
    Julius Tuchband, Respondent, v. The Chicago and Alton Railroad Company, Appellant.
    Where a foreign railroad corporation has an office in this state in which a substantial portion of its business is transacted by a person designated by itself as a general agent, although followed by words indicating his agency to be confined to some one department, such agent is a “managing agent ” within the meaning of the provision of the Code of Civil Procedure as to the service of summons upon a foreign corporation defendant (§ 433), and a service upon him is valid and binding upon the corporation.
    (Argued June 30, 1889;
    decided October 8, 1889.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made May 24, 1889, which reversed the order of Special Term granting motion to set aside the service of the summons and complaint herein and denied said motion.
    The facts are sufficiently stated in the opinion.
    
      
      L. A. Gould for appellant.
    The person upon' whom the alleged service was made was not a “ managing agent ” within the meaning of the statute. (Brewster v. M. C. R. R. Co., 5 How. Pr. 183, 186. Flynn v. H. R. R. R. Co, 6 id. 308, 309 ; Doty v. M. C. R. R. Co., 8 Abb. Pr. 427,428 ; Reddington v. Mariposa Co., 19 Hun, 406; Stenett v. D. & R. C. Co., 17 id. 316, 317.)
    
      Henry Schmitt for respondent.
    The Special Term having found that the person upon whom the service was made was . the proper person to be served, the motion should have been denied It should not have been decided at Special Term upon the ground stated in the opinion of the learned judge, for the reason that that ground was not stated in the notice of motion, and it was essential that it should be stated. (General Rules of Practice, Rule 37; Selover v. Forbes, 22 How. 477; Brower v. Brooks, 1 Barb. 423; Gurnee v. Hoxie, 29 id. 547; Coit v. Lambeer, 2 C. R. 79 ; Montrait v. Hutchins, 49 How. f 105; Garner v. Mangam, 46 N. Y. Supr. 365.) Charles Oberg was the managing agent of the defendant, and the service upon him was good. (Palmer v. Penn. R. R. Co., 35 Hun, 369; Shackelton v. Wainwright Mfg. Co., 7 N. Y. State Rep. 872; Pope v. T. H. C. Co., 87 N. Y. 137, 140; Hiller v. B. & M. R. R. Co., 70 id. 223, 227; Happy v. Mosher, 48 id. 317; Clews v. R. & R. I. R. R. Co., 49 How. Pr. 117; Bayne v. R. R. Co., 9 id. 449.)
   Danforth, J.

The plaintiff’s cause of action arose in the state of Missouri. The defendant is a foreign corporation, and there has been no designation by it of any person upon whom service of process may be made in the state of Hew York. One Charles Oberg is described on the defendant’s circulars and time-tables, and in its list of “ officers and agents,” as its “ general agent, passenger department, 261 Broadway, Hew York,” and, of himself, says he has charge “of the correspondence and business matters relating to carriage of passengers, but has nothing to do with the freight department.” The place described as 261 Broadway is on a street corner. It has windows on Broadway and others on Warren street. They are inscribed “ Chicago and Alton Railroad,” “ Freight and Passenger Agency, Chicago and Alton Railroad,” “ Chicago and Alton 'Railroad Office.” These signs are several times repeated, and plainly indicate that the office is a general office for the transaction of general railroad business in connection with the defendant’s road, the carriage of passengers and freight constituting its entire business. The summons and complaint in this action were served on Oberg.

The defendant moved to set aside the service of the summons and complaint, “ upon the ground that the person to whom the same were delivered was not a person upon whom any service is authorized by statute.” The court at Special Term held the service to have been well made and upon the proper person, saying, “ Oberg was a managing agent within the meaning of that term as used in the Code,” but granted the motion for the reason that “it is not shown that the defendant now has, or at the time of the service had, any property within the state.”

Upon appeal the General Term reversed the order of the Special Term and denied the motion, the learned court considering both questions. It will be seen, therefore, that both courts agree that Oberg was, at the time of service, a managing agent of the corporation, the General Term holding also that the corporation was shown to have property within the state.

The Code (§ 432) provides “ that personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof,” (1) “ to the president, treasurer or secretary, or, if the corporation lacks either of those officers, to the officer performing corresponding functions under another name.” (2) To a 'person designated for the purpose in the manner therein prescribed. (3) If there is no such person as those named in the preceding subdivisons within the state, “ and the corporation has property within the state, or the cause of action arose therein, to the cashier or director, or a managing agent of the corporation within the state.”

It being conceded that the cause of action did not arise in this state, we are to inquire whether (1st.) the corporation has property within this state. As to that there are positive averments in the plaintiff’s papers, both general and specific— general, that it has property within the state, and specific, pointing out office furniture, tickets and other articles in its office, and cars for transportation. (2d.) Whether Oberg, within the meaning of the Code (supra), was a managing agent. The defendant, like other railroad corporations, necessarily has not only directors, a treasurer and secretary, but other officers and agents. By these persons, or, under their direction, by others, the business of the company is conducted. From the very nature of a body corporate, service of process cannot be personal, and at common law it was made by serving it on a proper officer so that it might come to the knowledge of the company, and then further proceedings by distress. (1 Tidd’s Pr. 121.) Under the statute (supra) thesame object was in view; and when the corporation has an office in this state where a substantial portion of its business is transacted by a person designated by itself as a general agent, although followed by words indicating some one department, it may safely be assumed that the object of the statute will be accomplished. It, of course, intends a “ managing agent ” in this state, and where a corporation created by the laws of any other state does business in this state, the person who, as its agent, does that business should be considered its managing agent, and more especially should that be so where the foreign corporation has an office or place of business in this State, and when that office is in charge of that person and he there acts for the corporation. He is there doing business for it, and so manages its business. Such person is, in every sense of the words used in the statute, “ a managing agent.” Corporations of this description have become very numerous. They carry on an extensive business in this state. They may sue in our courts and may be required to answer as defendants in the same tribunals, and if they have notice to do so in the simple and summary manner prescribed by statute, the ends of “justice will be attained.

It was the duty of Oberg, the person served, to send the papers he received to his principal, and it was his declared intention to do so. It was, in fact, done, and the defendant appears not to answer to the suit, but to complain of the insufficiency of service. We think the objection unavailing. The order in this case is not only directly sustained by the case of Palmer v. Penn. R. Co. (35 Hun, 369), but is within the principle on which Hiller v. B. & M. R. Co. (70 N. Y. 224), and Pope v. T. H. C. Mfg. Co. (87 id. 137) were decided. So far as the cases cited by the appellant hold a contrary doctrine, they cannot be approved. To limit service by requiring the person served, in case of an action against a railroad corporation, to be one who controls “ the general and practical operations and business of running its road,” would so restrict the meaning of the statute as to render it useless. Such an agent would naturally find his occupation and engagement in the state where the road was domiciled or operated; and if his incidental presence in this state subjected him to process as representing the corporation, it cannot be supposed that the legislature intended to confine the remedy to him alone.

The order appealed from slioxdd be affirmed, with costs.

All concur.

Order affirmed.  