Opinion
December 9, 1924.
Herbert Goldmark, for the plaintiff.
Hardin Hess [ Harold B. Elgar of counsel], for the defendant.
This court has jurisdiction, under section 46 of the General Corporation Law, as added by chapter 916 of the Laws of 1920, of this cause of action against a foreign corporation, because plaintiff is a resident of this State and there is no proof in the moving papers that the assignment to him was merely colorable.
The court has jurisdiction over the person of defendant, because defendant's managing agent was served under subdivision 3 of section 229 of the Civil Practice Act, and defendant was doing business in this State within the principles laid down in Tauza v. Susquehanna Coal Co. ( 220 N.Y. 259) and Interocean Forwarding Co. v. McCormick (168 N.Y.S. 177; affd., 183 A.D. 883). At least two of the causes of action are for damages for delay in delivery of freight deliverable in New York and these causes of action clearly arose in this State. ( St. Louis Southwestern R. Co. v. Alexander, 227 U.S. 218, 226.) To this extent the case comes within the principle stated by Mr. Justice BRANDEIS in State of Missouri ex rel. St. Louis, B. M.R. Co. v. Taylor ( 266 U.S. 200; 69 L.Ed. ___), upon which he distinguishes that case from Davis v. Farmers Co-Operative Equity Co. ( 262 U.S. 312).
Under subdivision 3 of section 229 of the Civil Practice Act the service on Preston was valid. He was described as "General Agent, Freight Department." He had a number of subordinates and certain well-defined duties, soliciting traffic and handling freight claims. The fact that he had no power to extend credit, collect or disburse money, employ or discharge agents and had no charge or control of other agents has been held not to destroy his authority as managing agent. ( Cochran Box Mfg. Co. v. Monroe Binder B. Co., 197 A.D. 221, 222; affd., 232 N.Y. 503; Ultramar Co. v. Minerals Separation, Ltd., 204 A.D. 795; revd. on another point, 236 N.Y. 647.) Defendant maintains substantial offices and engages in substantial business in this State, and yet if the person served is not to be deemed a managing agent, there is no one on whom service could be made.
Motion to vacate service and dismiss the complaint denied.