Emerson Radio & Phonograph Corp. v. Eskind
| Decision Date | 21 October 1957 |
| Citation | 32 Misc.2d 1038,228 N.Y.S.2d 841 |
| Parties | EMERSON RADIO & PHONOGRAPH CORPORATION, Plaintiff, v. Manuel M. ESKIND et al., Doing Business under the Name of Capital Radio & Television Company, Defendants. |
| Court | New York Supreme Court |
Krisel, Lessall & Dowling, New York City (Jacob Krisel, New York City, of counsel), for plaintiff.
Willkie, Owen, Farr, Gallagher & Walton, New York City (Mark F. Hughes and Kenneth J. Bialkin, New York City, of counsel), for defendants, appearing specially.
Defendant, a nonresident partnership, appears specially and moves to vacate service of process. Defendant alleges it is not doing business here and that its designation of a person or firm was ineffectual to confer jurisdiction. Plaintiff, a New York corporation, asserts that by virtue of the terms of a distributor franchise agreement defendant consented to jurisdiction when service was made in the manner therein provided.
This case differs from a companion case, decided simultaneously herewith, Sup., 228 N.Y.S.2d 839, in that plaintiff in the instant case is a resident, i. e., a New York corporation. Section 224 of the General Corporation Law gives to a resident or a domestic corporation the right to maintain an action against a foreign corporation. That right is not absolute, for even under the section it is requisite that something more exist, either by way of such foreign corporation's doing business or otherwise. While section 229-b of the Civil Practice Act, to which defendant refers, makes provision for service upon a nonresident natural person doing business within the State, it is not exclusionary in that it prohibits or invalidates a consent freely given in a transitory action between a resident and nonresident. We draw a parallel with arbitration cases.
It was the constitutional privilege of defendant, a nonresident, to remain immune to process of this State had it elected to do so, since it was not doing business here. By the same token, it could waive that privilege in its contract with a domestic corporation and consent to New York as a forum for determination of issues involving a possible money judgment. It would hardly be disputed that it could waive the question of jurisdiction by a general appearance. It has been well stated that such nonresident may make such waiver no less before than after the commencement of the proceedings and consent that a State exercise jurisdiction over him....
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