Opinion
July 9, 1934.
Milton Appelbaum, for the plaintiff.
Joseph Greenhill [ Joseph Greenhill and Simon Greenhill of counsel], for the defendant.
Defendant, a foreign corporation, moves to set aside service of a summons in this action. It is not controverted but that the paper in question was served upon the "loss clerk" of Reid Co., local agents for defendant corporation. It is not sufficient that following such service in some other action defendant saw fit to appear therein. Such could not constitute any waiver of proper legalized service herein. It is also conceded that defendant had heretofore duly designated the Superintendent of Insurance of the State of New York to accept process on its behalf. Section 229 of the Civil Practice Act applies. It comprises three classes of persons upon whom service of summons on a foreign corporation may be made. The first includes its officers, from the president down to assistant secretary. The second, a designated person, as the Secretary of State, or Superintendent of Insurance or Superintendent of Banks. The third, a cashier, director or managing agent.
In this case it is sought to justify service upon a loss clerk of a local insurance agency under the theory of a managing agent. Even assuming, which I do not grant, that such loss clerk might be classified as "a managing agent," yet under the statute service upon such an agent is not effective unless and until it be established that service upon one of the two preceding named classes cannot be effected. (Civ. Prac. Act, § 229, subd. 3.) In the instant motion it is neither averred nor claimed any attempt at service under subdivisions 1 or 2 was ever even attempted. (See McKeon v. McGowan Sons, 229 A.D. 568; Seldin v. Caledonian Insurance Co., 121 Misc. 444; Taplinger Co. v. Ward Co., 114 id. 115; Malkin Lumber Corp. v. Nat. Ben Franklin Fire Ins. Co., N.Y.L.J. Feb. 17, 1925, decision by Mr. Justice LAZANSKY.)
The motion is granted, with ten dollars costs. Submit order. Plaintiff's attorney will get exhibits at office of my secretary.