Baker v. New York Central Railroad

258 A.D. 854, 16 N.Y.S.2d 78

Opinion

Order affirmed, with ten dollars costs and disbursements. Memorandum: The person upon whom service of the summons was made was none of the persons mentioned in subdivision 8 of section 228 of the Civil Practice Act upon whom service on a corporation may be made. He was not a clerk to the corporation. The word “ clerk ” as used in the foregoing section “ must mean some general officer of the corporation, and not any person who happens to hold a clerical position with it.” (Erie R. R. Co. v. Van Allen, 76 N. J. Law, 119, 121; 69 A. 484; Carroll v. N. Y., N. H. & Hartford R. R. Co., 65 N. J. Law, 124; 46 A. 708; Chambers Bros. & Co. v. King Wrought Iron Bridge Manufactory, 16 Kan. 270, 276.) No jurisdiction was acquired by the attempted service (Winslow v. Staten Island R. T. R. R. Co., 51 Hun, 298, 300), and the service was void. (Kramer v. Buffalo Union Furnace Co., 132 App. Div. 415, 416; appeal dismissed, 196 N. Y. 532.) “But the validity of the service does not depend upon what is done with the summons after the service is made.” (Beck v. North P. & P. Co., 159 App. Div. 418, 420.) The service was ineffectual for any purpose. (Eisenhofer v. New Yorker Zeitung Pub. Co., 91 App. Div. 94.) Service of the summons was properly vacated. All concur. (The order vacates an attempted service of the summons.) Present —■ Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.