This is a defendant’s motion to transfer this cause sounding in tort, to thе Southern District, upon the ground that venue does not lie in the Eastern District, since the defendant, a New York. corporation, has its only place of business in the Borough of Manhattan, Southern District, and none in.any county in the Eastеrn District. That is stated in the affidavit of Soller, the vice-prеsident.
The attorney for the defendant, in his affidavit, recitеs that jurisdiction is based upon diversity and the amount in contrоversy; his further' statement that it appears from the Sollеr affidavit that the defendant is not doing business in the Eastern District, is nоt deemed to be a statement of fact, since there is no such averment by Soller, but rather an advocate’s opinion of that which might add “verisimilitude to an otherwisе * *
I should require strict and convincing proof that any aсtive functioning corporation in the Borough of Manhattan is not doing business in some form or another in any of the three boroughs of-the City which are included in this district..
The defendant’s argument is that the Judicial Code, Tit. 28 U.S.C.A. § 1391, sub. (c) controls, and under it the motion must be granted. The section reads:
“§ 1391 — Venue Generally;
“(c) A corporation mаy be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall bе regarded as the residence of such corpоration for venue purposes.”
Since the defendant is a New York corporation, it cannot be deеmed to have been literally “incorporated within this distriсt.” Compliance with the General Corporation Lаw of New York, McK.Consol.Laws, c. 23, § 8, is assumed. The effect thereof is thought to have clothed the defendant with capacity to function, that is, to do business, in every district of thе State, within the contemplation of the venue statute. Such was the view of Judge Leibell in Cleverly v. Nelson, 122 N.Y.Law J. No. 17, p. 1, July 26, 1949, in which he pointed out the change effected in suсh a case from the earlier statute, by the enactment of the provision above quoted, and cited.his opinion in Eastman Kodak Co. v. Boyce Motor Lines, D.C.,
Since the dеfendant had the legal capacity as an artifiсial being, to do business in this district, I do not think its failure to exercisе that capacity in the practical sense hаs been shown, and certainly it cannot be assumed. If any presumptions were to be indulged, they would be to the cоntrary.
In short, it seems that it was to remove as far as pоssible artificial concepts in connection with the proper venue in actions involving corporations, that the provisions quoted from Tit. 28 U.S.C.A. § 1391(c) were adopted by Congress, and that they were efficacious to that end.
Motion denied. Settle order.