59 F.Supp. 98 (S.D.N.Y. 1944), Williams v. Green Bay & W.R. Co.
| Date | 01 August 1944 |
| Docket Number | . |
| Citation | 59 F.Supp. 98 |
| Parties | WILLIAMS et al. v. GREEN BAY & W.R. CO. |
| Court | U.S. District Court — Southern District of New York |
Page 98
Unger & Pollack, of New York City (William F. Unger and Ludwig Mandel, both of New York City, of counsel), for plaintiffs.
Cadwalader, Wickersham & Taft, of New York City (Merrill M. Manning and Walter Bruchhausen, both of New York City, of counsel), for defendant.
CAFFEY, District Judge.
The defendant has made two motions. One is to set aside service of the summons and complaint on the ground that the defendant (a Wisconsin corporation) is not doing business in New York. The other is to dismiss the complaint because there is lack of jurisdiction of the subject matter, which concerns the internal affairs of the defendant.
The motions were the last item on the calendar at my recent sitting in the motion part. I was compelled to reserve decision in a considerable number of cases. So much attention was required on those having priority that time now is not available for extensive discussion in the instant case. I must content myself, therefore, with briefly indicating the reasons for my conclusions.
A suit against the defendant similar to this was brought in the Supreme Court, Kings County, New York, the short title of which is Sperling v. McGee, . . . Misc. . . . , 49 N.Y.S.2d 477. The attorneys for the plaintiffs in Sperling v. McGee do not represent the plaintiffs in the present case (originally brought in the Supreme Court, New York County, and removed to this court).
The identical question raised by the pending first motion was also raised in Sperling v. McGee. The latter was ruled against by Mr. Justice Garvin. A copy of his opinion is annexed as Exhibit A to the affidavit herein of counsel for the plaintiffs verified July 12, 1944.
After study of all the papers bearing on the instant first motion, I concur in the substance of the findings of facts set out in the opinion of Mr. Justice Garvin. I concur also in his conclusion that the defendant 'is present in the state;' that is, that in the sense of the applicable court
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decisions the defendant is and for some time past continuously has been doing business in New York. Pomeroy v. Hocking Valley Railway Co., 218 N.Y. 530, 533-536, 113 N.E. 504, and Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 266, 115 N.E. 915. Cf. Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 515-518.
The affidavits in this case add a good deal to the facts as summarized by Mr. Justice Garvin; but I do not think they materially alter the pertinent features of the situation as it stood when Sperling v. McGee was before him.
Section 229 of the New York Civil Practice Act prescribes how service in this State of a summons shall be made on a foreign corporation and designates those to whom a copy shall be delivered in order to effect the service. Among the individuals on whom subdivision 1 authorizes such service are an assistant treasurer and an assistant secretary of the corporation. Federal Rules of Civil Procedure, rule 4(d)(3) and (7), 28 U.S.C.A.following section 723c, provides that service on a foreign corporation shall be...
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