Opinion
June 28, 1961
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements and motion denied, with $10 costs. Memorandum: Plaintiffs effected service on defendant foreign corporation by serving one Schumer as managing agent of defendant. Upon the defendant's motion Special Term set aside the service for lack of jurisdiction. The unverified affidavit of defendant's vice-president establishes that defendant is a Minnesota corporation but fails completely to refute plaintiffs' assertion that the party served was defendant's managing agent. The motion to vacate is also supported by an affidavit of its counsel which, without any documentary evidence to support its affirmations or without stating the source of his information, recites that Schumer is not a managing agent. The answering affidavit of one of the plaintiffs in opposition to the motion has annexed to it various exhibits, one of which is a business card of Happy House Shops on which appears the name of Schumer and under it the words "Regional Manager". Another exhibit is a letter to the plaintiffs on Happy House Shops stationary signed by Schumer in which he informed plaintiffs that the defendant had restored to plaintiffs its credit arrangement with them. The franchise agreement signed by the parties further carries Schumer's name as a witness. It is undenied that defendant transacts business in this State of at least $250,000 in volume. These facts which are not refuted by the generalities in defendant's affidavits, and to which no reply affidavit was served, are sufficient to support plaintiffs' claim that defendant is doing business in this State. Plaintiffs satisfy the tests laid down by this court in Brocia v. Franklin Plan Corp. ( 235 App. Div. 421, 422). As was said in Tauza v. Susquehanna Coal Co. ( 220 N.Y. 259, 268): "All that is requisite is that enough be done to enable us to say that the corporation is here". (See, also, International Shoe Co. v. Washington, 326 U.S. 310, 314; Sterling Novelty Corp. v. Frank Hirsch Distr. Co., 299 N.Y. 208, 210; Chaplin v. Selznick, 293 N.Y. 529; 146 A.L.R. 941, 948-966; 20 C.J.S., Corporations, § 1920, subd. e, par. [8].)