Tomaselli v. Martens

283 A.D. 742, 127 N.Y.S.2d 529, 1954 N.Y. App. Div. LEXIS 5119

Opinion

— In an action to recover damages for personal injuries, the plaintiff appeals from an order granting the motion of the defendant, appearing specially, for an order vacating and setting aside the purported service of the summons and complaint. Order affirmed, with $10 costs and disbursements. The appellant was injured while a guest at respondent’s resort hotel in Pennsylvania, allegedly as a result of the negligent maintenance of the hotel area. She became a guest there by making reservations through a New York City travel agency, which received a commission from respondent. Suit was instituted against the respondent, a Pennsylvania resident, by service upon another travel agent, pursuant to section 229-b of the Civil Practice Act. Appellant states no fact from which it could be found that the person served' was “ in charge ” of respondent’s business in this State (Adams V. Davison, 265 App. Div. 856; Yeckes-Eichenbaum, Inc., v. McCarthy, 290 N. Y. 437; Pine & Co. v. McConnell, 273 App. Div. 218, 220, affd. 298 N. Y. 27), or that the cause of action arose out of business in which respondent was engaged within this State within the meaning of the statute. (Peters v. Robin Airlines, 281 App. Div. 903; Interchemical Corp. v. Mirabelli, 269 App. Div. 224; Miller v. Swann, 176 Mise. 607; Yeckes-Eichenbaum, Inc., v. McCarthy, supra.) Nolan, P. J., Adel, Wenzel, MaeCrate and Murphy, JJ., concur.