Boryk v. deHavilland Aircraft Co., 301
| Decision Date | 16 February 1965 |
| Docket Number | Docket 29066.,No. 301,301 |
| Parties | Helen BORYK, as Administratrix of the Estate of William Boryk, Jr., Deceased, Helen Boryk, individually, and as surviving widow of William Boryk, Jr., Helen Boryk, as Natural Guardian of Stephanie Boryk, an infant, Plaintiff-Appellant, v. The deHAVILLAND AIRCRAFT CO., Ltd., Defendant-Respondent, and Aerolineas Argentinas and deHavilland Aircraft, Inc., Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward M. O'Brien, New York City (Speiser, Shumate, Geoghan & Law, New York City, on the brief), for plaintiff-appellant.
John F. Byrne, New York City (Mendes & Mount, New York City, on the brief, Benjamin E. Haller, New York City, of counsel), for defendants-appellees.
Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.
Plaintiff's decedent was killed in an airplane crash in 1961. In 1962 she brought this wrongful death action against the airline (Aerolineas Argentinas), the manufacturer of the plane, deHavilland Aircraft Co., Ltd. (a British corporation referred to as "Ltd."), and its subsidiary, deHavilland Aircraft, Inc. (a Delaware corporation authorized to do business in New York and referred to as "Inc."). Service on Ltd. was made in New York on Ian Fossett, President of Inc. Ltd, appeared specially, moving to set aside service and to dismiss the complaint as to it. Judge Bryan granted the motion, 228 F.Supp. 528 (S.D.N.Y. 1964), and plaintiff moved for reargument based on a subsequent decision by the Appellate Division of the New York Supreme Court, TACA Int'l Airlines, S. A. v. Rolls-Royce of Eng., Ltd., 21 A.D. 2d 73, 248 N.Y.S.2d 273 (1st Dep't 1964). Finding that case not controlling, Judge Bryan denied reargument and entered final judgment pursuant to Fed.R.Civ.P. 54(b) dismissing the complaint against Ltd. Plaintiff appeals.
The question is whether under New York law Ltd. was "doing business" in New York to such an extent as to make it amenable to New York's jurisdiction, and, if it was so amenable, whether service was made on a proper "managing agent." The facts are not significantly in dispute and have been fully developed. Compare Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964). To Judge Bryan's thorough findings, 228 F.Supp. at 530-533, only a brief summary need be added.
With Fossett as its representative, Ltd. began selling airplanes in this country in 1952 and providing service and parts for them. Inc., wholly owned by Ltd. and having several of the same directors, was created in 1954. Pursuant to a 1956 service agreement under which Ltd. paid Inc. $70,000 (later $85,000) per year, Inc substantially took over the activities Ltd. had been carrying on; Inc. had already been carrying on some of the operations. However, Inc. did not and apparently could not perform many of the services specified; rather, they were performed by Ltd. employees. The service agreement was formally terminated in 1961, although Ltd. still provided employees for certain servicing. While Inc. had a few years earlier taken over performance of a lease on space at the La Guardia Airport the lease was not actually transferred to Inc. until 1956. Ltd. made no-interest loans to Inc. on terms that would be unusual between independent entities, and Inc. paid substantial portions of its income out in "dividends" to Ltd. Substantially all of Inc.'s income derives from the sale and servicing of products manufactured by Ltd. or other Ltd. subsidiaries; Inc. also sold spares for aircraft manufactured by some other British companies which, with Ltd., are members of the Hawker-Siddeley Group. A relatively insignificant amount from sales of aircraft polish accounts for Inc.'s only business not related to Ltd. Inc. places orders with Ltd. after receiving them from customers, and pays Ltd. only after receiving payment from the ultimate purchaser, to whom delivery is made by Ltd. Inc. is required by Ltd. to give warranties at least equivalent to those given by Ltd. Inc. has paid a variety of bills for Ltd. employees and officers when they have been in this country. Ltd. has an arrangement with a New York bank with respect to the payment of import duties. Inc.'s name is listed on Ltd.'s letterhead and Ltd. is listed in the World Aviation Directory as having an office in New York at Inc.'s address, Inc. being listed as Ltd.'s distributor. Separate books are maintained.
In determining what the New York Court of Appeals would do with the facts of this case, see Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963), we have a recent decision of that court not available to the trial court, namely, the affirmance of the Appellate Division's decision in TACA, 15 N.Y.2d 97, ...
To continue reading
Request your trial
-
Wells Fargo & Co. v. Wells Fargo Exp. Co.
...test of Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-46, 72 S.Ct. 413, 96 L.Ed. 485 (1952). See Boryk v. deHavilland Aircraft Co., 341 F.2d 666, 668-69 (2d Cir. 1965); Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147, 152 (5th Cir. 1954); Bomze v. Nardis Sportswea......
-
Top Form Mills, Inc. v. SOCIEDAD NATIONALE IND., ETC.
...part." Freeman v. Gordon & Breach, Science Publishers, Inc., 398 F.Supp. 519, 522 (S.D.N.Y.1975). See also Boryk v. deHavilland Aircraft Co., 341 F.2d 666, 668 (2d Cir. 1965). It may be that the facts before this court do not establish that Societa's control over Snia is "so complete that t......
-
In re McLean Industries, Inc.
...the forum for the parent by the subsidiary beyond mere solicitation, and by frequent communication between them. Boryk v. de Havilland Aircraft Co., 341 F.2d 666 (2d Cir.1965); Scanapico v. Richmond Fredericksburg & Potomac R. Co., 439 F.2d 17 (2d Cir.1970) (en banc); Tokyo Boeki (U.S.A.), ......
-
Freeman v. Gordon & Breach, Science Publishers, Inc.
...385 F.2d 116 (2 Cir. 1967), cert. denied, 390 U. S. 996, 88 S.Ct. 1198, 20 L.Ed.2d 95 (1968). 2 See, e. g., Boryk v. deHavilland Aircraft Co., 341 F.2d 666, 668 (2 Cir. 1965); Taca Int'l Airlines S.A. v. Rolls-Royce of England, Ltd., 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329 3 Gelfand ......