American Wooden-Ware Co. v. Stem

• Decision Date: 14 July 1894
• Citation: 63 F. 676
• Parties: AMERICAN WOODEN-WARE CO. v. STEM et al.
• Court: U.S. District Court — Southern District of New York

63 F. 676

AMERICAN WOODEN-WARE CO. v. STEM et al.

United States Circuit Court, S.D. New York.

July 14, 1894

This was an action by the American Wooden-Ware Company against Arthur Stem and the Oval Wood-Dish Company. Motion to vacate service of summons. The papers on this motion disclosed substantially the following state of facts:

The action was originally commenced in the supreme court for the city and county of New York by the service of a summons upon defendant company's treasurer while temporarily within the state in attendance on United States court in charge of one of the company' causes, and in expectation of testifying as a witness. Defendant company appeared on motion to vacate said service on the circumstances stated, but said motion was denied. Thereafter defendant company removed the cause to the United States circuit court, and there renewed the motion upon additional facts. The papers before the court disclosed that prior to the action the defendant company had bought in, on execution sale, a stock of goods belonging to its judgment debtor, and sold the same to various customers in the regular course of business, through an agent especially appointed for that purpose, and residing in the state of New York. Also that the defendant company had for many years previously obtained in said state orders for its goods through a traveling salesman resident in Ohio, but that the company had no office or regular place of business, not did it transact business within the state of New York, except as aforesaid.

Cited Good Hope Co. v. Railway Barb-Fencing Co., 22 F. 635 637; Golden v. Morning News, 42 F. 112; Atchison v. Morris, 11 F. 582; McGillin v. Claflin, 52 F. 657; Ahlhauser v. Butler, 50 F. 705; Bentlif v. Finance Corp., 44 F. 667.

Cited Bryant v. Thompson, 27 F. 881, 883; Duncan v Gegan, 101 U.S. 812; Estes v. Belford, 22 F 275; Davis v. Railway Co., 25 F. 788; Carrington v. Railroad Co., 9 Blatchf. 468, 469, Fed. Cas. No. 2,448; Sweeney v. Coffin, 3 Am.Law T.Rep.U.S.Cts. 18, Fed. Cas. No. 13,686; Jones v. Andrews, 10 Wall. 327; Pope v. Manufacturing Co., 87 N.Y. 137; Ex parte Schollenberger, 96 U.S. 377.

Walter D. Edmonds, for defendant company, appearing specially for the purpose of the motion.

Edward Schenck, for complainant.

LACOMBE Circuit Judge.

This case is within the principle of Good Hope Co. v. Railway Barb-Fencing Co., 22 F. 635; Golden v. Morning News, 42 F. 112....