Hoard v. U.S. Paint, Lacquer & Chemical Co.
| Decision Date | 31 July 1964 |
| Citation | 253 N.Y.S.2d 89,44 Misc.2d 72 |
| Parties | Eric B. HOARD, Jr., Plaintiff, v. U. S. PAINT, LACQUER AND CHEMICAL COMPANY, Defendant. |
| Court | New York Supreme Court |
Forsyth, Forsyth & Neilon, Rochester, for plaintiff.
Nixon, Hargrave, Devans & Doyle, Rochester, for defendant.
Defendant, a non-domiciliary corporation, moves to dismiss the action on the ground that no valid service of process has been made upon it. A summons with notice was served upon the defendant in the State of Missouri. The plaintiff is a resident of the State of New York. The defendant has no offices for the doing of business in the State of New York, nor is it authorized to do business therein. It has no agents in the State of New York and maintains no offices, show rooms, warehouses or bank accounts therein. It owns no property in the State of New York.
The action is one for 'recision and damages' based on alleged fraudulent representations and warranties made by the defendant to the plaintiff in connection with the execution of a distributor's franchise agreement between the parties. The agreement in part read as follows:
'It is expressly understood that the relationship hereby created is one of independent contractor and the distributor shall not be construed an agent or employee of the company'
The contract was signed by the plaintiff in New York State and subsequently finally signed and accepted by the defendant in the State of Missouri.
Plaintiff claims that the service of the summons on the defendant corporation, a non-domiciliary in the State of New York, was made in conformity to Section 302 of CPLR of the State of New York, and hence, exercises personal jurisdiction over the defendant. Plaintiff relies particularly upon Sections (a)1 and (a)2 of that section.
If reliance were had solely upon Section (a)1, this motion would have to be granted on the authority of Jump v. Duplex Fending Corp., 41 Misc.2d 950, 246 N.Y.S.2d 864 (1964); Irgang v. Pelton and Crane Co., 42 Misc.2d 70, 247 N.Y.S.2d 743 (1964) and Fremay, Inc. v. Modern Plastic Machinery Corp., 15 A.D.2d 235, 222 N.Y.S.2d 694 (1961). The time and place of the making of a contract is established when the last act necessary for its formulation is done, and at the place where the final act is done. Fremay, Inc. v. Modern Plastic Machinery Corp., supra. In the case at bar the last act to complete the contract, to wit, signing by the defendant, was done in the State of Missouri, and hence, the contract was not made in New York. That being so, it was not 'a transaction of business within the State'. Furthermore, the plaintiff as a distributor of the goods manufactured by the defendant was not an agent of the defendant transacting business for the defendant in the State of New York, but was an independent business man selling his own merchandise which had been manufactured by the defendant. Jump v. Duplex Fending Corp., supra.
However, in its complaint dated May 5, 1964 to...
To continue reading
Request your trial
-
Trafalgar Capital Corp. v. Oil Producers Equipment
...418, 219 N.E.2d 868 (Ct.App. 1966); Schenin v. Micro Copper Corp., 272 F.Supp. 523 (S.D.N.Y.1967). But see Hoard v. U.S. Paint, Lacquer & Chem. Co., 44 Misc.2d 72, 253 N.Y.S.2d 89 (Sup.Ct.Monroe Co.1964). 17 CPLR 302(a)(3)(ii). 18 See, e.g., Allen v. Canadian General Elec. Co., 65 A.D.2d 39......
-
Murphy v. Erwin-Wasey, Inc.
...Massachusetts, defendant would without question be within the jurisdiction of the court. See Hoard v. United States Paint, Lacquer & Chem. Co., 44 Misc.2d 72, 253 N.Y.S.2d 89 (Sup.Ct. 1964). To provide guidance for the district court, should plaintiff's allegations be limited to a claim tha......
-
State ex rel. Carrington v. Schutts
...commission of a tortious act in this state. 'This proceeding is not one predicated on a tortious act (cf. Hoard v. U. S. Paint, Lacquer & Chem. Co., 44 Misc.2d 72, 253 N.Y.S.2d 89). An act leading to pregnancy need not constitute a tortious act. Indeed, petitioner indicates the relationship......
-
Hertz Commercial Leasing Corp. v. LMC Data, Inc.
...as Iroquois Gas Corp. v. Collins, 42 Misc.2d 632, 248 N.Y.S.2d 494, aff'd 23 A.D.2d 823, 258 N.Y.S.2d 376; Hoard v. U.S. Paint, Lacquer & Chemical Co., 44 Misc.2d 72, 253 N.Y.S.2d 89; Patrick Ellam, Inc. v. Nieves, 41 Misc.2d 186, 245 N.Y.S.2d 545 amongst In the Iroquois case it was clear t......