Co. — 31 N.Y. St. Rep. 465

Majority

p. 465

Clarissa J. Barrett, Resp’t, v. The American Telephone & Telegraph Co., App'lt.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

1. Service—Corporations—Code Civ. Pro., § 431.

If the person served sustains sufficient character and rank to r ender it reasonably certain that the corporation will be apprised of the service, the requirement of the statute is answered.

2. Same.

Service upon the general superintendent of a telephone company is sufficient.

Appeal from order denying motion to set aside the service of the summons herein.

Melville Egleston, for app’lt; W. B. Yeomans, for resp'fc

The defendant in this action is a domestic corporation, and the action was commenced by the personal service ■of the summons on the general superintendent of the company.

Thereupon a motion was made to set aside the same because it was not in accordance with the provisions of the Code of Civil Procedure, prescribing the manner of service upon a domestic corporation. That motion was denied and the defendant has appealed from the order of denial.

The provision of the Code respecting the service of process to which the defendant appeals is this: “ Personal service of the -summons upon a defendant being a domestic corporation must be made by delivering a copy thereof within the state * * * - to 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. Code Civil Procedure, § 431.

While this section should be reasonably construed like all other laws, yet it should not receive a construction which would place unnecessary obstructions in the way of commencing actions against corporations.

Those intangible bodies must always act through agents, and they must also necessarily be reached through officers or agents. Service of process must be made upon some person, and the object of the legislature was to provide for such service upon an -officer or agent of the company who should be charged with some

p. 466

general duty, and have some general control of the affairs of the corporation ■ one who should occupy a position of responsibility and have an interest in the general management and prosperity of the company. The whole end and aim being to have the process placed in the hands of a responsible person who would yield attention to the same so that the company might suffer no default, and sustain no injury.

It is not essential to the satisfaction of the statute .that the person served should have the entire charge or control of the corporation or of its business.

If he sustains sufficient character and rank to render it reasonably certain that the corporation will be apprised of the service the requirement of the statute is answered.

In this case the service was made personally upon the general superintendent of the company, an officer having the general charge of one of the departments of the corporation, the same as the treasurer has the general charge of his department and the secretary has the general charge of another.

The service so made was as certain to come to the knowledge of the corporation as if made upon the secretary or treasurer, and service upon either of those officers would have been valid beyond doubt.

The powers of the person served in this case were broader and more general than those of the person served in the case of Palmer v. Pennsylvania Company, 35 Hun, 370 , and we held the service sufficient in that case, and our decision was sustained by the court of appeals. 99 N. Y., 679 .

In the case of Rochester, etc., R. R. Co., 48 Hun, 190 ; 15 N. Y. State Rep., 686, service of process upon a division superintendent was held sufficient.

We deem the service in this case sufficient upon principle and authority, and the order should be affirmed, with costs and disbursements.

Barnard, P. J., and Pratt, J., concur.