Librairie Hachette, S. A. v. Paris Book Center, Inc.

• Decision Date: 10 April 1970
• Citation: 309 N.Y.S.2d 701,62 Misc.2d 873
• Parties: LIBRAIRIE HACHETTE, S.A., Plaintiff, v. PARIS BOOK CENTER, INC. and Leon Amiel, Defendants.
• Court: New York Supreme Court

Page 701

309 N.Y.S.2d 701

62 Misc.2d 873

LIBRAIRIE HACHETTE, S.A., Plaintiff, v. PARIS BOOK CENTER, INC. and Leon Amiel, Defendants.

Supreme Court, Special Term, New York County, Part XIII.

April 10, 1970.

Alan J. Hartnick, New York City, for plaintiff.

Bressler, Meislin, Tauber & Bressler, New York City, for defendants.

HAROLD BAER, Justice.

The plaintiff seeks payment for merchandise delivered during the year 1968. Plaintiff is a publisher in France. Defendant is an importer and distributor of French publications. All transactions called for payment in francs in Paris. The balance claimed to be due on January 1, 1969, is 243,346 francs.

There are a number of affirmative defenses. Defendant challenges jurisdiction on the theory that plaintiff does business in this State and has failed to comply with the Business Corporation Law, Section 1312. That plaintiff has refused to credit defendant for returned books and has refused to credit discounts or bonuses to which defendant is entitled. Finally, that plaintiff, although all dealings were in French francs, has applied an improper rate of exchange in demanding judgment.

Deciding the jurisdictional question first, this Court finds that plaintiff was not 'doing business' in this State within the meaning of the Business Corporation Law so as to requrie the filing of a certificate with the Secretary of State.

Many orders for books from the plaintiff were channelled through the office of Hachette, Inc., the New York corporate agent of the plaintiff. It would forward such orders to plaintiff's office in Paris where all decisions were made. The testimony was that no employees of Hachette, Inc., had any authority to negotiate contracts or to bind plaintiff in any way. All billings and invoices originated from plaintiffs in Paris and were, in fact, expressed in and payable in French francs. All contracts were subject to acceptance in Paris. While a foreign corporation may be considered as present within the State for the purpose of obtaining jurisdiction over it, such a determination does not necessarily carry the conclusion that the corporation is 'doing business' within the State to the extent of requiring compliance with Section 1312 of the Business Corporation Law (see International Text Book Co. v. Tone, 220 N.Y. 313, 115 N.E. 914). Whether the local activities engaged in by an unauthorized corporation sufficiently make out the transaction of business within the meaning of the statute, necessarily depend on the particular facts and circumstances of each case (Sterling Novelty Corp. v. Frank & Hirsch Distr. Co., 299 N.Y. 208, 210, 86 N.E.2d 564, 565). In the case at bar, the most that can be said is that plaintiff maintained an agent corporation in New York, for the purpose of receiving orders for plaintiff's books, which orders were transmitted to Paris for acceptance. It has been repeatedly held that this does not constitute the transaction of business within the State (Compania Mexicana, etc. v. Compania Metropolitana, 250 N.Y. 203, 164 N.E. 907; Hamlin v. G. E. Barrett & Co., Inc., 246 N.Y. 554, 159 N.E. 648; Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 480, 176 N.Y.S.2d 318, 321, 151 N.E.2d 874, 876). The fact that the foreign corporation may have a listing in the local telephone directory (Harmony Music Center Inc. v. Railway Exp. Agency, Inc., 35 Misc.2d 18, 230 N.Y.S.2d 50) or its name on the door of its agent's local office (Hamlin v. G. E. Barrett & Co., Inc., supra) does not alter the situation. As this Court stated in Bonnell Co. v. Katz, 23 Misc.2d 1028, 1031, 196 N.Y.S.2d 763, 768, '* * * where a foreign corporation's primary contact here is to solicit business or to merely facilitate the sale and delivery of its merchandise * * *, then such a corporation should be exempt from any burdens which our laws place upon foreign corporations doing business here.' For these reasons the plaintiff was not in violation of Section 1312 of the Business Corporation Law and had the right to maintain the instant lawsuit in the courts of this State.

The defendant is not entitled to credit for returned books except such credits as have been granted by the plaintiff. As to the books refused for return, defendant may obtain them if desired, and plaintiff will aid in facilitating the return. The discount controversy is dependent upon the contract between the parties (Exhibits 9, 10, 11, 12). Plaintiff contends that no discount is due because of default in payment. Defendant contends discount is due in accordance with prior arrangements, and not as indicated in the letter of December 27, 1967, which reduced the discount percentage (Exhibit 12).

There is no evidence that defendant protested or refused to do business under the changed discount arrangements. In fact business was carried on during 1968. Further, defendants' testimony on the discount claimed was an approximation based on the earlier arrangments. There was no testimony by defendant on the December, 1967, arrangement. On the other hand plaintiff computed the discount on that arrangment as 4,903.92 francs. This figure, under the circumstances, must be accepted. There is no justification for refusing to credit this amount to defendant. There is no contractual or factual basis for such a penalty.

Implicit in the defendants' general denial, is objection to certain items in plaintiff's invoice (Exhibit A, annexed to the complaint). These objections were reviewed by the Court, after the testimony concerning these items. There are only two sets of items that should be deleted for which defendant is entitled to credit. These are charges for interest because the account was in default, and for telegrams sent to defendant demanding payment. These charges total 8,845 francs and 65 francs respectively. Plaintiff claims that these charges were made in accordance with custom and usage in the trade. Defendant denies knowledge of any such custom or any agreement to pay interest or any other late...