Parke-Bernet Galleries, Inc. v. Franklyn, PARKE-BERNET

• Decision Date: 06 February 1969
• Docket Number: PARKE-BERNET
• Citation: 31 A.D.2d 276,297 N.Y.S.2d 151
• Parties: GALLERIES, INC., Plaintiff-Appellant, v. Robert A. FRANKLYN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 151

297 N.Y.S.2d 151

31 A.D.2d 276

PARKE-BERNET GALLERIES, INC., Plaintiff-Appellant, v. Robert A. FRANKLYN, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 6, 1969.

Marshall C. Berger, New York City, of counsel (Edward C. Wallace and Myron J. Meadow, New York City, with him on the brief, Weil, Gotshal & Manges, New York City, attorneys) for appellant.

Thodore Ellenoff, New York City, of counsel (Gartenberg & Ellenoff, New York City, attorneys) for respondent.

Before STEVENS, P.J., and EAGER, TILZER and McNALLY, JJ.

TILZER, Justice.

Again the question is posed as to how long is our long-arm statute--whether personal jurisdiction was acquired over the California defendant under CPLR 302 (subd. (a), par. 1) through telephone calls and correspondence had with the plaintiff-appellant, a New York auctioneer, of works of art. At the time of the auction, an open telephone line was established between the defendant in California and an employee of the plaintiff-appellant at its premises in New York. This employee advised the defendant of the bidding and received instructions from the defendant as the sale progressed. As a result of this arrangement, plaintiff-appellant contends that the defendant was the successful bidder for two paintings and it instituted this action to recover therefor, serving the defendant personally in California.

In asserting personal jurisdiction over nonresidents, our Legislature, as has been observed, chose not to fix precise standards as to the minimal contacts required to sustain jurisdiction under the provisions of CPLR 302(a)(1). It may be that progress in communications, the development of technological devices such as the videophone, will ultimately reach a point where it may be said that a foreign domiciliary is physically present in New York for all intents and purposes. But as yet, in the evolutionary expansion of personal jurisdiction over nonresidents, mere mail and telephonic communication concerning a noncommercial contract between an individual nonresident buyer in California and a domiciliary seller in New York do not constitute those minimal contacts sufficient to establish the transaction of business in this State. Despite the liberality with which 302 has been construed, it would offend traditional concepts of fairness and substantial justice to compel the defendant nondomiciliary, a doctor not engaged in the business of buying and selling works of art, to defend in this jurisdiction. (McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 383, 283 N.Y.S.2d 34, 38, 229 N.E.2d 604, 607; Millner Co. v. Noudar, LDA, 24 A.D.2d 326, 329, 266 N.Y.S.2d 289, 293.)

In determining whether it is fair and reasonable, moreover, to require the defendant to defend the suit brought here, the test is not a mere 'mechanical or quantitative' one, but '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.' (International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95; Davis v. St. Paul-Mercury Indemnity Company, 4 Cir., 294 F.2d 641, 647.) Plaintiff-appellant contends that defendant was the successful bidder for two paintings for a total price of $96,000; that he participated in the auction sale as if he were physically present in New York. But, as the plaintiff concedes, and as the Special Referee reported, an auctioneer is normally deemed to be the agent of the seller rather than the buyer. (The report of the Special Referee finding a lack of jurisdiction over the defendant was confirmed by the Special Term, the transcript of the minutes taken before the Referee being waived.) The individual in the plaintiff-appellant's premises in New York in telephonic communication with the defendant in California was the plaintiff's employee. There is nothing before us to indicate that this employee, Mr. Nash, employed by the plaintiff-appellant as a cataloguer of paintings, was the defendant's special agent hired for the single purpose of bidding for the defendant at the auction. Any such factual findings, moreover, in the state of the record, would be impermissible. The plaintiff auctioneer, of course, was not the defendant's agent, acting under defendant's control, since it was also the agent in the same bidding for third parties participating in the sale. Nash, on the other hand, was not shown to have been acting for the defendant alone, solely in his interests and subservient to his wishes. His acts do not create a basis for jurisdiction against defendant. (Millner Co. v. Noudar, LDA., Supra, 24 A.D.2d at p. 328, 266 N.Y.S.2d at p. 292.) In Davis v. St. Paul-Mercury Indemnity Company, Supra, in referring to the test enunciated by Mr. Justice Stone in International Shoe Co. v. Washington, Supra, the Court said:

'The meaning of due process in this area can be determined only by weighing the competing interests. * * * what is required is an analysis and weighing of the interests of a defendant in not being called upon to defend in the forum, of a plaintiff in being able to acquire jurisdiction over a defendant in the place where the cause of action arose, and of a state in being able to open its courts to the particular lawsuit. * * *

'What is the primary interest of a resident of Texas who is made a defendant in a North Carolina court? It is to avoid the inconvenience of having to defend in North Carolina. The trip would tend to disrupt the pursuit of his affairs at home. There is also the expense of the journey for litigant and counsel. Even if local counsel should be retained, he would be a person with whom the defendant is unfamiliar. The inconvenience to the defendant is more likely to be important in the case of individuals than of corporations.' (294 F.2d at p. 647)

The order appealed from dismissing the complaint upon the ground that the court lacks jurisdiction over the person of the defendant should be affirmed, with costs and disbursements.

Order entered May 27, 1968, affirmed with $50 costs and disbursements to the respondent.

All concur except ...