Gleich v. Ontario Button Co.

GUY, J. This is an appeal from a judgment for plaintiff, taken by default. On the return day of the summons in the court below the defendant appeared specially for the purpose of traversing the return. On a subsequent day the issue of the sufficiency of the service and the jurisdiction of the court was tried before Mr. Justice Wilson, and the affidavits used upon that hearing are used upon this appeal. The sole point at issue is whether the person served was a “managing agent” of the defendant corporation, within the meaning of section [408] 31 of the Municipal Court act (Laws 1902, c. 580). It conclusively appears from the evidence that Asthalter, the person served, was merely a salesman for defendant, whose duties were limited to the soliciting of orders in the city of New York, receiving them, and forwarding them to the defendant; that he never was an officer, stockholder, director, or managing agent of the defendant company. The mere fact that he received orders and sold merchandise on behalf of the defendant does not constitute him a managing agent, within the meaning of the statute. No proper service was made upon the defendant, and the court below never acquired jurisdiction over the defendant in this action. See Frankel v. Dover Mfg. Co., 104 N. Y. Supp. 460; Kramer v. Buffalo Union Furnace Co., 132 App. Div. 416, 116 N. Y. Supp. 1101; Coler v. Pittsburgh Bridge Co., 146 N. Y. 281, 40 N. E. 779. The judgment should therefore be reversed, with costs to the appellant. All concur.