Wajtman v. Pennsylvania Railroad

Appeal by the Maine Central Railroad Company, appearing specially, from an order granting the motion to confirm the report of an Official Referee and denying appellant’s motion to vacate service of the third party summons and complaint on it. Order affirmed, with $10 costs and disbursements, with leave to appellant to answer within ten days from the entry of the order hereon. (Schwartzenberg v. Maine Central R. R. Co., 258 App. Div. 927.) Johnston, Adel and Sneed, JJ., concur; Nolan, P. J., concurs for affirmance of the order insofar as it grants the motion to confirm the report of the Official Referee, but dissents insofar as the order denies the motion to vacate the service of the third party summons and complaint on the appellant, and votes to grant the motion in that respect and to vacate the service, with the following memorandum: The facts disclosed by the record support the finding that appellant was doing business in the State of New York to such extent as to subject it to the service of process here. Respondent has not established, however, that the person upon whom process was served was a “ managing agent ” within the meaning of section 229 of the Civil Practice Act. (Cf. Taylor v. Granite State Provident Assn., 136 N. Y. 343; Lillibridge, Inc., v. Johnson Bronze Co., 220 App. Div. 573, affd. 247 N. Y. 548; Yeckes-Eichenbaum, Inc., v. McCarthy, 290 N. Y. 437; Wajtman v. Wheeling & Lake Erie Ry. Co., 270 App. Div. 823.) Carswell, J., dissents and votes to reverse the order, to deny the motion to confirm the Official Referee’s report and to grant the motion to vacate the service, on the authority of Yeckes-Eichenbaum, Inc., v. McCarthy and Wajtman v. Wheeling & Lake Erie Ry. Co. (supra). [See post, p. 995.]