Kowalchek v. Buck Run Coal Co.

Full title: ADAM KOWALCHEK, Respondent, v . BUCK RUN COAL COMPANY, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 10, 1916

173 App. Div. 653 (N.Y. App. Div. 1916)

160 N.Y.S. 98

Opinion

July 10, 1916.

Howard Taylor, for the appellant.

Max Greenwald, for the respondent.

DAVIS, J.:

The court at Special Term denied defendant's motion to set aside the service of summons and the summons itself in this action.

The plaintiff is a resident of Pennsylvania and he brings this action against defendant, a foreign corporation, to recover damages for personal injuries sustained by him at the defendant's coal mines in Pennsylvania.

According to the affidavit of service the summons was delivered to and left with S.B. Thorne as managing agent and duly designated to accept service. The record here discloses no proof whatever that S.B. Thorne was the managing agent of the defendant, and indeed the plaintiff apparently abandoned this claim and sought to uphold the service on the ground that Thorne was a director. In order to make valid this service, therefore, it must appear, first, that there is no designation of a person to receive service as provided in section 16 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28); second, that neither the person designated nor any of the officers specified in subdivision 1 of section 432 of the Code of Civil Procedure can be found with due diligence; and, third, that the corporation has property within this State, or that the cause of action arose within this State. (See Code Civ. Proc. § 432.) As the above prerequisites to a valid service were not shown to exist, the service was invalid. ( Grant v. Cananea Consol. Copper Co., 189 N.Y. 241.)

The defendant moved to have the summons itself set aside on the ground of lack of jurisdiction. If there be any jurisdiction in the court to entertain this action it must be because of subdivision 4 of section 1780 of the Code of Civil Procedure, that is, in a case where the defendant is doing business within this State. There is nothing in this record to show that the defendant was doing business within this State. For this reason the summons itself should be set aside for lack of jurisdiction. ( Jones v. Burr Brothers, Inc., 142 App. Div. 640.)

The order denying the motion to set aside the service of summons and to set aside the summons itself is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

CLARKE, P.J., LAUGHLIN, DOWLING and PAGE, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.