91 N.Y.S. 48 | N.Y. App. Div. | 1904
This is an action sounding in tort to recover for goods sold and delivered to the defendant by the plaintiff under a written agreement of sale, which was in the form of an order addressed to The
The law is well settled, however, that under the circumstances disclosed by the evidence in this case, the plaintiff was not “ carrying on its business ” in this State within the meaning of the statute. It was a manufacturing corporation organized under the laws of the State of Ohio, and had its principal, and so far as the State of Hew York is concerned, its only office in Canton, Ohio. It employed an agent, who resided in the city of Hew York, who sold the goods in question under the provisions of the written contract, addressed to and accepted by the plaintiff in the State of Ohio, and under the authorities this was not “ carrying on its business ” in the sense that that phrase is used in the statute cited. (Crocker v. Muller, 40 Misc. Rep. 686; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138; Droege v. Ahrens & Ott Mfg. Co., 163 N. Y. 466, 471, 472, and authorities there cited; Hargraves Mills v. Harden, 25 Misc. Rep. 665; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727.) The plaintiff was not carrying on its business in this State in the sense contemplated by the statute, and as the complaint appears to have been dismissed upon an erroneous theory, the judgment cannot stand.
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.