Wheeler v. Dr. Salsbury's Laboratories

255 A.D. 744, 6 N.Y.S.2d 933, 1938 N.Y. App. Div. LEXIS 4982

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1938
• Status: Published

Opinion

— Appeal by plaintiff from an order vacating the service of the summons and complaint, which was made upon one Eddy upon the theory that he was the “ managing agent ” of defendant, which is a corporation with its principal place of business at Charles City, Iowa. It has a warehouse and office at Harrisburg, Pa. Eddy was a salesman who took orders for merchandise to be shipped some from Charles City, Iowa, and some from Harrisburg, Pa., to customers whom he contracted. Eddy’s managerial agency is predicated by appellant from the fact that as it is alleged he at times varied the prices from those quoted in the price list, and collected accounts due plaintiff. These acts are those usually performed by selling agents and do not involve managerial duties as indicated in section 229 of the Civil Practice Act. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, MeNamee, Bliss and Heffeman, JJ.