Saratoga Harness Racing Ass'n, Inc. v. Moss

• Decision Date: 27 December 1966
• Parties: SARATOGA HARNESS RACING ASSOCIATION, INC., Respondent, v. Jesse MOSS et al., Defendants and David Buckson et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 888

275 N.Y.S.2d 888

26 A.D.2d 486

SARATOGA HARNESS RACING ASSOCIATION, INC., Respondent, v. Jesse MOSS et al., Defendants and David Buckson et al., Appellants.

Supreme Court, Appellate Division, Third Department.

Dec. 27, 1966.

Jesse Moss, New York City (Jesse Moss, Richard Allan, New York City, of counsel), for defendants-appellants.

Dillon & Olson, Albany (N. LeVan Haver, Kingston, David W. Morris, Albany, of counsel), for plaintiff-respondent.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY, and BRINK, JJ.

HERLIHY, Justice.

The appellants are non-residents of the State of New York and were served outside of the State. The issue is whether or not there has been a showing that they committed a 'tortious act within the state'.

Section 302(a), CPLR, as pertinent, reads:

' § 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

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; * * *'

The appellant corporation is a national association, organized pursuant to the laws of the District of Columbia and apparently is engaged in the interest and furtherance of harness horse racing. The Northeastern Harness Horsemen's Association (hereinafter referred to as Northeastern) is territorial in scope and it entered into a contract, dated July 20, 1965, with the plaintiff on behalf of its member horsemen.

The complaint alleged upon information and belief that Moss, Buckson and Smith during 1964 and 1965 conspired to interfere with 'the free exercise of activity in the conduct of business' by horse race tracks and horse owners throughout the United States and Canada. Thereafter, it is alleged upon information and belief that these defendants organized the appellant International association and it employed Shehan, all in furtherance of this scheme. It then specifically alleged that in June and July of 1965 the defendants at Saratoga Springs convinced owners and trainers not to enter their horses at Saratoga Springs in races conducted from July 10, 1965 to July 20, 1965. The complaint also alleged that 'Moss, Buckson and Smith entered into said arrangement or combination maliciously and without any cause therefor and with intent wrongfully to interfere with the proper exercise of activity in the conduct of harness horse races by plaintiff * * *'. It further alleged that an illegal boycott, for which damages are sought, was effective at the Saratoga Raceway from July 10, 1965 to July 20, 1965.

The second cause of action set forth in the complaint alleged an implied contract between owners and trainers of horses and the plaintiff whereby their horses would be entered in plaintiff's races and that the activities of the appellants in Saratoga Springs during June and July of 1965 wrongfully interfered with such contract.

The appellants in response to the service of the summons and complaint in this action moved to dismiss on the ground that the court does not have personal jurisdiction. (See CPLR § 3211(a).) The affidavits, submitted on the motion by the appellants, admit that they were present in this State in July of 1965, Buckson said he was here for three hours some three days After the boycott commenced (either July 15 or July 16); Smith said he was here on July 15, 16, 19 and 20, 1965 which was after July 10 when the alleged boycott started; Shehan said he also was not in Saratoga Springs until July 15 and he stayed until July 20, 1965. All of the affidavits by the appellants assert that they in no way represented the appellant corporation on these admitted visits.

The affidavit of Philip Proller, representing the Northeastern Harness Horsemen's Association, in support of the motion to dismiss, states that as a result of the alleged boycott, racing was cancelled on July 14 and on July 15, 1965.

The affidavit of David W. Morris in opposition makes no assertion of any particular wrongful acts on the part of the appellants, but does contain a newspaper article as an exhibit which indicates that the appellant corporation was in Saratoga Springs on July 17, 1965.

Assuming, for the purpose of the present motion, that the complaint states a cause of action, that fact of itself does not determine the issue of jurisdiction. In Feathers v. McLucas sub nom. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, there was a sufficient legal complaint but no basis for jurisdiction pursuant to the section here in question. In that case the court said at pages 461, 462, 261 N.Y.S.2d at page 22, 209 N.E.2d at page 78: 'If, in fact, the Legislature of this State had intended to confer jurisdiction on the strength of injurious forum consequences alone, without regard to the locus of the commission of the tortious act itself, it would presumably have used language appropriate to reflect such a design. Thus, it could have made explicit provision for such situations as some states have done, or as proposed by the New York Law Revision Commission or by the Commissioners on Uniform State Laws in their model act, or it might have followed the lead of other states which require only that the 'tort' be shown to have been committed within the state 'in whole or in part'. In sharp contrast, the Legislature chose to adopt language which, in so many words, demands that the 'tortious act' be one committed by the defendant, 'in person or through an...