Elevator Supplies Co. v. Wagner Mfg. Co.
| Decision Date | 02 February 1931 |
| Citation | 54 F.2d 937 |
| Parties | ELEVATOR SUPPLIES CO., Inc., v. WAGNER MFG. CO. |
| Court | U.S. District Court — Southern District of New York |
Darby & Darby and Samuel E. Darby, all of New York City, for plaintiff.
Howson & Howson and Hubert Howson, all of New York City, for defendant.
The plaintiff having made a motion for a preliminary injunction in a patent infringement suit, the defendant moves for an order setting aside and quashing the service of subpœna and dismissing the bill of complaint for lack of jurisdiction on the ground that the defendant has no regular and established place of business in the Southern District of New York within the meaning of Judicial Code § 48 (28 USCA § 109).
The affidavit of the president of the defendant company discloses that the defendant is a corporation organized under the laws of the state of Iowa and engaged in the business of manufacturing accessories for elevators at Cedar Falls in that state. It, however, maintains an office consisting of two rooms, in charge of a sales representative in the city of New York. The company pays the rent, and has its name on the office door and in the New York telephone directory. It pays a salary and bonus to its sales representative, whose duty it is to solicit orders for elevator accessories manufactured by the defendant. He, however, has no power to bind the company by contract. All orders must be approved and accepted by the home office at Cedar Falls, Iowa. He does not pass on the credit of any customer. He is not authorized to make any collections or to receive any payments for the company. Some of the preliminary negotiations for the installation complained about were entered into by that representative, but they were continued by the president and sales manager, who came to New York for that purpose. The final order was accepted in Cedar Falls, Iowa. The materials for the equipment, except parts that were bought from other manufacturers, were manufactured in Cedar Falls. They were shipped from Cedar Falls to New York and delivered to the building in which they were installed and not to the New York office of defendant. The sales representative, with the engineer of the contractor, who ordered the signaling equipment, supervised the installation of the system on the elevators which were in the course of construction by the contractor.
The opposing affidavit states that, in addition to the sales representative in charge of the office which this defendant maintains in New York City, two or three others are employed by the defendant as salesmen and estimators to prepare estimates on proposals and to solicit business for the defendant and to do other work in the conduct of the business of the New York office; that stenographic and clerical assistants are likewise employed in said office; that all are in the employ of, and are paid by, the defendant, and that all of them use the New York office as their headquarters for carrying on their duties, being provided in said office with office equipment, desks, stationery, and business cards. The defendant's offices in New York are referred to in defendant's literature and on the business cards of its salesmen as defendant's New York branch. A working model of the defendant's electric operator and panel board having elevator signaling equipment manufactured by it are displayed in the office maintained in New York City by the defendant. The defendant has maintained offices in New York City for a number of years. It employed a superintendent of construction to take charge of the assembly of the signaling system involved in this action, as well as its installation. He was paid by the defendant and worked on the job under the supervision and direction of the sales...
To continue reading
Request your trial
-
Ruddies v. Auburn Spark Plug Co., 60 Civ. 4376.
...Co. v. Casco Prods. Corp., supra; General Radio Co. v. Superior Elec. Co., 293 F.2d 949 (1st Cir. 1961); Elevator Supplies Co. v. Wagner Mfg. Co., 54 F.2d 937 (S.D. N.Y.), aff'd per curiam, 54 F.2d 939 (2d Cir. 1931). Drake's listing in Auburn's catalogue is simply an incident of sales soli......
-
Watsco, Inc. v. Henry Valve Company
...v. Superior Electric Co., 293 F.2d 949 (1st Cir. 1961); Endrezze v. Dorr Co., supra, (alternative holding); Elevator Supplies Co. v. Wagner Mfg. Co., 54 F.2d 937 (S.D.N.Y.1931); cf. Brevel Products Corp. v. H. & B. American Corp., 202 F.Supp. 824 (S.D.N.Y.1962) (independent contractors work......
-
New Wrinkle v. Fritz
...Tobacco Co. Ltd. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann. Cas.1918C, 537; Elevator Supplies Co., Inc., v. Wagner Mfg. Co., D.C., 54 F.2d 937; Davega, Inc., v. Lincoln Furniture Mfg. Co., Inc., 2 Cir., 29 F.2d Plaintiff contends that the sale of the defendant co......
-
Ferguson v. Ford Motor Co.
...F.2d 752, certiorari denied 314 U.S. 688, 62 S.Ct. 301, 86 L.Ed. 551, or that it merely solicit business in it. Elevator Supplies Co. v. Wagner Mfg. Co., D.C., 54 F.2d 937; Erickson v. Emerson, D.C., 40 F.Supp. 844. The ultimate distribution of a manufacturer's products within the district ......