Clarke v. Trustee of Associated Gas & Electric Co.

New York Court of Appeals

Clarke v. Trustee of Associated Gas & Electric Co.

43 N.E.2d 808, 289 N.Y. 54, 1942 N.Y. LEXIS 980

DecidedJuly 29, 1942

StatusPublished

This text of 43 N.E.2d 808 (Clarke v. Trustee of Associated Gas & Electric Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarke v. Trustee of Associated Gas & Electric Co., 43 N.E.2d 808, 289 N.Y. 54, 1942 N.Y. LEXIS 980 (N.Y. 1942).

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Opinion

Per Curiam.

An assistant cashier is not one of the persons named in subdivision 8 of section 228 of the Civil Practice Act, upon whom a copy of a summons may be served. Nor is an assistant cashier, who is an officer of a national banking association, a “ managing agent,” within the meaning of the statute, unless he is vested with the broad powers of a managing agent. In this case the assistant cashier had no such powers.

The evidence is insufficient to show that the bank had authorized its assistant cashiers to receive service of process, though in some earlier cases to which this plaintiff was not a party the bank failed to challenge the jurisdiction of the court where the summons was delivered to an assistant cashier. Nor is there any evidence which would sustain a finding that the bank had given the assistant cashier to whom the summons was in this case delivered apparent authority to receive delivery of a summons, or that any representation, express or implied, was made by the bank upon which a finding of estoppel could be based.

For these reasons the motion to vacate the service of summons should have been granted.

The orders should be reversed with costs in all courts and the motion to vacate service of the summons granted. Question No. 1 should be answered in the negative, and question No. 4 in the affirmative. We do not answer questions Nos. 2 and 3. They are academic upon this record.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Orders reversed, etc.

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Per Curiam.

An assistant cashier is not one of the persons named in subdivision 8 of section 228 of the Civil Practice Act, upon whom a copy of a summons may be served. Nor is an assistant cashier, who is an officer of a national banking association, a “ managing agent,” within the meaning of the statute, unless he is vested with the broad powers of a managing agent. In this case the assistant cashier had no such powers.

The evidence is insufficient to show that the bank had authorized its assistant cashiers to receive service of process, though in some earlier cases to which this plaintiff was not a party the bank failed to challenge the jurisdiction of the court where the summons was delivered to an assistant cashier. Nor is there any evidence which would sustain a finding that the bank had given the assistant cashier to whom the summons was in this case delivered apparent authority to receive delivery of a summons, or that any representation, express or implied, was made by the bank upon which a finding of estoppel could be based.

For these reasons the motion to vacate the service of summons should have been granted.

The orders should be reversed with costs in all courts and the motion to vacate service of the summons granted. Question No. 1 should be answered in the negative, and question No. 4 in the affirmative. We do not answer questions Nos. 2 and 3. They are academic upon this record.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Orders reversed, etc.

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Bluebook (online)

43 N.E.2d 808, 289 N.Y. 54, 1942 N.Y. LEXIS 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-trustee-of-associated-gas-electric-co-ny-1942.