De Dood v. Pullman Co., 4739.

• Decision Date: 27 October 1931
• Docket Number: No. 4739.,4739.
• Citation: 53 F.2d 95
• Parties: DE DOOD v. PULLMAN CO.
• Court: U.S. District Court — Eastern District of New York

53 F.2d 95 (1931)

DE DOOD v. PULLMAN CO.

No. 4739.

District Court, E. D. New York.

October 27, 1931.

Furst, Schwartz & Schwager, of Brooklyn, N. Y., for plaintiff.

Alexander & Green, of New York City, for defendant.

BYERS, District Judge.

Defendant, appearing specially for this motion, moves, under notice dated October 16, 1931, to dismiss the action because the court is without jurisdiction.

The complaint, verified September 28, 1931, recites that the plaintiff resides in Johnstown, Pa., and that the defendant is a corporation organized and existing under the laws of Illinois and is engaged in business in this district. That the plaintiff on February 8, 1931, while a passenger in one of defendant's cars, en route from Johnstown to Providence, R. I., was injured through the negligence, as alleged, of defendant's porter, to his damage in the sum of $50,000. The geographical location of the place where the injury is said to have occurred is not stated.

Such service of process as was made occurred on October 3, 1931.

The parties were in correspondence prior to the bringing of suit, and, being unable to agree upon a sum to be paid in settlement, the plaintiff's attorneys wrote to the defendant, in part: "* * * if a satisfactory adjustment cannot be made, I should like to bring the suit in the Federal Court in New York. Will you inquire if your company is agreeable to the suit being there instituted?" The answer in material part is: "* * * we have no objection to suit being filed in New York * * *."

The plaintiff's attorneys replied, stating that they were drawing a complaint in an action to be instituted in this court, and "* * * We understand that you have no objection to the action being brought in this court * * *."

The defendant answered, giving the name and address of its New York attorneys, and later wrote: "* * * So that there may be no misunderstanding, I would prefer that the service of the summons and complaint be made in the regular manner upon our representative, Mr. R. V. Watson, District Superintendent, Pennsylvania Terminal Station, New York."

The foregoing are relied upon by the plaintiff to establish consent to the submission of the defendant to this court's jurisdiction, for the purpose of this action. While it cannot now be said that the defendant's legal representative in Chicago treated the suggestion of the plaintiff's attorneys, concerning the forum in which suit was contemplated, with that candor which might well characterize professional communications conducted...