Opinion
July 6, 1961
Order, entered on February 14, 1961, confirming the reports of the Official Referee dated May 23, 1960 and November 9, 1960, reversed, on the law and on the facts, with $20 costs and disbursements to defendant-appellant. The motion to confirm said reports is denied, the cross motion to disaffirm them is granted and the motion of defendant-appellant to vacate and set aside service of the summons is granted. Assuming Brahm Edwards, Inc., was the managing agent for defendant-appellant, there is no competent evidence that the process was served on an employee of the managing agent, or that such person was an authorized or proper person to receive service of process. (Civ. Prac. Act, § 229; Taylor v. Granite State Provident Assn., 136 N.Y. 343, 346.)
I dissent and would affirm the sustaining of service of process. Assuming that defendant-appellant was amenable to the service of process in this State by virtue of its activities here, and that Brahm Edwards, Inc., was a "managing agent" within the meaning of section 229 of the Civil Practice Act upon whom service could be made, the only question remaining is whether the proof demonstrated that the person served with process was an authorized or proper person to receive service of process on behalf of Brahm Edwards, Inc. Unquestionably, someone in the office of Brahm Edwards, Inc., was served with process for it appears that the summons and complaint were forwarded by Mr. Brahm to defendant. Mr. Brahm, who testified before the Referee, did not identify the person who was served although the office organization was comparatively small. In my opinion, plaintiff made out a prima facie case of proper service and it was incumbent on defendant to come forward with the evidence — clearly in its sole possession — to show that the person served was not qualified to receive service. Since defendant, through its witness Mr. Brahm, did not produce such evidence, the Referee properly found there was adequate service here.