Columbia Machine Works, Inc. v. Blackburn-Smith Manufacturing Co.

261 A.D. 912, 25 N.Y.S.2d 321, 1941 N.Y. App. Div. LEXIS 8071

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1941
• Status: Published

Opinion

Action for goods sold and delivered to defendant, allegedly a foreign corporation organized and existing under the laws of the State of New Jersey. Upon defendant’s motion, made on affidavits and the original papers on attachment, an order was made vacating the attac ment and service of summons and complaint upon the defendant without the State of New York. Separate orders were also made which respectively denied (1) defendant’s motion for increased security on attachment, and (2) denied its motion for a third extension of time to appear generally, answer, plead or otherwise move with respect to the complaint. From the order first ■ mentioned plaintiff appeals (appeal A); from the orders subsequently mentioned defendant appeals (appeals B and C). Order granting motion to vacate warrant of attachment and service of summons and complaint upon the defendant (appeal A) affirmed, without costs. Appeals from orders denying defendant’s motion for increased security on attachment and for a third extension of time to appear, etc. (appeals B and C), dismissed, without costs. As to appeal A, upon this record, it appears undisputedly and as matter of law (1) that the defendant is not a foreign corporation, as alleged by the plaintiff; and, likewise, (2) that the defendant is not estopped from asserting that it is not a foreign corporation, as alleged by plaintiff. Appeals B and C, therefore, have become academic. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.