Wilkins v. Queen City Savings Bank & Trust Co.

U.S. Circuit Court for the District of Southern New York

Wilkins v. Queen City Savings Bank & Trust Co.

154 F. 173, 1907 U.S. App. LEXIS 5166

CourtU.S. Circuit Court for the District of Southern New York

DecidedFebruary 2, 1907

StatusPublished

Cited by11 cases

This text of 154 F. 173 (Wilkins v. Queen City Savings Bank & Trust Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wilkins v. Queen City Savings Bank & Trust Co., 154 F. 173, 1907 U.S. App. LEXIS 5166 (circtsdny 1907).

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Opinion

LACOMBE, Circuit Judge.

I do not understand that Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569, is authority for the proposition that presence of an officer of a foreign corporation in this state for the purpose of discussing a proposed adjustment of the single controversy between it and plaintiff is sufficient to establish such a “doing business within the state” as will take the case out of the rule laid down in Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517, and Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113. The controlling point in the Spratley Case is stated on page 611 of 172 U. S., page 312 of 19 Sup. Ct. (43 L. Ed. 569):

[174]*174“Having succeeded in taking risks in the state through a number of years, it cannot be said to cease doing business therein when it ceases to take, obtain, or ask for new risks or to issue new policies, while at the same time its old policies continue in force and the premiums thereon are continuously paid by the policy holders to an agent residing in another state, and who was once the agent in the state where the policies holders resided. This action on the part of the company constitutes doing business within the state, so far as is necessary, within the meaning of the law upon this subject. And this business was continuing at the time of the service of process on Mr. Chaffee in Memphis.”

In two cases on all fours with the one at bar, Judge Grosscup decided one way (Houston v. Filer [C. C.] 85 Fed. 757) and Judge McPherson the other way (Rondon Machinery Co. v. American Malleable Co. [C. C.] 127 Fed. 1008). The latter decision seems to be more in accord with the weight of authority (see cases cited in the opinion) and with the practice heretofore followed in this district. Clews v. Woodstock Iron Co. (C. C.) 44 Fed. 31. •

The former decision vacating service of summons is reaffirmed.

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LACOMBE, Circuit Judge.

I do not understand that Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569, is authority for the proposition that presence of an officer of a foreign corporation in this state for the purpose of discussing a proposed adjustment of the single controversy between it and plaintiff is sufficient to establish such a “doing business within the state” as will take the case out of the rule laid down in Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517, and Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113. The controlling point in the Spratley Case is stated on page 611 of 172 U. S., page 312 of 19 Sup. Ct. (43 L. Ed. 569):

[174]*174“Having succeeded in taking risks in the state through a number of years, it cannot be said to cease doing business therein when it ceases to take, obtain, or ask for new risks or to issue new policies, while at the same time its old policies continue in force and the premiums thereon are continuously paid by the policy holders to an agent residing in another state, and who was once the agent in the state where the policies holders resided. This action on the part of the company constitutes doing business within the state, so far as is necessary, within the meaning of the law upon this subject. And this business was continuing at the time of the service of process on Mr. Chaffee in Memphis.”

In two cases on all fours with the one at bar, Judge Grosscup decided one way (Houston v. Filer [C. C.] 85 Fed. 757) and Judge McPherson the other way (Rondon Machinery Co. v. American Malleable Co. [C. C.] 127 Fed. 1008). The latter decision seems to be more in accord with the weight of authority (see cases cited in the opinion) and with the practice heretofore followed in this district. Clews v. Woodstock Iron Co. (C. C.) 44 Fed. 31. •

The former decision vacating service of summons is reaffirmed.

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154 F. 173, 1907 U.S. App. LEXIS 5166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkins-v-queen-city-savings-bank-trust-co-circtsdny-1907.

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