Opinion
March 20, 1930.
Appeal from the Municipal Court, Borough of Manhattan, Fifth District.
Scudder, McCoun, Stockton Kerfoot, for the appellant.
Monroe C. Alesker, for the respondent.
The service in Kentucky appears to have been on an actual agent as distinguished from a statutory one almost a year after the defendant ceased doing business in that State. A statutory agent may be presumed to continue as such until his successor is appointed or the business done in the State is wound up. ( American Ry. Express v. Royster Guano Co., 273 U.S. 274; Guerin Mills v. Barrett, 228 A.D. 609.) But an actual agent's right to represent his principal to the extent of receiving service of process would depend on the continuance of his employment. The proof in the present case while not as clear as it might be was sufficient to show that defendant had ceased all business in the State and, therefore, had no agent representing it therein.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LYDON, CALLAHAN and PETERS, JJ.