G. Benedict Corp. v. Epstein
| Decision Date | 02 June 1965 |
| Parties | G. BENEDICT CORPORATION, Plaintiff, v. Norman EPSTEIN, James K. Davis, Alfred Baker Lewis and Carol R. Epstein and Norman Epstein, as Executors of the LWT of Burton Epstein, Deceased, Defendants. |
| Court | New York Supreme Court |
Delson & Gordon, New York City (Milton R. Gleit and Richard J. Schwarzstein, New York City, of counsel), for defendant Alfred Baker Lewis.
Francis H. Trombly, Albany, for plaintiff.
Motion by the defendant Alfred Baker Lewis for an order, pursuant to CPLR 3211 (subd. [a], par. 8), dismissing the complaint herein for lack of personal jurisdiction.
The complaint alleges a cause of action in the amount of $43,416 with interest based upon a guaranty of payment of a promissory note. The note was executed in Worcester, Massachusetts on September 22, 1964 between Burton Epstein, Norman Epstein and James K. Davis, all of Worcester, as trustees of Phoenix Real Estate Trust, and the plaintiff G. Benedict Corporation, a New York corporation with its usual place of business in Albany, New York. The terms of the note specified that '[a]ll sums payable hereunder shall be payable at the Commerce Bank & Trust Company, 240 Main Street, Worcester, Massachusetts, or at such other place or places as the holder hereof shall in writing designate.' (emphasis supplied)
Executed simultaneously with the note was the said guaranty in which the three trustees in their individual capacities and the defendant Alfred Baker Lewis each: 'guarantee[d] payment and thereby waive[d] presentment, demand, notice and protest in connection with this note, and assent[ed] to the terms thereof and to any extension or postponement of the time of payment or any other indulgence * * *'. Based upon this provision, plaintiff alleges that the defendants as guarantors were notified that all payments on the note were to be made at its offices in Albany, New York, and in fact one payment on account thereof was made by the primary obligors as plaintiff's office; and that although due demand had been made, certain installments had not been paid. Judgment is thereby demanded against the defendant guarantors for the whole sum due upon the note in accordance with its terms.
Defendant Alfred Baker Lewis, who was served in the action at his residence in the State of Connecticut, argues, in moving to dismiss the complaint against him, that service was ineffectual in that he did not...
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