299 N.Y. 208 | NY | 1949
Whether or not defendant, a foreign corporation, was doing business in this State so as to be subject to the jurisdiction of our courts is the question certified for our determination.
The defendant is a South African importing corporation which does much of its buying in New York, but is concededly not qualified to do business here and has no branch office in this State. Plaintiff began the present action for breach of contract by serving a summons and complaint upon an officer of a New York corporation which makes purchases for defendant. Urging that such service was not effective, defendant moved to dismiss the complaint for want of jurisdiction. The motion was denied at Special Term and the Appellate Division unanimously affirmed, granting defendant leave to prosecute this appeal on the question certified.
There is, of course, no precise measure of the nature or extent of local purchasing activities which will render a foreign corporation amenable to process in this State. Each case must be decided on its own particular facts. (See Tauza v. SusquehannaCoal Co.,
Testing the record before us by those criteria, we find ample support for the conclusion of the courts below that defendant was, for jurisdictional purposes, doing business in this State.
Organized in July, 1944, to carry on a diversified business of importing, exporting, trading and distributing manufactured goods, and to act as "Manufacturers' Representatives", defendant became closely associated in its activities with a South African partnership, "F H Agencies", formed two months later. Defendant's two majority directors and stockholders were the founders of the partnership and its majority members. In addition to interlocking control, the corporation and the partnership had intertwining physical setups. Thus, defendant, styled "Frank Hirsch Distributing Co. (Pty.) Ltd.", and the partnership, called "F H Agencies", had the identical mailing address, "P.O. Box 1803, Johannesburg"; the same "Head Office" — Johannesburg; the same "branch offices" — Cape Town, Port Elizabeth, East London, Durban, Bulawayo; the same cable address — "Frahirsch"; and the same telephone numbers, shipping marks and stationery insignia.
This virtual identity assumes great significance when we turn our attention to the activities of the New York corporation upon which service was effected. That corporation, "F H Agencies New York, Inc.", was organized shortly after the formation of the two South African companies, with Walter Frank, brother of one of defendant's directors, as secretary-treasurer. It was avowedly and officially the agent of the partnership, *212 being described as its "American Office" on letterheads and business cards. In addition, the New York corporation likewise negotiated purchases for defendant, and, understandably, not only plaintiff's officers but the trade generally accepted it as defendant's local representative.
Unavoidable is the conclusion that the New York corporation acted as defendant's exclusive buying agent. There is no indication that anyone else, save defendant itself, ever negotiated any of defendant's local purchases or that the New York corporation represented any organization other than defendant and defendant's alter ego, the South African partnership. Obviously, defendant's unsubstantiated denials of its close connection with the domestic corporation — containing no details though these were peculiarly within its own knowledge — cast little doubt upon their actual relationship. (See SocietyMilion Athena v. National Bank of Greece,
We deem it worth remarking that this is not a case in which the foreign corporation's only ties with this State were through an independent resident buyer who acted for many other purchasers at the same time (see, e.g., Greenberg v. Lamson Bros. Co.,
The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and BROMLEY, JJ., concur.
Order affirmed, etc. *213