By section 1780 of the Code of Civil Procedure an action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action ; and'by section 432 of the Code it is provided that personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within this State when no- designation is in force, and when neither the president, treasurer nor secretary of the corporation can be found within this State, and the corporation has property in this State, or the cause of action arose therein, to the cashier, a director or managing agent of the defendant within the Sfate.
The summons and complaint having been made upon a person alleged to be a managing agent of the defendant corporation, to entitle the defendant to have such service set aside upon motion lie must show that the service was irregular. The defendant coming-into court and asking for affirmative relief, the burden is upon him to show that the service was made upon a person upon whom under the Code such service was not allowed. It will not do for a defendant to come in and ask for this affirmative relief' and insist that: the application should be granted unless the plaintiff affirmati vely shows in answer to his motion that the condition existed which made such a servicé proper. ■.(Perrine v. Ransom Gas Machine Co., 60 App. Div. 32.) If the service is made in violation of this provision of the Code, the defendant has only to allow the plaintiff to take judgment, and when attempts are made to enforce the judgment it must be shown that the service of process was regular; but where the defendant comes in and asks for affirmative relief, the burden is on him to-show that the service was not authorized. The fact, therefore, that the plaintiff fails to show in his answering affidavit that no designation of a person upon whom service of process against the defendant can be made was in force, or that no officer of the. company could be found within this State, is not a reason for granting the application. To entitle the defendant to such a.relief- he must show either that the person served was not a managing agent of the defendant ; that the cause of action did not arise within the State ; that the defendant has no property therein, or that one of the officers mentioned in subdivision 1 of the section could be found within the State.
*589The summons in this action was served upon one Henry Bright, who had an office for the transaction of business in the city of New York, and the motion to set aside the service of the summons was made upon Blight’s affidavit. Tiiat affidavit alleges-that he solicits advertising for a large number of newspapers at his office in the city of New York, and.among the number is the Bee Publishing Company; that this is the only connection of the defendant with said corporation of any kind whatsoever. In reply the plaintiff presented an affidavit setting out a letter that had been sent to the defendant at Toledo, Ohio, asking if the defendant had an agent in this State authorized to make contracts for advertising in their paper for western trade. In reply to this letter the defendant wrote as follows “We are in receipt of yours of the 15th inquiring whether we have an advertising agent in the East. Our representative in the foreign field is Mr. Henry Bright, Tribune Building, New York City, who will be glad to do business with you.”
The affidavit also states that subsequently Bright called upon the writer of the letter and stated that he was sole manager and advertising agent of the Toledo Bee, with full power to make contracts for advertising in the Toledo Bee in the name of the Bee Publishing Company. It also appeared that upon the door of the office occupied by Bright the name , of the defendant’s newspaper was painted, and that at about this same time a copy of the defendant’s paper was purchased at Bright’s office. Upon this evidence the court held that Bright was a managing agent of the defendant in this State.
In Coler v. Pittsburgh Bridge Company (146 N. Y. 283), in speaking of this section of the Code, it was said : “ It is not necessary that the office of the person to whom the summons is delivered in a suit against a foreign corporation should be precisely described as that of ‘ a managing agent,’ because, as we think, from the language of section 432 of the Code of Civil Procedure, it was intended that any person holding some responsible and representative relation to the company, such as the term ‘managing agent’ would include, might be served with the summons.”
It cannot be doubted but that if Bright had assumed to act as the agent of the defendant, making a contract for it, the defendant would have been bound, as having authorized Bright to represent it, *590and. it seems to me that a person with the authority conferred upon Bright by this letter is a managing agent within the meaning of this section of the Code.
I think, therefore, the evidence was sufficient to authorize the court below to find that Bright was the managing agent of the defendant and that the service upon him was regular.
O’Brien, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.