Winslow v. Staten Island Rapid Transit Co.

Van Brunt, P. J. The summons in this case was attempted to be served by delivery of a copy thereof to one Edward Curry at the office of the defendant, in the city of New York. The proof seems to indicate that the person served was the assistant treasurer of the defendant, although at the time of the service, when asked by the deputy-sheriff, he said he was the treasurer of the corporation. According to section 431 of the Code, personal service of a summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof within the state to the president or other head of the corporation, to the secretary or clerk of the corporation, or to the cashier, treasurer, director, or managing agent. The service of the summons was set aside upon the ground that Curry occupied neither of those positions. It is urged, in the first place, upon this appeal, that, as the treasurer was a nonresident, therefore the assistant treasurer was the person named, or intended to be named, in the statute; and, if Curry was not an assistant treasurer, then he came under the definition of a managing agent, and service upon him, therefore, conferred jurisdiction. The fact that the person served was not the treasurer seems to be clearly established, and the fact that he occupied another office, and performed the duties of treasurer, perhaps, did not authorize the service upon him so as to bind the corporation, as the assistant treasurer is not designated in the Code as one of the persons on whom such service shall be made. It is sought also to sustain the service by showing that Curry was a managing agent of the corporation. In this we think the proof wholly fails. It is true that Curry was engaged in and about the business of, the corporation, and that, in addition to his ordinary duties as clerk to the corporation, he was in the habit, as assistant treasurer, of drawing checks payable to the order of another clerk of the corporation. But there is no evidence whatever that he had any part in the management of the business of the corporation, or that he exercised any authority as a managing agent. Numerous cases have been cited upon the part of the appellant to sustain the proposition that he was at least a managing agent, and our attention is particularly called to the case of Palmer v. Railway Co., 35 Hun, 369, affirmed in 99 [170] N. Y. 679. But the facts of that case differ" very materially from those in the case at bar. The person served in that case was an agent of the company. He managed a certain part of the business of the corporation, and as such had authority to act for the corporation. In the case at bar there is no evidence that Curry had any sucli authority, or that the duties which he performed were anything more than of a clerical character. It is true that language has been used in some of these cases to the effect' that the object of all service of process for the commencement of a suit or other legal proceeding is to give notice to the party proceeded against, and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. But where the statute prescribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with, or jurisdiction cannot be acquired. If there are any hardships under the law, it.is not for the courts to amend the statute, because that is a duty which is imposed upon the legislature. The order appealed from must be affirmed, with $10 costs and disbursements. Bkady, J., concurs.