102 Misc. 520 | N.Y. App. Term. | 1918
Lead Opinion
The action is for the purchase price of iron goods sold by the plaintiff to the defendant. There is no question about the justness of plaintiff’s claim, and the dispute is as to whether plaintiff was doing business in this state, and whether the contract sued on was made in this state.
Plaintiff is a Pennsylvania corporation dealing in electrical specialties. It is uncontradicted that it maintains a branch office in New York city in which is located the general sales manager of the company. The branch consisted of a loft which had plaintiff’s name on signs, and also a sign “shipping department.” There were six men employed in the branch, namely, two salesmen and four others, and there was carried in the branch a stock of plaintiff’s merchandise from which, to some extent, orders were filled. Plaintiff maintained a bank account in New York for the benefit of the branch, bút carried under the name of an employee. Some payments at least were made by customers at the branch office. The branch has been maintained for three or four years. There were special letter-heads for the use of the branch. Plaintiff’s name was listed in the telephone book. From all these circumstances it appears that plaintiff was doing business in New York.
On the question of where the contract was made, plaintiff’s general sales manager, who was located in the branch in New York city, wrote defendant the
It follows that plaintiff was doing business here without having obtained a license, and therefore the judgment should be reversed, with thirty dollars costs of this appeal, and complaint dismissed, with costs in the court below.
Weeks, J., concurs.
Dissenting Opinion
It seems to me that the evidence that the plaintiff was doing business in this state was so inconclusive that the trial justice properly held that the defense was not sufficiently proven. Even if, however, we assume that the trial judge was bound to hold as a matter of law that the plaintiff was doing business in this state, I think the judgment should be reversed and a new trial ordered and the complaint should not be now dismissed. In order to make a complete defense the defendant was bound to prove not only that the plaintiff was doing business in this state but that the contract was made here. The letter signed by the defendant was addressed to the Pittsburgh Electric Specialties Company, Pittsburgh, Penn. It is in form merely an order and on its face constituted rather an offer than the acceptance of an offer. Regarded as an offer addressed to a corporation at Pittsburgh and requiring an acceptance by that corporation before it could become effective, it would show no contract made within this state. On the other
Judgment should therefore be affirmed or, if reversed, a new trial ordered, with costs to appellant to abide the event.
Judgment reversed, with costs.