Hyperlawhypertext legal database Brayton v. New York, Lake Erie & Western Railroad 54 N.Y. St. Rep. 763

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Brayton v. New York, Lake Erie & Western Railroad

54 N.Y. St. Rep. 763 Court N.Y. Gen. Term Decision date 1893-10-20 English

Delivered by Dwight, P. J.

Contents

Majority

p. 763
Anna Brayton, Adm’rx, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
(Supreme Court, General Term, Fifth Department,
Filed October 20, 1893.)

Headnote

Service—Railroad—Managing agent.
The division superintendent of a large and important division of a railroad, remote from the general offices of the company, is a managing agent of the company within the meaning of the statute, and service on him is sufficient.
p. 764
Appeal by the defendant from an order of the Erie special term, denying its motion to set aside the service of the summons herein.
A. D. Scott, for app’lt; Wm. H. Clark, for resp’t.

The service of a summons in an action brought in Erie county for the death of the plaintiff’s intestate was made upon the division superintendent of the defendant at Buffalo, his-division having as termini the cities of Buffalo, Jamestown and Hornellsville. The objection made to the service is that the person served was not a “managing agent” of the defendant within the meaning of the statute. Code of Civ. Pro., § 431, subd. 3. We think the objection is not well taken.

It will be observed that the requirement is not that the service-shall be made upon the managing agent, but only upon a mam aging agent of the defendant. That the division superintendent, of a large and important division of the company’s road, remote from the general offices of the company, is such we can have no-doubt.

rIn the case of Palmer v. Penn. Co., 35 Hun, 370 ; aff’d 99 N. Y., 679 , it was held that “the statute is satisfied if he (the person served) be a managing agent to any extent.” In Ruland v. Canfield Pub. Co., 18 Civ. Pro., 282, a managing agent was defined to be “a person having independent, discretionary control in the locality where his duties are performed.” In Barrett v. Am. Tel. Company, 31 St. Rep., 465 , it was held that “if he (theperson served) sustain 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.”

Under the application of either of these tests, it is plain, we-think, that the statute was satisfied in the service in question ; and in the case of Roch., H. & L. R. R. Co. v. The N. Y., L. E. & W. R. R. Co., 15 St. Rep., 686 , we held that a division superintendent was for the purposes of that action a managing agent within the meaning of the statute, and that service upon him was sufficient.

The motion to set aside the service in this case must be denied, and the order appealed from affirmed.

Order appealed from affirmed, with costs.

Lewis and Haight, JJ., concur.