George Bagdon, Appellant, v. Philadelphia and Reading Coal and Iron Company, Respondent

George Bagdon, Appellant, v. Philadelphia and Reading Coal and Iron Company, Respondent. Second Department, December 30, 1915. Process — service upon agent of foreign corporation in this State — General Corporation Law, section 16, construed—action on contract relating only to foreign business. The designation by a foreign corporation of a person upon whom service of process may be made in this State pursuant- to section 16 of the General Corporation Law does not operate so as to permit service upon such agent in an action to recover for the breach of a contract of employment by the corporation where the contract was'made and the breach occurred in the foreign State and it had no relation to any business which the corporation transacted in this State. Appeal by the plaintiff, George Bagdon, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of September, 1915, as amended by an order entered in said clerk’s office on the 11th day of October, 1915. The order set.aside and vacated the service of the summons and complaint herein. Service was made upon the agent who had been duly designated by defendant for that purpose, pursuant to section 16 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28). It appeared, however, that the complaint was for an alleged breach of contract ' between the parties for the employment of the plaintiff for life. The breach, if any, occurred in defendant’s mines in the State of Pennsylvania, and the only business done by defendant in the State of New York was the solicitation and receipt of orders for the sale of coal, none of its mining operations being conducted in this State. Defendant contended that although it had a designated agent in this State, its consent to be sued here could not be implied, except with respect to such business as dt transacted in this State. Ralph G. Barclay [Robert Stewart with him on the brief], for the appellant. William F. Purdy, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: I am in favor of affirmance of the Special Term upon the authority cited by it. (Simon v. Southern Railway, 286 U. S. 115, 130.) The Supreme Court of the United States in the opinion say: “ Subject to exceptions, not material here, every State has the undoubted right to provide for service of process upon any foreign corporations doing business therein, to require such companies to name agents upon whom service may be made; and also to provide that in case of the company’s failure to appoint such agent, service, in proper cases, may be made upon an officer designated by law. Mutual Reserve, etc., Ass’n v. Phelps, 190 U. S. 147; Mutual Life Ins. Co. v. Spratley, 172 U. S. 603. But this power to designate by statute the officer upon whom service in suits against foreign corporations may be made relates to business and transactions within the jurisdiction of the State enacting the law. Otherwise, claims on contracts wherever made and suits for torts wherever committed might by virtue of such compulsory statute be drawn to the jurisdiction of any State in which the foreign corporation might at any time be carrying on business. The manifest inconvenience and hardship arising from such extra-territorial extension of jurisdiction, by virtue of the power to make such compulsory appointments, could not defeat the power if in law it could be rightfully exerted. But these possible inconveniences serve to emphasize the importance of the principle laid down in Old Wayne Life Association v. McDonough, 204 U. S. 22, that the statutory consent of a foreign corporation to be sued does not extend to causes of action arising in other States.” I am not unmindful that our Court of Appeals in Grant v. Cananea Consol. Copper Co. (189 N. Y. 241), in consideration of section 1780 of the Code of Civil Procedure, said that the “ provisions ” thereof ‘' are violative of no provision of the Federal Constitution to which our attention has been called, nor do they conflict with the Federal authorities upon the subject.” Although the respondent in Grant’s Case (supra) made the point of conflict with the 14th Amendment of the Federal Constitution, it could not, of course, cite Simon’s Case (supra), decided in January, 1915, because Grant’s Case (supra) was decided in October, 1907, and did not cite Old Wayne Life Association v. McDonough (cited in Simon’s Case, supra), which was not argued until October, 1906, and decided in January, 1907. Unless I mistake, we have now an authority which is supreme. (Cook v. Moffat, 5 How. [U. S.] 295.) The order should be affirmed, with ten dollars costs and disbursements. Thomas, Carr, Mills and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.