Opinion
May, 1897.
Harris Rudd, for motion.
Montignani, Mallory Elmendorf, opposed.
The American Express Company is a joint-stock association. James C. Fargo is the president and Charles G. Clark is the treasurer of such joint-stock association. On the 13th day of January, 1897, the plaintiff caused a summons entitled "Julia A. Mack, plaintiff, v. The American Express Company, defendant," to be served upon John L. Van Valkenburgh, general agent or manager of the American Express Company in the city of Albany. On the 2d day of February, 1897, Harris Rudd, as attorneys for defendant, served upon the attorneys for the plaintiff a general notice of appearance in the usual form. In this notice of appearance is the following language: "We hereby appear for the defendant in this action and demand a copy of the complaint." At the time of the service of this general notice of appearance they served another notice stating: "You will, please, take notice that we hereby appear for the defendant named herein, and such appearance is especially for the purpose of taking such action as we may be advised for the striking out and setting aside of the summons herein." These papers were entirely independent and no reference was made in either to the other. Within the time required by law, and in compliance with the demand for the service of a copy of the complaint as stated in the general notice of appearance, the attorneys for the plaintiff served upon the attorneys for the defendant a copy of the complaint. On the 15th day of March, 1897, the attorneys for the defendant procured ex parte an order extending the time to answer, which order was obtained on the usual affidavit, in which it is stated that Harris Rudd are the attorneys for the defendant. Nothing was stated either in the affidavit or order that in any way related to or indicated a special appearance. All of the papers served by the attorneys for the defendant upon the attorney for the plaintiff were indorsed with the name of Harris Rudd, "defendant's attorneys," or "attorneys for the defendant." After the service of the order extending time to answer this motion was made. In an action against an unincorporated association all persons interested can be made defendants, or an action may be brought against the president or treasurer of such an association. Code Civil Procedure, § 1919.
The American Express Company being an unincorporated association, the service of the summons upon John L. Van Valkenburgh, the general agent or manager of the American Express Company in the city of Albany, was ineffectual for the purpose of commencing the action. The plaintiff claims, however, that even if the service was irregular and unauthorized, the general appearance for the defendant takes the place of the service. The appearance for the defendant was voluntary and complete. There is nothing to indicate a purpose to question the service of the summons except the independent paper referred to as the special notice of appearance. Defendant, after serving the two notices, might have concluded not to act under the special notice, and it certainly could not then have been said that the defendant had not appeared for the general purposes of the action.
A defendant cannot appear generally and then reserve the right to object to jurisdiction when such objection is purely personal. Woodruff v. Austin, 16 Misc. 543, and cases cited.
The president and treasurer of a joint-stock association under the law is regarded as a corporation sole. Westcott v. Fargo, 61 N.Y. 542.
The failure to add the name of the president or treasurer to the name of the association can be corrected by amendment. Such amendment would not be changing the parties to an action, but would be the correction of a mistake in the name of a party.
Motion is denied, with costs.
Motion denied, with costs.