Schnall v. Clearfield Cheese Co.

23 A.D.2d 652, 257 N.Y.S.2d 491, 1965 N.Y. App. Div. LEXIS 4607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1965
• Status: Published

Opinion

Order, entered on June 16, 1964, unanimously affirmed, with $30 costs and disbursements to respondent. Jurisdiction over the defendant in this action depends upon whether or not the plaintiff has a cause of action “ arising from ” the transaction of “any business within the state” (see CPLR 302). Inasmuch as it does not appear from plaintiff’s amended complaint or his affidavits that he has any such cause of action, the motion under CPLR 3211 (subd. [a], par. 8) to dismiss for lack of jurisdiction should have been granted. The plaintiff does not show that he has a cause of action predicated upon the alleged breach of a contract made or to be performed in the State. (Of. Longines-Wittnauer Watch Go. v. Bournes & Beineelee, 21 A D 2d 474.) The writing, alleged to have been executed by plaintiff and delivered in this State, a copy of which is annexed to the complaint, provides merely that defendant, with place of business in Pennsylvania, shall process and package cheese products for plaintiff, without the fixing of any contract period and without any specification as to prices or quantities. The alleged writing is nothing more ■than an agreement to contract with the matter of prices and quantities to be left for future consideration. The alleged failure of the defendant to process and package cheese for plaintiff as called for by said writing does not appear to be actionable. (See, generally, 9 N. T. Jur., Contracts, §§ 49, 50, 51.) Concur — Breitel, J. P., Valente, Stevens, Eager and Stener, JJ.