W. B. Kellogg & Co. v. Barrett

136 Misc. 275, 240 N.Y.S. 824, 1930 N.Y. Misc. LEXIS 1144

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 20, 1930
• Status: Published

Opinion

Per Curiam.

The service in Kentucky appears to have been on an actual agent as distinguished from a statutory one almost a year after the defendant ceased doing business in that State. A statutory agent may be presumed to continue as such until his successor is appointed or the business done in the State is wound up. (American Ry. Express v. Royster Guano Co., 273 U. S. 274; Guerin Mills v. Barrett, 228 App. Div. 609.) But an actual agent’s right to represent his principal to the extent of receiving service of process would depend on the continuance of his employment. The proof in the present case while not as clear as it might be was sufficient to show that defendant had ceased all business in the State and, therefore, had no agent representing it therein.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Lydon, Callahan and Peters, JJ.