
    Boynton v. Keeseville Electric Light and Power Company.
    (Essex County Court—September,
    1893.)
    The return of a constable showing personal service of a copy of the summons m a Justice’s Court upon the defendant therein named, is prima facie sufficient to give the justice jurisdiction of the person of the defendant, but not conclusive.
    On the return day of the summons and before further proceedings are had, defendant may appear specially and file an affidavit showing that the summons has not been served at all, or that the service was defective. If the facts stated in the affidavit are not denied, a failure by the justice to dismiss the action is error.
    In an action commenced in Justice’s Court against a domestic corporation, the constable made a return of service of the summons on the defendant by delivering to and personally leaving a copy thereof with one M., the managing agent of the company. On the return day, defendant appeared specially and objected to the jurisdiction of the justice on the ground that no service of the summons had ever been made on defendant, and filed an affidavit, made by &, its treasurer, to the effect that M., at the time the summons was served on him, was not in defendant’s employ “in any capacity whatever,” and not connected with it in any capacity. M. was also sworn and testified to the same facts stated in Gr.’s affidavit. Defendant’s objections were overruled, an answer filed, trial had and judgment rendered for plaintiff. Held, that the justice erred in refusing to dismiss the action, and the judgment for plaintiff should be reversed.
    The fact that defendant, after the justice had overruled its objections, filed an answer and proceeded to trial, was not a waiver of its objections to the justice’s jurisdiction.
    Appeal from judgment rendered in Justice’s Court.
    On the 29th day of April, 1892, the summons herein was issued, which was on the thirtieth day of the same month returned served, the constable certifying that he had served the same upon the defendant, “ The Keeseville Electric Light & Power Company, by delivering to and leaving with personally a copy thereof with George F. Morse, the managing agent of said Company.” The summons was made returnable the 9th day of May, 1§92, at nine o’clock in the forenoon, at which time the plaintiff appeared in person and filed his com- ' plaint in writing, and the case was held open one hour, when N. T. Hewitt appeared specialty/ and objected to the jurisdiction of the court. An affidavit was filed by Hewitt showing that he had been retained by the defendant to appear specially and act for the defendant “ by raising objections that no legal service ” of the summons had been made on the defendant. Written objections were also filed by the defendant challenging the jurisdiction of the court, on the ground that no service of the summons had ever been made upon the defendant; and in support of such objections, Hewitt filed an affidavit of one Gardner, the treasurer of the defendant, to the effect that Morse, at the time the summons was served upon him, was not in the employ of the defendant “ in any capacity whatever,” and was not connected with it in any way, and had not been since the 31st day of December, 1891. The defendant also produced Morse, who was sworn as to his relations with the defendant, and he testified that at the time of the service of the summons, he was not in the employ of the defendant in any capacity whatever, and was not connected with it in any way, and that since January 1, 1892, he had been in the employ of one Whiteside Hill, for whom he had been and was acting at the time of the service of the summons. Plaintiff filed his own affidavit, to the effect that he had been “repeatedly informed by both ” Morse and Gardiner “ since August, 1891, that said Morse was the managing agent of the defendant.” He also showed by the cross-examination of Morse, that since January 1, 1892, Morse had signed statements to the effect that he was agent of the defendant and had made declarations to that effect. The justice overruled the objection, and the defendant filed an answer to the complaint, and requested the plaintiff to file a bill of particulars, which he did. The plaintiff was the only witness sworn upon the trial, and he was cross-examined by defendant. Judgment was rendered for the plaintiff, and from that judgment this appeal was taken.
    
      Jesse Stiles, for appellant.
    
      A. W. Boynton, in person, respondent.
   McLaughlin, J.

A justice of the peace obtains jurisdiction by the personal service of a copy of the summons on the defendant. The return of the constable showing such service is prima facie sufficient to give the court jurisdiction. But while such return is prima facie sufficient it is not conclusive of the facts stated therein, and on the return day and before any other steps are taken in the action the defendant can challenge the right of the plaintiff to proceed upon the ground that the return is false and that the summons in fact has not been served. If the summons has not been served, or the service is in any way defective, such fact may be shown by affidavit. If the facts stated in the affidavit filed, showing that no service has been made, or that the service is defective, be not denied, then it is the duty of the justice to dismiss the action, and it is error for him to refuse to do so. Fitch v. Devlin, 15 Barb. 47; Wheelers. N. Y. & Harlem R. R. Co., 24 id. 414; Waring v. McKinlay, 62 id. 612 ; 3 Wait’s Law & Pr. (5th ed.) 137; Van Rensselaer v. Chadwick, 7 How. Pr. 297; Great West M. Co. v. W. A. M. Co., 13 Am. St. Rep. 204.

But if it could be held that an officer’s return was conclusive so that it might not be impeached by motion to set aside, at the earliest opportunity, yet it could not be held conclusive that the person served was the defendant’s agent, since this does not relate to a matter presumptively within the officer’s personal knowledge. Great West M. Co. v. W. A. M. Co., 13 Am. St. Rep. 204; Bond v. Wilson, 12 Am. Rep. 466, and cases cited.

Upon the argument the respondent cited in support of his contention, that the return of the constable was conclusive and could not be contradicted, the case of New York, etc., R. Co. v. Purdy, 18 Barb. 57, and Hubbard v. Chapin, 28 How. 407. I do not think that the former case is in point. What is there said in reference to the return was not necessary for a decision of the case. The point there involved was whether in another action the return of the constable could be attacked, and the court held “that the’facts stated in the constable’s return cannot be contradicted and shown to be false in another action for the purpose of defeating the judgment.” The latter case was decided upon the strength of the former, and it does not seem to me to have been well considered. At all events I do not consider it to be good law, and I do not feel bound to follow it. To hold that the court obtains jurisdiction of a defendant by the return of the constable, certifying that service has been made, when in fact it has not, and that the truth cannot be shown to the court before any other steps are taken in the action, is a proposition which at once strikes one as very unjust. It seems to me that in furtherance of the ends of justice, and to prevent unnecessary litigation, that when a defendant appears in season, and offers to prove that the process by which jurisdiction is sought to be obtained has not been legally served, or not served at all, he should be allowed to do so. And if such fact be established the action should be dismissed. The justice in that case may be apprised at once that he has no jurisdiction over the defendant, and that no legal judgment can be rendered. Such practice seems to me to be established by the authorities.

Justice Mullís succinctly states the rule in Waging v. MaKinlay, 62 Barb. 612. “ If process has been defectively served or not served at all, the defendant cannot come into court and by plea or answer set up such defect orqvant of service, to defeat the action. The issue to be joined and tried relates to the merits, and not to the practice in the suit. But he may come in and by affidavit show the error, and ask a dismissal of the proceedings, and if the justice disregards his objections he may, on appeal from the judgment, have a review of the question, and thus obtain the relief denied him in the court below.”

In this case, at the very outset, the affidavit of the treasurer of the company was filed, showing that the person whom the constable had served was not in the employ of the defendant at the time, or in any way connected with it. Indeed, it might well be questioned whether Morse, even if he was at the time in the employ of the defendant, and performed all the acts as claimed by the respondent, was a managing agent ” within the meaning of the statute, so that service upon him would bind the defendant. Taylor v. G. & S. P. Association, 136 N. Y. 346. Morse himself testified that at the time service was made upon him he was not in the employ of the defendant, or connected with it in any way. The affidavit of the plaintiff filed, to the effect that Gardiner, the treasurer of the company, and Morse had both stated to him several times since August, 1891, that Morse was the managing agent of the defendant, in no way contradicted the statements made in the affidavit of Gardiner, or the evidence of Morse himself, to the effect that at the time service was made he was not employed by the defendant or connected with it' in any way. It was, however, argued that the statements made by Morse, and the bills rendered by him in the name of the defendant, wherein he had subscribed his name as agent, were sufficient evidence to show that he was acting as agent for the defendant. It would hardly seem necessary to cite any authorities to show that this is not the law. The rule is .well settled that a person cannot, by his own acts, make himself an agent. 1ST either can he by any declarations or statements made, or writings signed by him, that he is an agent, establish his authority as such. The inquiry always must be, what has the principal done to confer such authority — to authorize his acts. Agency cannot be established without in some way, either directly or indirectly, connecting the principal. Something must be done from which a legal conclusion can be drawn that the declarations or statements made by the agent, or the acts done by him, are said or done by virtue of authority conferred upon him by the principal. Sperry v. Reynolds, 65 N. Y. 189.

It was further contended by the respondent upon the argument that inasmuch as the defendant appeared and filed an answer and took part in the trial, after its objections to the jurisdiction of the court had been overruled, that that was a sufficient appearance on the part of the defendant, and gave the court jurisdiction. In other words, that by thus appearing, the objections previously taken to the jurisdiction of the court were waived. Such contention is not supported by the authorities. Avery v. Slack, 17 Wend. 81; Mooney v. Hudson River R. R., 3 Daly, 108; Horton v. Fancher, 14 Hun, 175 ; Wheeler v. Lampman, 14 Johns. 481; Sullivan v. Frazee, 4 Robt. 620.

If it were true that such appearance waived the objections previously taken, it would not aid the respondent for the reason that no one was authorized to appear generally for the defendant. On the contrary, it appears clearly from the return that the defendant had authorized Hewitt to appear for the purpose of objecting to the jurisdiction of the court, and for no other purpose, and inasmuch as the plaintiff himself objected to Hewitt’s authority to appéar for the defendant, it became necessary, after such objections were interposed, for Hewitt to make proof of his authority, which he did not do except for a special purpose. Section 2890 of the Code of Civil Procedure is imperative. “ The justice shall not suffer a person to appear as an attorney unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself or another.” Here Hewitt’s authority was not admitted. On the contrary, it was disputed, and no proof was given except to appear for a special purpose. See Sperry v. Reynolds, 65 N. Y. 189.

For the foregoing reasons, I think the justice erred in refusing to dismiss the action. The judgment should be reversed.

Judgment reversed.  