Opinion
October, 1920.
Walter E. Godfrey, for appellant.
Stover, Hall, Cunningham Bevier (John H. Jackson, of counsel), for respondent.
The defendant, a foreign corporation, whose agent was served in this city moved to set aside the service of a summons and complaint on the grounds that because it had no property in this state and the cause of action did not arise here, service on a managing agent was unjustified under the Code, and that defendant corporation was not doing business within the state. The challenge to the jurisdiction was sustained, resulting in the order appealed from.
Section 432, subdivision 3, of the Code of Civil Procedure reads: "If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation within the State."
It appears that the plaintiff in New York made a contract by interchange of letters whereby defendant undertook to manufacture at its factory in Ridgeway, Penn., and deliver materials to plaintiff f.o.b. Youngstown, O. At a subsequent time, by letter sent from Ridgeway, Penn., to the plaintiff in New York, defendant repudiated further performance of the contract and cancelled the same. Having been sent by mail, the carrier was but defendant's agent, and it was necessary in order to repudiate the contract to have such notice reach the plaintiff. Under the circumstances, the breach of the contract occurred in this state, and the cause of action therefore arose within the jurisdiction of our courts. Defendant's reliance upon Wester v. Casein Co. of America, 206 N.Y. 506, is misplaced, for that decision was placed upon the fact that the plaintiff there, in order to put an end to a controversy which had arisen by their own telegram, sought a reply, and made the chosen means of communication their agent to receive it.
We think furthermore that, under the authorities, the moving papers disclose that the defendant was doing business within the state. Tauza v. Susquehanna Coal Co., 220 N.Y. 259; Swift v. Matthews Eng. Co., 178 A.D. 201. We think that there was a continuous and permanent course of business transacted by defendant here. Agents here were continually employed to solicit and forward orders to defendant to be filled in its factory in Pennsylvania. Suydam was clearly the sales agent in charge of the New York office. The defendant's name appeared on the door, its name at said address in telephone directory, its letterheads state its New York office address, and its vice-president directly in one of its letters referred to it. The "fair measure of permanency and continuity" of activities appearing in the moving papers is sufficient to subject it to the jurisdiction of our courts.
The order is reversed, with ten dollars costs, and disbursements and motion denied, with ten dollars costs.
BIJUR and DELEHANTY, JJ., concur.
Order reversed, with ten dollars costs.