Ruth v. Chicago, R.I. & P.R. Co.

• Decision Date: 11 March 1958
• Citation: 5 A.D.2d 215,171 N.Y.S.2d 406
• Parties: Harold J. RUTH, Plaintiff-Appellant, v. The CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, sued herein as The Rock Island Railroad Company, Defendant-Respondent, and The Pennsylvania Railroad Company and The Long Island Railroad Company, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 406

171 N.Y.S.2d 406

5 A.D.2d 215

Harold J. RUTH, Plaintiff-Appellant, v. The CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, sued

herein as The Rock Island Railroad Company,

Defendant-Respondent, and The Pennsylvania Railroad Company

and The Long Island Railroad Company, Defendants.

Supreme Court, Appellate Division, First Department.

March 11, 1958.

Herbert L. Brickman, New York City, of counsel (Herbert Herman Hefler, Brooklyn, on the brief), for appellant.

Jeremiah C. Waterman, New York City, of counsel (Waterman & McLean, New York City, attorneys), for respondent.

Before RABIN, J. P., and FRANK, VALENTE, McNALLY, and STEVENS, JJ.

PER CURIAM.

In this negligence action, appeal is taken from an order setting aside service of the summons and dismissing the complaint on the ground that defendant is not doing business within the State of New York so as to make it subject to process.

A similar motion was made by this defendant in an action brought in Kings County by a different party who sought to recover damages for personal injuries arising out of the same occurrences involved in this action. Special Term (Kings County) referred the matter to an Official Referee who, after taking testimony, reported that defendant is doing business within the State of New York so as to render it amenable to service here. That report was confirmed and on appeal the order of Special Term was affirmed (Rondinelli v. Chicago, Rock Island & Pacific R. Co., 5 A.D.2d 842, 170 N.Y.S.2d 947).

Upon the argument of the present motion it was agreed by counsel that this court may consider the testimony taken by the Official Referee in Kings County as though it were part of this record. Accordingly we have before us a record substantially the same as that before the Appellate Division, Second Department, except for a difference in the party plaintiff.

In view of the Second Department's determination the order herein should be reversed on the facts and on the law and the motion to set aside service of the summons and dismiss the complaint should be denied with $20 costs and disbursements to appellant.

Order unanimously reversed with $20 costs and disbursements to the appellant and the motion denied with $10 costs. Order filed. All concur.