Ruland v. Canfield Publishing Co.

10 N.Y.S. 913, 18 N.Y. Civ. Proc. R. 282, 1889 N.Y. Misc. LEXIS 1832

Opinion

Holme, J.

I have examined the papers and the testimony taken before the referee in this case with great care, and do not see my way to come to any other conclusion than that the person served was not the “managing agent” of the defendant, within the meaning of the Code. The testimony shows that he was a mere clerk. The officers of the company were present at its place of business when Young was served, and the reasons assigned for not serving one of them seem to be insufficient. The testimony that Young’s duties were limited, and that he acted upon instructions received immediately from the company’s officers, is uncontradicted. He seems to have had no general control over the affairs of the corporation, and acted only at the company’s principal place for transacting business, where the officers of the company had their offices and personally attended to the business of the company. Ho matter how extensive Young’s duties might be, so long as they were performed under the eyes of the officers of the company, and pursuant to their instructions, and at the very place where the officers themselves were attending to the business of the corporation, he cannot be regarded as the “managing agent” of the company. I think the “managing agent” contemplated by the Code is a person having an independent discretionary control in the locality where his duties are performed, as was the case with the agent in Bain v. Insurance Co., 9 How. Pr. 448. For aught that appears in this case, Young’s duties were confined to routine details, the president and secretary being present to pass upon matters requiring the exercise of judgment and discretion. Brewster v. Railroad Co., 5 How. Pr. 183. Defendant did not represent Young to .be its managing agent. The testimony shows that the president had the management of its affairs at the place where Young was acting. Motion granted.