Opinion
October, 1934.
Order denying defendant's motion to vacate and set aside the service of the summons and complaint on the grounds that the defendant is a foreign corporation and not transacting business within this State, and that the party served is not an officer, director or managing agent of the defendant corporation, affirmed, with ten dollars costs and disbursements, with leave to defendant to answer within ten days from the entry of the order herein. We are of opinion that on the undisputed facts the defendant was doing business in the State of New York to such an extent that it subjected itself to service of process. ( Tauza v. Susquehanna Coal Co., 220 N.Y. 259.) Pennrich Co. v. Juniata Hosiery Mills (247 id. 592) is not controlling, for the reason that here the defendant's representative in New York, Hilton L. Epp, the party served, is a salesman in the regular employ of the defendant and not an independent salesman operating on a commission basis. Lazansky, P.J., Kapper and Hagarty, JJ., concur; Carswell and Davis, JJ., dissent.