189 A.D. 204 | N.Y. App. Div. | 1919
Defendant is a corporation, incorporated under the laws of Texas. The cause of action alleged in the complaint is on an expres's contract alleged to have been made by defendant with the plaintiff in this State, by which, in consideration of plaintiff’s procuring for the defendant a contract in writing bearing date the 6th day of March, 1916, whereby Marden, Orth & Hastings Co., Inc., a corporation organized and existing under the laws of Maine, should purchase from defendant, during the year 1916, 9,500 tons of sulphuric a.cid, the defendant agreed to pay the plaintiff a commission of $2 per ton of the sulphuric acid, to be paid in monthly installments covering the shipments made by defendant to the purchaser each month. It is alleged that the plaintiff procured the contract which was entered into between said Marden Orth & Hastings Co. and the defendant, and that the defendant shipped a small quantity of sulphuric acid, wliich was not of the kind, description or quality called for by the contract, and that the defendant wholly failed and refused to perform the contract, although the purchaser was at all times ready, willing and able to perform and to accept and pay for the sulphuric acid at the prices and according to the terms of the contract. Judgment is demanded for $19,000, being the amount of the plaintiff’s commissions on the 9,500 tons and interest thereon from the 1st of January, 1917, together with costs.
The defendant duly obtained a certificate from the Secretary of State in the year 1916, pursuant to the provisions of section 15 of the General Corporation Law, authorizing it to do business here, and its attorney on the appeal, Walter J. Vreeland, was
The summons and complaint were served by delivering two copied thereof to the Secretary of State on the 3d day of February, 1919, and by paying to him at the same time two dollars, being the statutory fee therefor. The Secretary of State forwarded one copy of the summons and complaint to the defendant at its post office address in Texas. It evidently transmitted them to Mr. Vreeland, for on the 14th of February, 1919, he wrote plaintiff’s attorneys stating that he had received them from the defendant but that he had had no opportunity of knowing the facts or looking into the merits of the case, and requesting that the defendant be given opportunity so to do by granting a reasonable extension of time. It appears that a formal stipulation extending the defendant’s time to plead to and including the 10th day of March, 1919, was signed by the attorneys for the plaintiff and by Vreeland as attorney for the defendant, on that day, and a like stipulation was signed by them further extending the time until the seventeenth day of March. On said seventeenth day of March, Vreeland as attorney for the defendant, appearing specially fpr the motion, served notice of the motion to vacate the service of the summons upon the ground that the service upon the Secretary of State was not service upon the defendant for the reason that it had withdrawn its business from the State and had no property therein and had revoked its designation of an agent. The motion was made on the summons and complaint and an affidavit made by Vreeland, stating that on or about the 1st day of July, 1917, defendant withdrew its business and property from the State and revoked its designa
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Smith, Page and Philbin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.