Glines v. Supreme Sitting Order of Iron Hall — 50 N.Y. St. Rep. 281

Majority

p. 281

Moses K. Glines, Resp't, v. The Supreme Sitting Order of Iron Hall, App'lt.

(Supreme Court, General Term, First Department,

Filed December 16, 1892.)

Headnote

1. Corporations—Receiver—Service.

Upon the hearing of a motion made to vacate an order appointing a temporary receiver of a foreign corporation, upon tile sole ground that the con it was without jurisdiction to grant it for the reason that no valid service had been made on the corporation, it appeared that the papers were served on the managing agent of the corporation, that none of its officers were within this state, and that it had failed to designate a person upon whom papers might be served. Held, that the motion was properly denied.

3. Same.

In such case it is not necessary for the affidavit of service to state how the affiant knew that the person served was the managing agent of the corporation.

Appeal from order denying a motion to vacate an order appointing a receiver of defendant’s property within the state.

Taylor L. Arms {Alfred Ely, of counsel), for app’lt;

Morse, Koones & Findlay {Howard H. Morse and George Norris, of counsel), for resp’t.

Upon the 26th day of August, 1892, an order was made at special term appointing a temporary receiver of the assets and property of the defendant within this state. A motion was subsequently made to vacate this order, upon the sole ground that the court was without jurisdiction to grant it, for the reason that the summons and complaint, together with the original order to show cause, had not been served upon the defendant according to law. The motion to vacate was denied upon the ground specified in the order of denial that the court had power to malee the order of August 26th, and to appoint a receiver of the property of the defendant, without notice to the defendant, and without first obtaining jurisdiction of the person of the corporation. It was unnecessary for the learned judge to specify in the order appealed from the ground upon which he denied the motion. It was sufficient that the motion was denied, and for good reasons.

p. 282

We need not consider the question as to whether the particular ground specified in the order was o£ itself sufficient to justify the denial of the motion; nor need we consider the argument on that head presented by the learned counsel upon this appeal. In saying this, we do not mean to intimate a doubt as to the correctness of the learned judge’s conclusion. It appears conclusively from the papers that the court bad jurisdiction of the defendant corporation at the time the order in question was made. That order was not made ex parte, but upon due notice to the defendant. The papers were served upon the managing agent of the defendant in this state, and it appeared that the defendant had no officer within this state upon whom those papers could have been served. It also appeared that the defendant had not made the designation of a person upon whom papers in an action might be served, as authorized by the second subdivision of § 482 of the Code of Civil Procedure. We think the affidavit of service which was before the court when the order appointing the receiver was made was itself quite sufficient.

It was not necessary for the affiant to state how he knew that the person named was the managing agent of the defendant, any more than it would have been, in case of service upon the president, treasurer, or secretary of the corporation, to disclose the affiant’s knowledge of the latter’s official position. Jurisdiction was certainly conferred by an affidavit stating that the service was made upon the managing agent, naming him as such. But, even if there were a defect of proof on that head, that was matter of evidence, not of fact, and did not go to the question of jurisdiction. We find, however, that the motion to vacate was resisted upon affidavits clearly furnishing ample evidence of the fact that the person upon whom the papers were served was the managing agent of the defendant. The question of 'jurisdiction did not depend upon the evidence as to the agency contained in the affidavit of service, but upon the fact that the person named was in truth the defendant’s managing agent. We also find that the motion to vacate was, as matter of fact, made without the authority of the defendant. The affidavits show that the only person who was really authorized to appear for the defendant was the attorney, Stewart, and he has interposed an answer, which completely concedes the jurisdiction. Ho question can be made upon this appeal with regard to the merits, or with regard to the equities of the complaint. The sole question is that of jurisdiction, and as it clearly appears that the plaintiff is a resident of this state, that the corporation has property within this state which this action seeks to preserve, and that the motion papers on the application for a receiver were duly served upon the corporation under the third subdivision of § 432 of the Code, we think the court had jurisdiction, and that the order denying the motion to vacate the order appointing the receiver should be affirmed, with costs.

Order accordingly affirmed, with costs.

Van Brunt, P. J., concurs. ■