Feathers v. McLucas

• Decision Date: 21 July 1964
• Citation: 21 A.D.2d 558,251 N.Y.S.2d 548
• Parties: John FEATHERS and Ethel Feathers, Plaintiffs-Appellants, v. Elizabeth McLUCAS, as Administratrix of the Estate of Robert J. McLucas, deceased, E. Brooke Matlack, Inc., Phillips Petroleum Company, Butler Manufacturing Co., and Hartford Steam Boiler Inspection and Insurance Company, Defendants. The Darby Corporation, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 548

251 N.Y.S.2d 548

21 A.D.2d 558

John FEATHERS and Ethel Feathers, Plaintiffs-Appellants, v. Elizabeth McLUCAS, as Administratrix of the Estate of Robert J. McLucas, deceased, E. Brooke Matlack, Inc., Phillips Petroleum Company, Butler Manufacturing Co., and Hartford Steam Boiler Inspection and Insurance Company, Defendants The Darby Corporation, Defendant-Respondent.

Supreme Court, Appellate Division, Third Department.

July 21, 1964.

William H. Ivimey, Hoosick Falls, for plaintiffs-appellants.

Dugan, Casey, Burke & Lyons, Albany (William J. Pentak, Albany, of counsel), for defendant-respondent.

Before GIBSON, P. J., and HERLIHY, REYNOLDS and AULISI, JJ.

PER CURIAM.

The question presented on this appeal is whether personal jurisdiction of defendant, the Darby Corporation, incorporated under the laws of the State of Kansas, the preliminary objection as to its misnomer having been withdrawn, was obtained under subdivision 2 of § 302(a) of the Civil Practice Law and Rules by the service of the summons and complaint on its president in that State on September 4, 1963. Upon allegations that it had never engaged in any business activity and maintained no facilities for the conduct of such in this State respondent moved for an order setting aside the service and dismissing the complaint as to it on the ground that it was not amenable to the process of our courts. Special Term granted the motion and the plaintiffs have appealed.

On July 25, 1962 while enroute from Pennsylvania to Vermont via the hamlet of Berlin in this State a tank trailer loaded with liquefied petroleum gas allegedly reptured and exploded on a public highway located therein, as the result of which plaintiffs sustained the injuries and damages for which recoveries are sought on the theories of negligence and the breach of a warranty resulting in harm. The cargo vessel was owned by the defendant, E. Brooke Matlack, Inc., a Pennsylvania corporation and a licensed interstate carrier engaged in extensive transportational activities in various States including adjacent New York. It had been manufactured in 1956 by the defendant Darby at its plant in Kansas City under a contract with the defendant, Butler Manufacturing Co., which upon delivery mounted it on wheels and thereafter sold it to the defendant owner. Liability is asserted against Darby upon the predicate that the tank was faultily designed and defectively fabricated.

The newly enacted statute authorizes judicial jurisdiction over an absent non resident defendant where a cause of action arises from the commission of a tortious act within the State. We think that in expanding the State's in personam jurisdiction over nondomiciliaries the Legislature did not intend to separate foreign wrongful acts from resulting forum consequences and that the acts complained of here can be said to have been committed in this State. (Restatement 2d, Conflict of Laws, Tent. Dr. #3 [1956], § 91a; cf. id. § 84 incl. Comments; Ehrenzweig, Conflict of Laws, pp. 114-118; 1 Weinstein-Korn-Miller, N.Y. Civ.Prac. par. 302.10; Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761; Conklin v. Canadian-Colonial Airways, 266 N.Y. 244, 248, 194 N.E. 692, 693.)

To satisfy the requirements of Federal due process a nonresident defendant must have such 'minimum contacts' within the territory of the forum 'that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'' and 'make it reasonable * * * to require the corporation to defend the particular suit which is brought there. * * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.' Jurisdiction of a State may be extended over a foreign corporation where 'single or occasional acts * * * because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit' on causes of action arising therefrom. (International Shoe Co. v. Washington, 326 U.S. 310, 316-319, 66 S.Ct. 154, 90 L.Ed. 95; see, also, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223.) The single act statute has merely codified the minimum contacts test. The amount and king of activities...