Iroquois Gas Corp. v. Collins

• Decision Date: 17 April 1964
• Citation: 248 N.Y.S.2d 494,42 Misc.2d 632
• Parties: IROQUOIS GAS CORPORATION, Plaintiff, v. Samuel Vernon COLLINS, d/b/a Collins Construction Company, Defendant.
• Court: New York Supreme Court

Page 494

248 N.Y.S.2d 494

42 Misc.2d 632

IROQUOIS GAS CORPORATION, Plaintiff, v. Samuel Vernon COLLINS, d/b/a Collins Construction Company, Defendant.

Supreme Court, Special Term, Erie County.

April 17, 1964.

Phillips, Mahoney, Lytle, Yorkey & Letchworth, Buffalo (Alexander C. Cordes, Buffalo, of counsel), for plaintiff.

Falk, Twelvetrees, Johnston & Siemer, Buffalo (Edward D. Siemer, Buffalo, of counsel), for defendant.

MATTHEW J. JASEN, Justice.

The defendant, a resident of Texas, moves pursuant to Rule 3211, Subdivision (a), Paragraph 8, of the CPLR for an order dismissing the complaint on the ground he is not subject to the jurisdiction of this court, and further that service of process was insufficient to meet the requirements of Section 308, Subdivision 38 CPLR.

The action is for breach of contract.

The following facts are uncontroverted. On or about September 3rd, 1959, the defendant sent plaintiff an unsolicited request to bid on any projected pipe line water crossing that plaintiff might construct in the future. On January 14th, 1960 the defendant repeated his inquiry and desire to bid, and on May 27th, 1960 plaintiff wrote defendant informing him of its proposed pipe line across the Niagara River. In response to this letter, defendant sent plaintiff a collection of plans concerning submarine pipe lines and their installation as well as a series of reprints of articles concerning the defendant, his personnel, his methods and his past and present projects, including the statement that since 1951 defendant had laid sixteen submarine pipe lines in New York State.

On June 26th and July 1st, 1960, plaintiff sent to the defendant detailed plans and specifications of the project as well as maps and diagrams.

The defendant wrote the plaintiff on July 11th, 1960 stating that he had studied the information furnished by the plaintiff as well as all the facets involved in the project, and offered to do the job for $117,260.00. In response to this letter, plaintiff replied in a letter dated July 14th, 1960:

'This is to inform you that you were low bidder on our 12"" Niagara River crossing. Sometime in the near future, we will send you a contract and notify you when work can commence.

'We look forward to working with you on this project.'

Plaintiff contends that their letter of July 14th constituted an acceptance of defendant's offer thereby completing the contract. It is their claim that performance under this contract commenced in August 1960, when defendant sent his construction superintendent, one Herman Wall, to survey the site and to make field arrangements for construction. On August 22nd, 1960, Wall informed the plaintiff that the defendant was no longer satisfied with the contract price and that it would be necessary to discuss the matter with others from the home office.

On August 26th, 1960 another of defendant's representatives, one Wynn Harvey, arrived in Buffalo to confer with the plaintiff regarding the contract price. Plaintiff contends that Harvey stated that the defendant could no longer perform for the price agreed upon and that he would need an additional $60,000.00 or else a cost plus contract. Plaintiff, however, declined to negotiate the terms of the contract which resulted in Harvey's return to Texas and nothing further was done by the defendant to perform the contract.

In support of this motion to dismiss, defendant contends that the defendant has not transacted any business within the state and the court therefore does not have jurisdiction of the person.

The purpose of Section 302(a), CPLR patterned upon the Illinois CPA Section 17, S.H.A. ch. 110, § 17, is to take advantage of the constitutional power of the State of New York to subject nonresidents to personal jurisdiction where they commit acts within the State. (Advisory Committee Notes--Standard Civil Practice Service, Volume 1, pp. 297, 298.)

The Section provides in part:

' § 302. Personal jurisdiction by acts of non-domiciliaries.

(a) Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:

'1. Transacts any business within the state; or'.

The critical question becomes what constitutes transacting 'any business' within the scope of Section 302.

Certainly where a contract is made in this state and a cause of action arises out of such contract, the consummation of the contract in New York constitutes the transaction of business or the minimum contacts necessary to invoke personal jurisdiction. (See Steele v. De Leeuw, 40 Misc.2d 807, 244 N.Y.S.2d 97 and Patrick Ellam, Inc. v. Nieves, 41 Misc.2d 186, 245 N.Y.S.2d 545.)

Since the question of whether there was in fact a contract in existence in this instance is being disputed by the defendant, this court must determine whether activity, within this State in furtherance of a contract by a non-resident defendant or his agent, constitutes transacting 'any business' within the State, to establish the necessary minimum contacts.

From the facts and circumstances presented in this case, this court is of the opinion that it does. (See Kropp Forge Co. v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76 [1962].)

It is not denied that defendant's agents, Wall and Harvey, on two separate occasions spent several days in this State in furthering a contract to construct a pipe line across Niagara River. It is conceded that the defendant's agents inspected the construction site and engaged in other activities in reference to the alleged construction agreement. Certainly this was more than a casual visit to our State. Defendant by his admitted acts has availed himself of the privileges of conducting business activity within the State, thus invoking the benefit and protection of its law. (...