First National Bank of Albany v. General Construction Co.

Woodward, J. (dissenting):

In this action, brought by the First National Bank of Albany, N. Y., against the General Construction Company, a corporation of the State of Connecticut, the plaintiff attempted to get jurisdiction of the foreign corporation by serving its summons and complaint upon one Vincent Aderente as attorney for the General Construction Company, as appears *747from the affidavit of B. Jermain Savage, read in opposition to the motion to set aside such service. This affidavit asserts in general language that “ since November 25, 1911, said Vincent Aderente has purported to represent the General Construction Company, having opened an account in its name at said First National Bank, and having executed notes in its name,” etc., and that deponent had good reason to believe that said Aderente represents said General Construction Company and could receive the service of the summons and complaint,” and further that “ deponent therefore had good ground to suppose that said Vincent Aderente actually represented said General Construction .Company for the purpose of such service,” etc.

The affidavits in support of the motion to set aside this service made by Aderente and by John C. Wait show that Aderente never was an officer or agent of the General Construction Company; that his only relations with said corporation were as assignee of the contract existing between the General Construction Company and the State of New York, and upon this appeal there is no contention that Aderente was an officer of the corporation; but it is sought to sustain the service upon the theory that he was the managing agent of the General Construction Company within the State of New York. We have already seen that the attempted service was upon Vincent Aderente as attorney for the General Construction Company,” and just how an attorney is to be transformed into a managing agent of the corporation, upon the facts set forth in such affidavit, we are at a loss to understand. It is true it is shown that Aderente made and negotiated certain notes at the First National Bank in the name of the General Construction Company, signing himself as attorney; but it is shown by the moving papers that under the assignment of the contract to Aderente he was given power of attorney to deal with the matters involved in the assignment, and this clearly would not constitute him a managing agent of the corporation within the meaning of that term as used in subdivision 3 of section 432 of the Code of Civil Procedure

If, however, we should assume that the facts could be gathered from the opinions of the deponent which would *748make Aderente the managing agent of the General Construction Company, there is still a fatal defect in the opposing affidavits. Section 432 of the Code of Civil Procedure provides 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: * * * 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 must be shown, not only that there has been no designation of a person on whom service may be made, but that none of the general officers named in subdivision 1 of section 432 can with due diligence be found; that the corporation has property within the State, or that the cause of action arose in this State. These are conditions precedent, which must be shown in order to justify service upon a managing agent (Vitolo v. Bee Pub. Co., 66 App. Div. 582; Doherty v. Evening Journal Association, 98 id. 136; Willcox v. Philadelphia Casualty Co., 136 id. 626, 628; Birkenwald v. May Co., 179 id. 658); and while the affidavit of Mr. Savage shows that there had been no designation of a representative in this State on whom process might be served, there is nothing to indicate that the general officers of the General Construction Company were not within the reach of process; no effort whatever is made to show that they could not, with due diligence, be found and served. The complaint being among the moving papers, it may be that it was unnecessary to show that the cause of action arose in this State, or that the corporation has property here; this may be gathered from the complaint; but when it is sought to sustain a service of a summons upon a managing agent it is necessary to show that due diligence has failed to discover any of the general officers or a designated person who might be served. The papers on appeal fail to disclose any effort whatever to find the general officers of the corporation within this State; the affidavit opposing the motion merely claims that it was attempted to be served upon Aderente as the attorney of the corporation, and all the authorities hold *749that a managing agent is something more than a mere special representative. A managing agent must be some person invested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it.” (Taylor v. G. S. P. Association, 136 N. Y. 343, 346, and authorities there cited; Coler v. P. B. Co., 146 id. 281, 283.)

The plaintiff has not shown any facts from which it may be determined that Aderente had any authority whatever from the General Construction Company, except such as is shown by the assignment made back in the year 1911, and which in no sense constituted him, an agent of that corporation — certainly not a managing agent as that term is understood in the law of this State. No service upon a managing agent could be valid except within the terms.of the statute, and this requires due diligence to discover proper officers or appointees who may be served before a managing agent can be reached with process which will bind a foreign corporation. It may be that the appellant would have been safe to rely upon the law and to have ignored the service, raising the question when an attempt was made to take advantage of it, but the better practice, no doubt, is to move to set aside the service, and the motion should have been granted.

The order appealed from should be reversed, with costs, and the motion to set aside the service should be granted, with costs.

Cochrane, J., concurred.

Order affirmed, with ten dollars costs and disbursements.