I am not satisfied that Yan Wart, upon whom the summons in this cause was served, ever was the “managing agent” of the defendants, within the meaning of § 134 of the Code of Procedure. Still less, that he was such “managing agent” after he had resigned his agency, although he consented to act as agent “to settle thevr business in New York.” But his relation to the company, and the extent of his agency and powers, are so imperfectly disclosed by the affidavits—and the affidavits of Yan Wart himself, upon which the motion was founded, are so thoroughly impeached by his own counter affidavit, that I think the court at special term very properly refused to set aside the judgment, upon the single ground specified in the order to show cause. The defendants were, I think, properly required to establish the irregularity more clearly, ■especially when it is obviously within thei/r power to show what was the precise nature and extent of Yan Wart’s agency for them in this city. An opportunity was given to the deféndahts to do this, by renewing their motion, if so advised. And I think the order should be affirmed, with $10 costs.
Order affirmed accordingly.