Majority
p. 647Ultramar Company, Limited, Respondent, v. Minerals Separation, Limited, Appellant, Impleaded with Another. (Argued October 1, 1923; decided October 16, 1923.)
Headnote
Process — service — when foreign corporation not doing business within state at time of service of summons.Ultramar Co., Ltd., v. Minerals Separation, Ltd., 204 App. Div. 795 , reversed.
Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 29, 1923, which reversed an order of Special Term granting a motion to set aside service of the summons and complaint.
The following questions were certified.
“ 1. Was the defendant, Minerals Separation, Limited, at the time of the service of the summons herein, doing business within the state of New York within the meaning of section 47 of the General Corporation Law?
“ 2. Were the duties of and the authority conferred upon John Ballot by the powers of attorney such as to constitute him a managing agent for the said defendant corporation within the meaning of section 229, subdivision 3, of the Civil Practice Act? ”
Emil Goldmark and Alfred A. Cook for appellant.
Undell T. Bates for respondent.
We think the defendant, Minerals Separation, Limited, a British corporation, was not engaged in business in this state at the time of the service of the summons (Tauza v. Susquehanna Coal Co., 220 N. Y. 259 ; Holzer v. Dodge Bros., 233 N. Y. 216 ).
The facts on which this conclusion is founded have been fully stated in the opinion of the Special Term, and no useful purpose would be promoted if they were to be repeated here.
The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court; the first question
p. 648
certified should be answered in the negative; and it is unnecessary to answer the second question.
Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.
Order reversed, etc.
Cases cited
- Tauza v. Susquehanna Coal Co. 220 N. Y. 259 p. 647
- Holzer v. Dodge Bros. 233 N. Y. 216 p. 647