24 A.D.2d 326 | N.Y. App. Div. | 1966
This is an appeal from an order denying defendant’s motion to dismiss the complaint for lack of jurisdiction. The action is brought to recover damages for an alleged breach of contract by the defendant, a Portuguese corporation. Jurisdiction is dependent upon New York’s new “ long arm ” statute, specifically CPLR 302 (subd. [a], par. 1) which provides as follows:
“ (a) Acts which are the basis of jurisdiction, A court may-exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:
“ 1. transacts any business within the state ”.
Before the enactment of this statute, effective September 1, 1963, plaintiff brought suit against this defendant for the same relief herein sought; and the action was dismissed upon the ground that the defendant was not doing business in this State. In opposition to this motion to dismiss, the plaintiff has set forth in its affidavits facts tending to .show that the defendant was doing some business in New York. Since no appeal was taken from the decision dismissing the former action, that determination is res judicata herein (Singer v. Walker, 21 A D 2d 285, 287); and on this motion and appeal such facts are offered and may be considered only insofar as they may tend to establish that the defendant transacted some business in the State and that this action arises therefrom.
The facts in this case are that in early February, 1954, the defendant in Lisbon, Portugal sent a letter to the plaintiff in New York City offering to make the plaintiff its sole representative for the sale of its olives and other food products in the United States and Canada, it being stipulated that the plaintiff would not handle the sale of similar products of any other company, and that the plaintiff would receive a 3% commission
Plaintiff’s affidavits in opposition to the motion indicate that during the life of the contract the plaintiff sold between $300,000 and $500,000 worth of defendant’s products annually in the United States and Canada; that on some occasions officers of the defendant came to New York and with plaintiff’s president “ engaged in sales and transactions of business on behalf of the defendant that in addition to making sales for defendant, plaintiff bought barrels on behalf of the defendant in New York of the value of $100,000, and they were shipped from New York to Portugal in defendant’s name; and that defendant paid for them out of “ funds available to it in the United States.” The plaintiff also asserts that during this period there have been ‘ ‘ substantial quantities of goods and merchandise belonging to the defendant situated in this State.”
The defendant denies that it had an office, bank account or employee in this State, and that at any time it maintained any stock of goods here. With respect to the purchase and shipment by the plaintiff of barrels in New York for the defendant, the defendant alleges that such acts were transactions outside the scope of the sales contract in suit, and at most would be evidence of doing business in New York, which is not an issue in this case (and, see, Greenberg v. Lamson Bros. Co., 273 App. Div. 57).
The merits of the action are not before us at this time. (Longines-Wittnauer v. Barnes & Reinecke, 15 N Y 2d 443, 460.)
The question presented is whether the defendant transacted some business in New York with respect to the contract out of which this action arises. If the plaintiff were an employee of or an agent acting exclusively for the defendant, plaintiff’s acts, in and of themselves, performed for the defendant in New York would suffice to establish jurisdiction of the action against the defendant. (Schneider v. J & C Carpet Co., 23 A D 2d 103; and, see, American Cyanamid Co. v. Rosenblatt, 16 N Y 2d 621, cert. den. 382 U. S. 110.) But it is asserted and not denied
We must consider, therefore, (1) whether the mere mailing of the contract offer by the defendant to the plaintiff in February, 1954 constituted a sufficient act of business to subject it to the jurisdiction of our courts under CPLB 302 (subd. [a], par. 1) and, if not, (2) whether there is evidence of sufficient additional acts by the defendant in New York pursuant to said contract to subject the defendant to the jurisdiction of our courts.
We observe at the outset of this discussion that although traditionally a contract is deemed made when accepted, the acceptance of this contract by the plaintiff in New York was not an act of the defendant here (Hanson v. Denckla, 357 U. S. 235, 253). Under the circumstances of this case it is not significant that plaintiff mailed its acceptance from New York, nor that this writing, by the terms of the offer may not have become a formal acceptance until its receipt by defendant in Lisbon. (See Longines-Wittnauer v. Barnes & Reinecke, 15 N Y 2d 443, 457, supra, and note; Agrashell, Inc. v. Bernard Sirotta Co., 344 F. 2d 583, 588; and 1965 Supplementary Practice Commentary by Joseph M. McLaughlin, McKinney’s CPLB 302, p. 48 et seq.)
Mailing a contract into a State has been held a sufficient basis for the assumption of jurisdiction by the State with respect to life insurance policies. (McGee v. International Life Ins. Co., 355 U. S. 220.) In the enactment of the CPLB the Legislature has not extended New York’s jurisdiction to the utmost constitutional limit (Longines-Wittnauer v. Barnes & Reinecke, supra). We do not consider whether in the light of the McGee case New York could extend its jurisdiction over the parties to all commercial contracts effected by mailing into this State; nor whether the Legislature in its wisdom should extend such principle to all commercial contracts (see Simonson v. International Bank, 14 N Y 2d 281, 287). Enthusiasm for extending jurisdiction over foreign persons in foreign lands in limited contact cases, however, may well be tempered by the expectation that the same rule will be reciprocally applied in remote countries against our citizens here.
Finally, we consider whether the defendant did other acts in New York in relation to the contract in suit, which constitute the transaction of some business in New York. Just as the mere mailing of the proposed contract to New York for acceptance and return did not constitute the transaction of business by the defendant in New York, so also the mere shipping of its goods to purchasers in New York did not constitute the transaction of business in New York. (Insull v. New York, World-Tel. Corp., 273 F. 2d 166, affg. 172 F. Supp. 615; Grobark v. Addo Mach Co., 16 Ill. 2d 426.)
The plaintiff asserts, however, that the defendant maintained funds in New York and stored substantial quantities of goods and merchandise here, thus submitting itself to the protection of our laws. If that he true, and if the goods and merchandise were stored in 'connection with the -contract in suit, that would afford ground for assumption -of jurisdiction under CPLR 302
The transaction of business has been defined in this manner: “ In the broadest sense, a piece of business is transacted within this State when an individual or corporation is within or enters this State in person or by agent and, through dealing herein with another, effectuates or attempts to effectuate herein a purpose directly related to his economic affairs or, if a corporation, to its corporate ends,” (Insull v. New York World-Tel. Corp., 172 F. Supp. 615, 628-629, affd. 273 F. 2d 166, cert. den. 362 U. S. 942.) The undenied acts of defendant’s officers in New York in defendant’s behalf in furtherance of the performance of the contract constituted the transaction of business within this State in connection with the subject of this action, and within the meaning and intent of CPLR 302 (subd. [a], par. 1), so as to confer jurisdiction of this action upon the courts of New York. (Kropp Forge Co. v. Jawitz, 37 Ill. App. 2d 475 [1962]; National Gas Appliance Corp. v. AB Electrolux, 270 F. 2d 472; and, see, Agrashell, Inc. v. Sirotta Co., 344 F. 2d 583, 588, supra; and American Cyanamid Co. v. Rosenblatt, 16 N Y 2d 621, cert. den. 382 U. S. 110, supra.) We hold, therefore, that the defendant is subject to the jurisdiction of this court.
Accordingly, the order appealed from should be affirmed, with costs and disbursements to the plaintiff-respondent.
Breitel, J. P., Valente, McNally and Stetjer, JJ., concur.
Order entered on July 22, 1965, unanimously affirmed, with $30 costs and disbursements to the respondent.