McCoy v. Erie Forge & Steel Co.

Greenbaum, J.:

The defendant, Erie Forge Company, a foreign corporation appearing specially, moved to vacate an attachment granted on November 5,1921, and to vacate the service upon it of the summons and complaint, for the reason that no valid service was made within thirty days after the attachment was granted, as required by section 905 of the Civil Practice Act.

The service of the summons and complaint was made without the State of New York, on December 3, 1921, by delivering the papers to Robert F. Devine, Jr., its “ director, assistant to the president and the managing agent.”

No attack is made on the attachment papers or on the order allowing service by publication without the State. The order for publication of the summons provided that in lieu of publication, service could be made without the State upon such officers of said defendant, Erie Forge Company, as are specified in section 229 of the Civil Practice Act.”

The provision in the order of publication that service may be made upon such officers of defendant as are specified in section 229 of the Civil Practice Act was unwarranted and palpably a mistake, since that section refers to the service of a foreign corporation within this State. Moreover, there appears to be no provision in the Civil Practice Act and there was none in the Code of Civil Procedure, or in the rules, which required the court to direct the manner of service of a foreign corporation without the State and there appears to be no statute or rule which specially prescribes the mode of service of a foreign corporation without the State. It is also to be noted that under section 228 of the Civil Practice Act a domestic corporation may be served in this State by delivery of the summons to its president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer or a director or managing agent,” whereas under section 229, service of a foreign corporation within this State may be made upon its “ president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary,” thus making no mention of service upon a director or managing agent.” Section 233 of the Civil Practice *572Act provides: In all cases when publication of the summons is ordered, service of the copy of the summons and complaint and of any accompanying notice required by rules by the delivery thereof to the defendant personally without the State is equivalent to notice by publication and deposit in the post-office.”

It may thus be fairly inferred that a service made pursuant to the requirements specified in section 228 in the case of a domestic corporation within this State would be a good service of a foreign corporation without the State. The inadvertent reference to section 229 in the order was clearly an error which under the salutary provisions of section 105 of the Civil Practice Act may be disregarded.

In the instant case service was made upon one who was both a director and managing agent of the Erie Forge Company, and since a service upon either a director or managing agent of a domestic corporation in this State would be good, it seems to follow that we must uphold the service as properly made.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dowling, Smith and Merrell, JJ., concur; Laughlin, dissents.