
    Charles B. Evans, Respondent, v. American Steel Foundry Co., Appellant.
    Appeal from order of the Special Term refusing to set aside service of summons upon a foreign corporation.
    Henry A. Rubino, for appellant.
    Ivins, Kidder & Melcher (Benjamin J. Downer, of counsel, for ■respondent.
   Hascall, J.

While it is true that the affidavit of Mr. Elliott does not set forth the fact so that the court may judicially determine whether due diligence has been used to find and serve within the State an officer or director of the corporation, yet there is sufficient of material allegations in the positive averments of plaintiff’s ■affidavit to sustain the order, without resting upon the question of due diligence to serve any other than the agent of the corporation.

It does appear that Mr. Bigelow is defendant’s managing agent within the meaning of section 432 of the Code and no issue is raised by allegation that any officer was, at the time of service, within the State.

Order affirmed, with ten dollars costs and disbursements of this appeal.

Fitzsimons, Ch. J., and O’Dwyer, J., concur.

Order affirmed, with ten dollars’ costs.  