Brayton v. New York, Lake Erie & Western Railroad

DWIGHT, P. J. The service of a summons in an action brought in Erie county for the death of the plaintiff’s intestate was made upon the division superintendent of the defendant at Buffalo, his division having as termini the cities of Buffalo, Jamestown, and Hornellsville. The objection made to the service is that the person served was not “a managing agent” of the defendant, within the meaning of the statute, (Code Civil Proc. § 431, subd. 3.) We think the objection is not well taken. It will be observed that the requirement is not that the service shall be made upon the managing agent, but only upon a managing agent of the defendant. That the division superintendent of a large" and important division of the company’s road, remote from the general offices of the company, is such, we can have no doubt. In the case of Palmer v. Railroad Co., 35 Hun, 370, affirmed 99 N. Y. 679, it was held that “the statute is satisfied if he [the person served] be a managing agent to any extent.” In Ruland v. Publishing Co., (City Ct. N. Y.) 10 N. Y. Supp. 913, a managing agent was defined to be “a person having independent, discretionary control in the locality where his duties are performed.” In Barrett v. Telegraph Co., (Sup.) Id. 138, it was held that “if he [the person served] sustain 265 sufficient character and rank to render it reasonably certain that the corporation will be apprised oí the service, the requirement of the statute is answered.” Under the application of either of these tests, it is plain, we think, that the statute was satisfied in the service in question; and in the case of Rochester, H. & L. R Co. v. New York, L. E. & W. R. Co., 48 Hun, 190, we held that a division superintendent was, for the purposes of that action, a managing agent, within the meaning of the statute, and that service upon him was sufficient. The motion to set aside the service in this case must be denied, and the order appealed from affirmed, with costs. AE concur.