Grunder v. Premier Industrial Corp.

12 A.D.2d 998, 211 N.Y.S.2d 421, 1961 N.Y. App. Div. LEXIS 12482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1961
• Status: Published

Opinion

Order unanimously reversed, without costs of this appeal to either party, motion denied, without costs, and in the exercise of discretion defendant permitted to allege in its answer that it is not a person subject to the jurisdiction of the court within the meaning of section 237-a of the Civil Practice Act. Memorandum: This appeal presents the issue of validity of service of process on a foreign corporation. It is alleged that the corporation is doing business in the State. The record does not show that there is any office, bank account or telephone listing in the corporate name within the State. However, it does appear that the corporation has divided the State into districts and has engaged a number of sales agents to solicit orders therein for acceptance at the home office in Cleveland. The sales agent upon whom process was served also held the title of territory supervisor. About one quarter of his time was occupied in the training of other sales agents and his call upon the other agents was preceded by the mailing of a company form which described the call as a “manager visit”. Regular maintenance of a sales force, if of sufficient magnitude and organized, may constitute the “ doing of business ” in the State. (Benware v. Acme Chem. Co., 284 App. Div. 760.) The affidavits presented on the motion failed to sustain respondent’s claim that it was not doing business in the State but raised a question of fact which may be determined on the trial or separately under subdivision 3 of section 443 of the Civil Practice Act. (Appeal from order of Steuben Special Term granting motion by defendant to set aside service of the summons in the action.) Present —-Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.