Partola Mfg. Co. v. Norfolk & W. Ry. Co.

250 F. 273 | S.D.N.Y. | 1918

MAYER, District Judge

(after stating the facts as above). It is unnecessary to consider several points raised by both parties because the motion can be disposed of by determining whether or not defendant was, on April 25, 1918, doing business within the state of New York, in the sense which would subject it to the jurisdiction of this court.

[1] Although the cause was originally brought in the New York Supreme Court and removed here, it is now settled that all jurisdictional objections may be made in this court after removal. Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 30 Sup. Ct. 125, 54 L. Ed. 272; Toledo Railways, etc., Co. v. Hill, 244 U. S. 49, 37 Sup. Ct. 591, 61 L. Ed. 982.

[2, 3] From the affidavits presented it seems to me that whatever in the way of “doing business” had theretofore gone on had ceased on April 25, 1918, as the result of the taking over of the railroads by the government. It may be well, however, to consider, in addition, whether the acts of defendant constituted the much mooted “doing business.” The solution of this question depends practically upon the consideration of the meaning and effect of a limited number of leading cases. The facts in this case seem to come within the doctrine of Green v. Chicago, Burlington & Quincy Ry. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916, which decision seems recently to have been reaffirmed in principle in Enterprise, etc., Railway Equipment Co. v. Norfolk & Western Ry. Co., 245 U. S. 631, 38 Sup. Ct. 64, 62 L. Ed. —. In St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77, the railway company did certain additional things, such as attending to claims presented for settlement and negotiating in respect thereof, and in such case the court held that the company was doing business, stating:

“Here, then, was an authorized agent attending to this and presumably other matters of a kindred character, undertaking to act for and represent the company, negotiating for it and in its behalf declining to adjust the claim ruado against it. In this situation we think this was the transaction of business in behalf of the company by its authorized agent in such manner as to bring it within the district of New York, in which it was sued, and to make it subject to the service of process there.”

No such situation is here presented, and, as pointed out in St. Louis Southwestern Ry. Co. v. Alexander, supra, it is the duty of the court to decide each case upon its own facts.

In International Harvester Co. v. Kentucky, 234 U. S. 579, 34 Sup. Ct. 944, 58 L. Ed. 1479, the International Harvester Co. so handled its business that there was a continuous course of shipment of the harvester company’s machines into Kentucky. In other words, as the result of solicitation of business and method of business, the court was satisfied that the presence of the corporation within Kentucky necessary to the service of process was shown, “when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the state, although the business transacted may be entirely interstate in its character.”

The court nevertheless regarded the question involved as a close one. It distinguished the International Harvester Co. Case from the Green Case, supra, reiterating, “we have no desire to depart from that decision which,” the court added, “was an extreme case.” The court also said, “In ihe case now under consideration, there was something more than mere solicitation.”

In Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915, the facts were in substance the same as in the International Harvester Co. Case, and, after a careful and learned review, the court held that service upon the defendant foreign corporation was good.

In the case at bar, however, there are no such facts as were presented in the International Harvester Co. and Tauza Cases, 'and the facts seem to be well within the principle of the Green Case. While, perhaps, the question is close, I conclude that this court is without jurisdiction, and therefore that the motion should be granted.