Vitolo v. Bee Publishing Co.

66 A.D. 582, 73 N.Y.S. 273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1901
• Status: Published

Opinions

Hatch, J.:

The action was brought to recover damages for an alleged libel, published in the State of Ohio, where the defendant’s paper is printed, and in the State of New York by the-sale of the paper containing the article here.

The defendant is a foreign corporation, organized under the laws of the State of Ohio, and engaged in the publication of a newspaper styled The Toledo Bee, and having its chief office and place of business in the city of Toledo in that State.

The attempted service of summons upon the defendant consisted in the delivery of a copy of the summons and complaint to one Henry Bright at his office in the Tribune Building, in New York •city, where he conducted a newspaper advertising agency, and in the course of his business solicits advertisements for a number of newspapers, one of which is the defendant. It is claimed by the plaintiff and denied by the defendant that said Henry Bright was, at the time of the service, a managing agent of the defendant, and that, therefore, service upon him as such agent was sufficient to confer jurisdiction upon the court. After the service the defendant appeared specially for that purpose and made this motion to set aside the attempted service, which was denied, and from the order •denying the motion this appeal is brought.

It is prescribed in section 432 of the Code of Civil Procedure that “ Personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within the State, as follows :

“ 1. To the president, treasurer or secretary, or, if the corporation lacks either of those officers, to the officer performing corresponding functions under another name.

“ 2. To a pérson designated for the purpose by a writing under the seal of the corporation * * * and tiled in the office of the Secretary of State, * * *

“ 3. If such a designation is not in force, or if neither the person designated nor an officer specified in subdivision first of this section can be found with due diligence and the corporation has property within the State, or the -cause of action arose therein, to the cashier,, a director or a managing agent of the.corporation within the State.”

It is under the ,3d subdivision of the section that the respondent, seeks to sustain the service made herein, claiming that Bright was a. managing agent of the. corporation". It is contended by the defendant* first, that the person Upon whom the attempted., service was. made herein was not'a “ managing agent” of the company within the meaning of the statute; and, second, that if he were, the service was a nullity because the plaintiff failed to show that he had complied with the requirements of the section, which, it Urges* are. conditions precedent:to acquiring jurisdiction by such service, viz., that .the designation mentioned in subdivision. 2 of section 432 of the Code is not in force, or that neither the person- designated nor-an officer specified in subdivision 1st could be found with due diligence, and that the corporation has property within the State or the-cause of action arose therein. It is not pretended that Hr. Bright-is one of the officers mentioned in the 1st subdivision of the section,., nor is it attempted to be shown, either that there was no designation in force under subdivision 2, or that, if one was in force, neither the person designated nor an officer specified in subdivision 1 could be found with due diligence, and the corporation has property within the State or the cause of action arose therein. The plaintiff rests-upon the proposition that if lie has sufficiently shown that Bright was-the managing agent of the defendant the court acquired jurisdiction.

Assuming for the moment that he is right in this contention, we-, think that he fails in the sufficiency of his proof to support the same. The evidence upon which he relies is found in the circumstance that Bright had printed upon the door of his office the Toledo Bee, and that he kept therein files of the defendant’s newspaper and sold a, copy of the same to the plaintiff’s attorney,- and upon the occasion of the sale, in answer- to the question as to whether he was the managing agent, said, “ yes, I am its advertising manager.” It is further claimed that support is given to the foregoing facts by a declaration contained in a letter written by the defendant to one Urban, presumably a person acting in the interest of the plaintiff. The letter which Urban wrote asked the defendant if they had any agent in this State authorized to make contracts for advertising in its paper for the western trade. The declaration of the defendant was contained in the answer to this letter, in which the defendant acknowledged the receipt of the letter inquiring whether it had an advertising agent in the east, and stating “ Our representative in the foreign field is Hr. Henry Bright, Tribune Building, New York City, who will be glad to do business with you.” It is settled by authority that the declarations of the person claimed to be the managing agent are not sufficient to establish such fact, and that proof which shows only that the claimed managing agent is a representative of the defendant for some purpose, is not sufficient upon which to predicate the fact that 'he is a managing agent within the meaning of the section of the Code authorizing service to be made upon him. (Coler v. Pittsburgh Bridge Company, 146 N. Y. 281.) ‘

Taking all the proof together, it is clearly'apparent that it only established that Bright was the representative of the defendant for a particular purpose, viz., in securing for it contracts for advertising. The declaration of the defendant in its letter, when fairly construed,, is nothing more than a statement that Bright was its representative in respect of its advertising business, and the declaration of Bright is that he was its advertising manager. The presence of files of the paper in the office and the name upon the door are entirely consistent with such limited representation, and the whole falls short of proof sufficient to establish that Bright was the managing agent of the defendant’s business in this jurisdiction. It seems clear, therefore, that the plaintiff must fail in his contention that it was established that Bright was managing agent within the provision of the Code and the authority construing it. Aside from this question, however, we think the proof insufficient to show that the court acquired jurisdiction of the defendant by the attempted service. As already appears, under subdivision 3 of section 432 of the Code of Civil Procedure, service is not authorized upon a managing agent unless there is a failure to designate a person upon whom service can be made, or there be neither of the officers specified in subdivision 1 of the section who can, by the exercise of due diligence, be found within the State, and the corporation has property within the . State, or the cause of action arose therein. It is a condition precedent to a valid service upon a managing agent that the proofs show these facts and that due diligence has been used to find the persons specified without success, as it is only upon such proof that service upon the agent is authorized. The language of this provision of the Code is in all respects similar as to the proof of diligence required to that of subdivision 3 of section 438 of the Code relating to the service of a summons by publication, and it is the settled rulé that in order to authorize the service of a summons by publication proof of due diligence to serve the summons within the State is required . in order to confer jurisdiction upon the court to make the order. (Bixby v. Smith, 3 Hun, 60 ; Carleton v. Caleton, 85 N. Y. .313.)

The same reasons which require proof of diligence to authorize an order of publication apply with equal force to the service upon a managing agent, in the case of a foreign corporation, as it- is only another form of substituted service and requires due diligence to . discover the officers mentioned or the person designated, if any,. who must be served if present within the jurisdiction. Failure in this respect is as fatal to the service of a summons upon an agent as it is to the order of publication.

Counsel for the plaintiff, however, insists that this court has decided otherwise in Perrine v. Ransom Gas Machine Co,. (60 App. Div. 32). There is much support for this contention found in the language used in the opinion deciding that case, but it clearly appears from the opinion and the record in the case that there was a statement that no officer or other manager of the defendant corporation was present in the State at the time of the service of the summons, and this, coupled with the fact that the defendant, upon motion to vacate the service, admitted the truth of this statement, was held sufficient to confer jurisdiction. The motion in that case was rested solely upon the ground that the person served was not the managing agent of the defendant. No claim was made that the proof was not sufficient to confer jurisdiction if the person served was in fact a managing agent. It is clear, therefore, that the present question was not raised on the motion in that case and it was disposed of upon n consideration of whether the papers were sufficient to show that the person served was the managing agent. What was said by the •court in respect of the present question must be regarded as- obiter, •and is, therefore, not controlling as an authority upon us.

The proof of the service of the summons in the present case is ■entirely defective. There is, in fact, no affidavit of service such as is required by the statute and rules of practice. There is an affidavit made by the plaintiff’s attorney to the effect that he called upon the person served and after obtaining admission from him that he was the advertising manager, states: “ I then served him with the summons and complaint and stated the nature of same to" him.” There is no statement that he delivered a copy of the summons and complaint at such time, and this seems to be required by section 426 of the Code, and it must be proved by the affidavit of the person making the service. (Code Civ. Proc. § 434; Rule 18, Gen. Rules of Practice.) There is not a single statement to show that at the' time when this summons and complaint was served upon Bright there was not. then within the jurisdiction of the court all of the officers of the corporation upon whom service is authorized to be made, nor is there a syllable of proof showing or tending to show that the plaintiff made any effort to serve such officers, or that he. made efforts to find them within the jurisdiction, or that he took any step from which it might be inferred that diligence to discover •such officers had been used. It sufficiently appears that the cajuse •of action arose within the State, because the alleged libelous article was circulated here by sale of the defendant’s paper.

It seems clear, therefore, that there is no proof showing the proper or legal service of this summons upon the defendant. We -conclude, therefore, that the attempted service of the summons was void; that the-court acquired no jurisdiction of the defendant, and that the motion to vacate and set aside the service should have been granted.

It follows that the order should be reversed, with ten dollars costs ■and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham and O’Brien, JJ., dissented. .