15 N.Y.2d 443 | NY | 1965
Lead Opinion
In the three cases under review—one sounding in contract and two in tort—we are called upon to decide whether the courts of this State acquired personal jurisdiction, under our “ long-arm ” statute (CPLR 302), over foreign corporations not “ doing business ” here in the traditional sense. Since there are several questions of law common to all three cases, we discuss such questions generally, at the outset, before undertaking a more particularized consideration of the cases themselves.
It is exceedingly clear that common-law principles of jurisdiction were early imported into the jurisprudence of the several states and have since taken on constitutional character by virtue of Supreme Court rulings that the improper exercise of jurisdiction by state courts infringes due process guarantees. (See, e.g., Pennoyer v. Neff, 95 U. S. 714; Riverside Mills v. Menefee, 237 U. S. 189.) The traditional foundation of judicial jurisdiction is physical power (see McDonald v. Mabee, 243 U. S, 90, 91), and in the case of foreign corporations, with which we are
The standard for assessing the irreducible minimum forum activities constitutionally requisite to subject foreign corporations and nonresident individuals to personal jurisdiction was reformulated in the cases of International Shoe Co. v. Washington (326 U. S. 310) and McGee v. International Life Ins. Co. (355 U. S. 220). By those decisions, the Supreme Court opened a broad and previously unavailable — although still largely undefined—area for state exercise of jurisdiction over such parties. In place of the former rigid tests of “ residence ” and “doing business ”, the Supreme Court, in International Shoe, substituted the flexible requirement that a nonresident defendant, against whom a judgment in personam is sought in the forum state, be shown merely to ‘ ‘ have certain minimum contacts with it such that the maintenance of the suit does not offend ' traditional notions of fair play and substantial justice ’ ” (326 U. S., at p. 316). And, in McGee, the court upheld the power of a state to subject a foreign corporation to suit in its courts on the basis simply of an isolated insurance contract “ which had substantial connection with that State ” (355 U. S., at p. 223).
But this does not mean, the Supreme Court made clear in the later case of Hanson v. Denckla (357 U. S. 235), that all restrictions on a state court’s exercise of personal jurisdiction over foreign corporations have come to an end. Restating its view that “progress in communications and transportation” has occasioned a relaxation of “ the rigid rule in Pennoyer v. Neff ” and an evolution to “ the flexible standard of International Shoe ”, the court went on to caution that “it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts ” (357 U. S., at p. 251). “ The unilateral activity of those who claim some relationship with a nonresident defendant ”, the court concluded, “ cannot satisfy the requirement of contact with the forum State. * * * [I]t is essential in each ease that there
Taking advantage of the Supreme Court’s broadening of the bases for the exercise of personal jurisdiction over nondomiciliaries, the Legislature of this State, in 1962, following a study and a recommendation by the New York Advisory Committee on Practice and Procedure,
Section 302 is clearly of a procedural and remedial nature, and that, indeed, was the characterization applied by the Supreme Court to the somewhat similar provisions of the California statute before it in the McGee case (355 U. S. 220, supra). In upholding the retroactive application of that statute, the Supreme Court observed that such legislation is “ remedial, in the purest sense of that term, and neither enlarge[s] nor impair [s] * * * substantive rights or obligations ”, its effect being merely to provide the plaintiff with a new “ forum to enforce whatever substantive rights ” he might have against the defendant (355 U. S., at p. 224). And the Illinois Supreme Court reached a like conclusion with respect to the statute from which section 302 was derived, also sustaining its retroactive application to a suit instituted subsequent to its enactment but based on a cause of action which had previously accrued. (See Nelson v. Miller, 11 Ill. 2d 378, 382-383.)
The statute involved in Jacobus v. Colgate (217 N. Y. 235, supra), upon which the appellants before us rely, was of a materially different character. That statute was held, in effect, to have created a new right of action—to have supplied “ a remedy by which a right for the first time [became] enforceable ” (217 N. Y., at p. 242)—by converting what was previ
The retroactive application of provisions resembling section 302 has, as noted, been upheld as constitutionally valid (see, e.g., McGee v. International Life Ins. Co., 355 U. S. 220, 224, supra; Nelson v. Miller, 11 Ill. 2d 378, 382-383, supra; Bluff Cr. Oil Co. v. Green, 257 F. 2d 83, 85-86), and it is of significance that the Supreme Court, in a very recent decision (United States v. First Nat. City Bank, 379 U. S. 378), apparently perceived no constitutional impediment to our construction giving retroactive effect to section 302, as indicated in Simonson, to the extent of applying it to a “ suit * * * instituted after the effective date of the statute ’ ’ upon the basis of ‘ ‘ transactions occurring before the effective date” (379 U. S., at p. 382; italics in original). While we left open in Simonson the possibility that retroactive application of the statute “ in particular situations” might give rise to constitutional questions (14 N Y 2d, at p. 288), no such exceptional situation is presented in any of the cases before us.
We turn, then, to those specific cases. It is the position of each of the appellants that section 302 may not be interpreted to
The plaintiff Longines-Wittnauer, a New York corporation, seeks damages of some $476,000 for breach of warranty in the manufacture and sale of machines specially designed for it by the appellant Barnes & Beinecke, a Delaware corporation having its place of business in Chicago, Illinois. The parties had carried on negotiations in 1962, the appellant in April and May of that year mailing its contract proposals for the machines to the plaintiff in New York and shortly thereafter sending key officers to this State to discuss the terms of the agreement. After further meetings in Chicago, a written contract in the form of a printed purchase order was executed in June 1962 by the appellant in Chicago, the purchase order itself reciting, however, that it was “ a contract made in the State of New York and governed by the laws thereof ”. Thereafter, officers and employees of the appellant, including its president, treasurer and engineers, twice came to the plaintiff’s plant in Lynbrook on Long Island to discuss certain problems in connection with the performance of the contract. There were meetings in Chicago as well, and in March 1963 a supplemental agreement was executed by the plaintiff in New York after it had been signed by the appellant in Chicago. This agreement increased the price of the machines from $109,000 to $118,000 and provided, among other things, that their delivery did not constitute acceptance, it being specified that such acceptance would occur only after the machines had met certain tests following installation in New York. In. April 1963, a month after the supplemental agreement was executed, the appellant shipped the machines, f. o.b. Chicago, directed to the plaintiff’s plant in Lynbrook
The plaintiff, following its acceptance of the machines, discovered certain alleged defects, on the strength of which this action was commenced in October 1963, pursuant to CPLR 302 and 313, by service of the summons and complaint on the appellant in Illinois. The latter challenged the court’s jurisdiction over its person by a motion to dismiss the complaint (CPLR 3211, subd. [a], par. 8). The court at Special Term denied the motion, the Appellate Division, First Department, unanimously affirmed the resulting order and the appeal is before us by leave of the Appellate Division on a certified question.
The appellant does not dispute that a single transaction in New York, out of which the cause of action has arisen, may satisfy the requirement of the transaction of business provision (CPLR 302, subd. [a], par. 1). The nub of its argument seems to be that, if the contract was not actually made in New York, its activities in this State preliminary and subsequent to the execution of the contract cannot be regarded as amounting to the transaction of “ business ” under the statute. We find no merit in this contention.
In enacting section 302, the Legislature chose not to fix precise guidelines, as other states have done, so as to draw within the jurisdictional reach of the New York courts only contracts “made within this State ” (Md. Ann. Code, art. 23, § 92, subd. [d]) or contracts “made in this State or to be performed in this State” (N. C. Gen. Stat., § 55-145, subd. [a], par. [1]) or contracts “to be performed in whole or in part by either party in [this State] ” (Minn. Stat. Ann., § 303.13, subd. 1, par. [3]; Tex. Rev. Civ. Stat. Ann. [Vernon], art. 2031b, § 4; Vt. Stat. Ann., tit. 12, § 855). The Advisory Committee which drafted the section took cognizance of such statutes in its report (N. Y. Advisory Comm. Rep. [N. Y. Legis. Doc., 1958, No. 13], pp. 39-40) and decided, instead, to follow the broad, inclusive language of the Illinois provision, adopting as the criterion the “ transact [ion of] any business within the state ”. The design
The activities in which the appellant engaged in this State were assuredly adequate to meet the liberal statutory criterion. They comprised substantial preliminary negotiations through high-level personnel during a period of some two months; the actual execution of a supplementary contract; the shipment for use here, subject to acceptance following delivery, of two specially designed machines, priced at the not inconsiderable sum of $118,000; and the rendition of services over a period of some three months by two of the appellant’s top engineers in supervising the installation and testing of the complex machines.
It follows that the courts below were fully justified in sustaining jurisdiction over the appellant Barnes & Reineclce.
Feathers v. McLucas
Mr. and Mrs. Feathers, the plaintiffs in this case, brought suit to recover for serious personal injuries and property damage sustained in July 1962 as a result of an explosion on a public highway near their home in Berlin, New York, of a tractor-drawn steel tank, en route from Pennsylvania to Vermont, which contained highly flammable liquefied propane gas. The tank had been manufactured in Kansas in 1957 by the appellant, The Darby Products of Steel Plate Corporation (sued as The Darby Corporation), a Kansas company, under a contract with the Butler Manufacturing Co., a Missouri corporation, presumably with knowledge that the latter would mount the tank on a wheelbase and then sell it to E. Brooke Matlack, a Pennsylvania corporation, which operated as a licensed interstate carrier in Pennsylvania and several other states, including New York. All three companies were named among the defendants sued, the complaint charging Darby with negligence and breach of warranty in the manufacture of the tank.
There being no showing—indeed, not even a claim—that the appellant transacted any business in this State, within the purview of paragraph 1 of subdivision (a) of CPLR 302, the case necessarily turns on the construction to be accorded paragraph 2. More particularly, we must ascertain whether the facts of the case satisfy the standard of paragraph 2 that the defendant be shown to have “ commit [ted] a tortious act within the state ”.
The tortious act charged against the appellant — that it improperly designed and assembled the tank—indisputably occurred in the out-of-state manufacturing process in Kansas. Nevertheless, the Appellate Division sustained jurisdiction on the strength of the resulting injury in this State, theorizing that ‘ ‘ the Legislature did not intend to separate foreign wrongful acts from resulting forum consequences ”, and it went on to say—directing its attention to the requirements of Federal due process — that section 302 “merely codified the minimum contacts test ” laid down by the Supreme Court decisions.
However, the question presented is not — as the Appellate Division intimated it was by its reference to ‘ ‘ minimum contacts”'—whether the Legislature could constitutionally have
The language of paragraph 2 — conferring personal jurisdiction over a nondomiciliary “ if, in person or through an agent, he * * * commits a tortious act within the state” — is too plain and precise to permit it to be read, as has the Appellate Division, as if it were synonymous with ‘ ‘ commits a tortious act tvithout the state which causes injury within the state.” The mere occurrence of the injury in this State certainly cannot serve to transmute an out-of-state tortious act into one committed here within the sense of the statutory wording. (See Atkins v. Jones & Laughlin Steel Corp., 258 Minn. 571, 579-580; Rufo v. Bastian-Blessing Co., 405 Pa. 12, 20; Hellriegel v. Sears Roebuck & Co., 157 F. Supp. 718, 720-721.) Any possible doubt on this score is dispelled by the fact that the draftsmen of section 302 pointedly announced that their purpose was to confer on the court “ personal jurisdiction over a non-domiciliary whose act in the state gives rise to a cause of action ” or, stated somewhat differently, ‘ to subject non-residents to personal jurisdiction when they commit acts within the state”. (See N. Y. Advisory Comm. Rep. [N. Y. Legis. Doc., 1958, No. 13], pp. 37, 39; emphasis supplied.) Having in mind the plain language of the statute and the expressed design of those who drafted it, we deem unreasonable the interpretation urged upon us by the plaintiffs.
Our attention is directed to the broad interpretation accorded in Gray v. American Radiator & Sanitary Corp. (22 Ill. 2d 432) to the similarly worded provision of the Illinois statute — relating to the commission of a tortious act within the state — on which paragraph 2 of subdivision (a) of section 302 was modeled. Although our analysis of New York’s statute and its legislative history demonstrates that reliance on the Gray case is misplaced, we deem it desirable to examine its underlying rationale in view of the emphasis given the decision by the appellants in this case and in Singer v. Walker (infra, p. 464 et seq.). In Gray, an Illinois resident, injured in that state as a result of an explosion of a water heater which had, in the court’s words, found its way into Illinois “ in the course of
We find this argument unconvincing.
Beading the New York statute, as we do, to require á showing that the nondomiciliary committed a tortious act in this State, we need not pass upon the constitutional question raised by the appellant or consider whether the due process requirement of “ minimum contacts ” with the forum state would be satisfied "by evidence that the injury occurred here and that the appellant presumably knew that its product (the tank) might ultimately reach New York in the course of its use by an interstate carrier or trucker. (See, e.g., Hanson v. Denckla, 357 U. S. 235, 253, supra; Dooly v. Payne, 326 F. 2d 941; O’Brien v. Comstock Foods, 123 Vt. 461, supra.)
In sum, then, it is our conclusion, based not only on the plain language of the statute but on its legislative history, that paragraph 2 of subdivision (a) of section 302 covers only a tortious act committed (by a nondomiciliary) in this State. Any plea for further expansion of its scope, however desirable such expansion may seem, is a matter for the Legislature rather than the courts. It follows, therefore, that, since the tortious act charged-against the appellant Darby was committed, if at all, in Kansas and since, concededly, that company transacted no business whatsoever in New York, no basis exists in the present case for subjecting it to the jurisdiction of the courts of this State.
Singer v. Walker
The complaint alleges that in April of 1960 Michael Singer, then 10 years old and a resident of this State, was seriously injured when a geologist’s hammer which he was using in
Service of process on the appellant in an action brought in this State prior to the enactment of section 302 was set aside on the ground that it was not “ doing business ” in New York under the jurisdictional standards then applied by our courts. (Cf. Simonson v. International Bank, 14 N Y 2d 281, supra.) The present action was brought, after the effective date of section 302, by service of the summons and complaint on Estwing in Illinois (CPLR 313). Its motion to dismiss the complaint on the ground that the court had not acquired personal jurisdiction (CPLR 3211, subd. [a], par. 8) was granted at Special Term “ [s]ince the tortious act complained of did not take place in this state or arise * * * [from] any transaction of business by defendant in this state ”. The Appellate Division, First Department, taking a different view, reversed ‘ ‘ on the law ’ ’ and denied the motion, holding that the cause of action was one arising from the commission of a tortious act in the State under paragraph 2 of subdivision (a) of section 302.
Our detailed analysis of that provision in Feathers v. McLucas (supra, pp. 458-464) and of paragraph 1 in Longines-Wittnauer v. Barnes & Reinecke (supra, pp. 455-458) permits us to be brief in treating this third case. And we note again that we deal with the case in the light of the statutory provision as it actually reads and not as it could, perhaps, have been written.
Manifestly, the tortious acts attributed to the appellant in the manufacture and labeling of the hammer occurred at the place of manufacture in Illinois and, as in Feathers, are wholly insufficient to satisfy the requirement of paragraph 2 that the
However, the question remains whether jurisdiction may be upheld under paragraph 1 on the ground that the appellant “ transact[ed] * * * business within the state ” and that the pleaded cause of action is one " arising ’ ’ therefrom. It is clear that paragraph 1 is not limited to actions in contract; it applies as well to actions in tort when supported by a sufficient showing of facts. (See N. Y. Advisory Comm. Rep. [N. Y. Legis. Doc., 1958, No. 13], p. 39; see, also, Notes of Commissioners on Uniform State Laws, Uniform Laws Ann., vol. 9B [Supp. 1964], p. 78.)
The record, although conflicting in some respects, does establish certain facts as to which there is no substantial dispute — namely, that the appellant has shipped substantial quantities of its products into this State as the result of solicitation here through a local manufacturer’s representative and through catalogues and advertisements and that the injury-causing hammer, purchased from a New York dealer, was one of such products. The Appellate Division, in view of its conclusion
We hold that the appellant’s activities in this State are sufficient to satisfy the statutory criterion of transaction of business as well as the constitutional requirement of “ minimum contacts ”. (See International Shoe Co. v. Washington, 326 U. S. 310, 319-320, supra; McGee v. International Ins. Co., 355 U. S. 220, 223, supra.) For the reasons we gave in rejecting a similar contention in the Longines-Wittnauer case (supra, pp. 456, 458), we do not deem it determinative, as urged by the appellant, that the formal execution of its sales contracts may have occurred in Illinois rather than New York. Nor is it a controlling consideration that the actual injury happened to take place in Connecticut, since the cause of action asserted is clearly one “arising from” the purposeful activities engaged In by the appellant in this State in connection with the sale of its products in the New York market.
In sum, then, the Appellate Division was in error in holding paragraph 2 applicable; nevertheless, on the strength of paragraph 1, we affirm its order sustaining jurisdiction over the appellant. / .......
1. In Longines-Wittnauer v. Barnes & Reinecke, the order of the Appellate Division should be affirmed, wiah costs, and the certified question answered in the affirmative'.
2. In Feathers v. McLucas, the order of thd Appellate Division should be reversed, the order of SpeciaLTerm reinstated, with costs in this court and in the Appellate Division, and the certified question answered in the negative.
3. In Singer v. Walker, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. /
. The foreign corporation in McGee maintained no office or agent in the forum state and had apparently never solicited or done any business there apart from writing the policy in question (355 U. S., at p. 222).
. See N. Y. Advisory Comm. Rep. (N. Y. Legis. Doc., 1958, No. 13), pp. 37-41; see, also, Senate Finance Comm. Rep. (N. Y. Legis. Doc., 1961, No. 15), pp. 7-10, 66-67.
. 'The entire text of subdivision (a), the portion of the statute with which we are concerned, reads as follows:
■ “ (a) Acts which are the basis of jurisdiction. A court may exercise -personal jurisdiction over any non-domieiliary, 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; or
“ 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
“ 3. owns, uses or possesses any real property situated within the state.”
. Since section 302 rests not on any theory of implied consent on the part of the defendant to: submit to this State’s jurisdiction if he commits acts herein but, rather, on New York’s inherent power to exercise jurisdiction over a nonresident defendant who has the requisite minimal contacts with it (see N. Y. Advisory Comm. Rep. [N. Y. Legis. Doc., 1958, No. 13], pp. 39-41; see, also, 1 Weinstein-Ivorn-Miller, -N. Y. Civ. Prac., par. 302.0-1), the decisions — to which the appellants point — denying retroactive effect to statutes predicated on a theory of implied consent, such as the original nonresident motorist statutes (see, e.g., Kurland v. Chernobil, 260 N. Y. 254, 257; Gruber v. Wilson, 276 N. Y. 135, 140), are not here in point.
. While by no means controlling, it is worthy of some note that the decisions interpreting the Illinois statute—on which, as we have noted, section 302 is modeled—have held that the place of contracting is not the exclusive criterion, and that the requisite transaction of business by the nonresident defendant within the forum may consist of such activity on his part as engaging in preliminary negotiations for the contract or in subsequent acts in furtherance thereof, the issue turning, in essence, on the totality of the defendant’s activities within the forum. (See Kropp Forge Co. v. Jawitz, 37 Ill. App. 2d 475, 481; Berlemann v. Superior Distr. Co., 17 Ill. App. 2d 522; National Gas Appliance Corp. v. AB Electrolux, 270 F. 2d 472, cert. den. 361 U. S. 959; Magnaflux Corp. v. Foerster, 223 F. Supp. 552; but cf. Grobark v. Addo Mach. Co., 16 Ill. 2d 426; see, also, Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U. of Ill. L. Forum 533, 566-579.)
. We do no more than note the added fact that the contract itself expressed the agreement of the parties that it was to be regarded as having been made in New York and as governed by New York law. (Cf. National Rental v. Szukhent, 375 U. S. 311, 315-316.)
. It was the Appellate Division’s conclusion that the “minimum contacts” test was satisfied by the showing that the tank, with its load of flammable liquid, was “ an instrumentality dangerous to life and property, if defectively constructed”, and that the appellant had “knowledge” that the tank was designed for ultimate use by a Pennsylvania carrier in interstate commerce and “ could be expected reasonably to foresee that its acts, if wrongful, might well have potential consequences in adjoining New York.”
. See, e.g., N. Y. Law Rev. Comm. Study, Service of Process on Foreign Corporations (N. Y. Legis. Doc., 1959, No. 65[C]), p. 17 et seg.; Foster, Expanding Jurisdiction Over Nonresidents, Wis. Bar Bull. Supp., Oct. 1959, pp. 15-20; Reese, Judicial Jurisdiction Over Non-Residents, 13 Record of N. Y. C. Bar Assn., 139, 149-153; Reese & Galston, Doing An Act or Causing Consequences as Bases of Judicial Jurisdiction, 44 Iowa L. Rev. 249; see, also, 1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 302.10; Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U. of Ill. L. Forum 533, 544-560.
. See, e.g., Conn. Gen. Stat. Ann., § 33-411, subd. (c), par. (3); Mont. Rules Civ. Pro., rule 4, subd. (B), par. (1), cl. (b); N. C. Gen. Stat., § 55-145, subd. (a), par. (3); Wis. Stat. Ann., § 262.05, subd. (4). The Connecticut statute, for instance, authorizes the exercise of jurisdiction over a foreign corporation, not otherwise transacting business in the forum, in any action arising out of the production, manufacture or distribution of goods in another state with the reasonable expectation of their being used or consumed in the forum state.
. See statutes cited, supra, n. 9.
. See N. Y. Law Rev. Comm. Rep. (N. Y. Legis. Doc., 1959, No. 65[C]), p. 3. The Law Revision Commission in 1959 proposed that section 229-a of the Civil Practice Act be amended to provide for jurisdiction over foreign corporations, not otherwise doing business here, where the action “ arises out of * * * (e) Commission of any act resulting in this state * * * in injury to person or property, if the corporation * * * should reasonably have expected that the act would have consequences in this state; (d) Production [or] manufacture * * * of goods * * * where the goods * * * are used * * * or resold in this state * * * and the corporation * * * should reasonably have expected that they would be so used * * » [or] resold ”.
. See Uniform Interstate and International Procedure Act, § 1.03, subd. (a), Uniform Laws Ann., vol. 9B (Supp. 1964). The model statute drafted by the Commissioners on Uniform State Laws significantly differentiates between a case in which the tortious injury was committed “by an act or omission in this state” and one where such injury was committed “by an act or omission outside this state ”; in the latter situation, the statute requires, as an additional condition for the exercise of jurisdiction, that there be a showing that the nonresident defendant “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state ”. (Uniform Interstate and International Procedure Act, § 1.03, subd. [a], pars. [3], [4]; see, also, Va. Code Ann., § 8-81.2, subd. [a], pars. [3], [4].)
. See, e.g., Minn. Stat. Ann., § 303.13, subd. 1, par. (3); Tex. Rev. Civ. Stat. Ann. (Vernon), art. 2031b, § 4; Vt. Stat. Ann., tit. 12, § 855. It has been held that such a statute—based on the commission within the state of the “tort in whole or in part”—is distinguishable from a statute, such as paragraph 2 of subdivision (a) of section 302, which requires the commission of the “tortious act” within the state, and, unlike the latter legislation, is sufficiently broad to confer jurisdiction in a case involving an out-of-state tortious act which results in injurious consequences within the forum state. (See, e.g., Atkins v. Jones & Laughlin Steel Corp., 258 Minn. 571, 579-580, supra.)
. It is noteworthy that, prior to the decision in Gray, the Federal courts in Illinois had given a contrary interpretation to the statute, holding, in accordance with its plain language, that the provision was not meant to sanction jurisdiction over a nonresident manufacturer whose wrongful act outside the state caused an injury within the state. (See Hellriegel v. Sears Roebuck & Co., 157 F. Supp. 718, 720-721, supra; Trippe Mfg. Co. v. Spencer Gifts, 270 F. 2d 821, 823; Insull v. New York World-Tel. Corp., 273 F. 2d 166, 171.)
. The Illinois court, seeking to bolster its decision, further declared that “it [was] a reasonable inference that [the defendant’s] commercial transactions * * * result[ed] in substantial use and consumption in this State” (22 Ill. 2d, at p. 442). If, as was thus assumed, there were substantial sales of the defendant’s product within the State of Illinois, that factor might have served to support a finding that jurisdiction existed on the basis of the “ transaction of business” provision (infra, pp. 466-467) but it has no relevance on whether the defendant committed a tortious act within the state.
. Quite obviously, eases such as Thomas v. Winchester (6 N. Y. 397), Smith v. Peerless Glass Co. (259 N. Y. 292) and Greenberg v. Lorenz (9 N Y 2d 195) —cited in the concurring opinion of the Chief Judge (pp. 471-472) — which deal solely with the question of “ liability ”, have nothing to do with the problem of “ jurisdiction ”. As we have already made clear in our discussion of the Feathers case (supra, pp. 459-460), we are concerned on these appeals only with, the question of the court’s jurisdiction over the defendant and not at all with the issue of its liability.
Concurrence Opinion
I concur in Judge Fuld’s opinion in Longines-Wittnauer Watch Co. v. Barnes & Reinecke and in the result in the other two cases. In Feathers v. McLucas, I agree that CPLR 302 is not broad enough to confer jurisdiction under the facts of that case, but I also consider it to be
In Singer v. Walker, the liability of the defendant, if any, is - likely to depend upon the extent to which the courts of our State adopt the principles of the new legal doctrine known as products liability. Liability under that doctrine depends upon whether the manufacturer\of this geologist’s hammer can be subjected to damages for introducing this appliance with or without fault into the stream of commerce, with the reasonable anticipation that it would be resold in New York State (MacPherson v. Buick Motor Co., 217 N. Y. 382; see, also, Gillam, Products Liability in a Nutshell, 37 Ore. L. Rev. 119, 153; Prosser, The Assault Upon the Citadel [Strict Liability to the Consumer], 69 Yale L. J. 1099, 1106; Strict Products Liability and the Bystander, 64 Col. L. Rev. 916, 928; James, Products Liability II, 34 Tex. L. Rev. 192, 194, n. 10; Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L. J. 499; Morris, Hazardous Enterprises, 61 Yale L. J. 1172; Comments, 9 Vill. L. Rev. 174; 49 Corn. L. Q. 354; Reed, Products Liability and
Concurrence Opinion
In Singer v. Walker, I concur for affirmance but I emphatically disagree with the majority’s holding that these papers do not charge the commission by defendant of a tortious act within this State. To my eye the record plainly establishes not one but both bases of jurisdiction described in CPLR 302, that is, that defendant transacted business within this State within the meaning of paragraph 1 of subdivision (a), and also that he committed a tortious act within this State under paragraph 2 of subdivision (a).
The damage being done by this decision is not to the plaintiff and his cause but to the second part of section 302 (subd. [a], par. 2: ‘ ‘ commits a tortious act within the state”) which is being given a restrictive meaning not required or justified, contrary to the plain language of the statute itself and its evident purpose and to the relevant decisions in this court and in courts of other states.
The statutory language (302, subd. [a], par. 2), “ commits a tortious act within the state ’ ’, is taken verbatim from Illinois law (Ill. Rev. Stat., ch. 110, § 17). It has the same meaning as the phrases “ tortious conduct ” in the Connecticut and North Carolina statutes (Conn. Gen. Stat. Rev., § 33-411, subd, [c] [1959]; N. C. Gen. Stat. § 55-145, subd. [a], par. [4] [1955]) and “ part of a tort ” in the Minnesota, Texas, Vermont and West Virginia laws (Minn. Stat. Ann., § 303.13, subd. 1, par. [3] [1964 Supp.]; Tex. Civ. Stat., art. 2031b, § 4 [1959]; Vt. Stat. Ann., tit. 12, § 855; W. Va. Code Ann. [1961], § 3083). All reflect the idea that various separate acts or omissions may. together make out a tort. For instance, the totality of an actionable tort such as
For background and illumination of the phrase “ commits a tortious act within the state ” let us look at New York decisions before section 302 was adopted. The idea that sending into the market, by a manufacturer, a dangerous product or one carelessly labeled is a tortious act and part of an actionable tort goes way back in this State’s decisions to Thomas v. Winchester
The cases from other states with- statutes similar to ours apply the meaning and application we are suggesting to the “ tortious act ” and “ tort in whole or in part ” language (Gray v. American Radiator & Sanitary Corp., 22 Ill. 2d 432, supra; Deveny v. Rheem Mfg. Co., 319 F. 2d 124; Smyth v. Twin State Improvement Corp., 116 Vt. 569; O’Brien v. Comstock Foods, 123 Vt. 461; Atkins v. Jones & Laughlin Steel Corp., 258 Minn. 571; Putnam v. Triangle Pubs., 245 N. C. 432). Rufo v. Bastian-Blessing Co. (405 Pa. 12) might seem to be more restrictive but on analysis the case turns out to be one like Feathers v. McLucas in which our court is today holding that the statute does not reach far enough to include it. I find nothing to the contrary in any of the decisions cited by appellant here, nor anything in any of our legislative material including the reports-of the Advisory Committee, to suggest that it was not the New York Legislature’s intent to apply section 302 (subd. [a], par. 2) to a situation like the one disclosed here. The order should be affirmed, with costs, and the certified question answered in the affirmative.
For about the same reasons, I vote to affirm in Feathers v. McLucas. I see no necessity or warrant for restricting the statutory language ‘ ‘ tortious act within the state ’ ’ so narrowly as to defeat the apparent legislative purpose and deprive our citizens of the intended benefits of the statutory plan.
Chief Judge Desmond and Judges Dye, Van Voobhis, Burke, Scileppi and Bebgan concur.
In Feathers v. McLucas: Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division. Question certified answered in the negative.
Judges Dye, Bubke, Scileppi and Bebgan concur with Judge Fuld; Judge Van Voobhis concurs in result in a separate opinion; Chief Judge Desmond dissents and votes to affirm.
In Singer v. Walker: Order affirmed, with costs. Question certified answered in the affirmative.
Judges Dye, Bubice, Scileppi and Bebgan concur with Judge Fuld; Judge Van Voobhis and Chief Judge Desmond concur in separate opinions.
