117 Misc. 474 | N.Y. Sup. Ct. | 1921
This is a motion by defendant to (1) vacate the summons herein and the service thereof within the state; (2) to vacate and set aside a warrant of attachment; (3) to vacate a levy made under the warrant of attachment, and (4) to vacate the service of the summons- and complaint upon the defendant without the state. Plaintiff is a non-resident and defendant is a foreign corporation. It appears that the alleged cause of action of plaintiff did not arise in the state of New York and that defendant is not doing business here. Though process was served upon an officer of defendant while he was in this state, defendant asserts there is no basis for finding that the said officer was here on business of defendant or that it was doing business within this state. That much must be conceded. It also asserts that the action affects the title to real property situated without the state; but that assertion is without merit. The action is to recover payments under a contract between the parties. Its subject matter is not the title to real property, even conceding that collaterally it may involve the same, and this does not appear from the affidavits. Defend- * ant’s argument is based mainly upon the contentions (a) that the court cannot take jurisdiction of the action; (b) that it ought to decline to take such jurisdiction, and (c) that there was not within the state any property of defendant on which the attachment could be levied. Plaintiff is a citizen of Ecuador. Defendant is a corporation organized under the laws of the dominion of Canada. Plaintiff declares upon an alleged breach of a contract which was made between the parties and executed in the state of New York, but which contains the following provision: ‘ ‘ First. It is agreed that while for convenience this agreement is signed by the parties in the City of New York, United States of America, it should be considered and held
Ordered accordingly.