Opinion
May 6, 1910.
F.W.M. Cutcheon of counsel [ William R. Begg with him on the brief], Byrne Cutcheon, attorneys, for the appellant.
Thomas B. Hardin of counsel [ Hardin Hess, attorneys], for the respondent.
A motion was made to set aside the service of the summons and complaint upon the Western Pacific Railway Company, a California corporation. The Special Term made an order appointing a referee "to take proof concerning the disputed questions of fact arising upon said motion and report said proofs, together with his opinion thereon." The defendant appeals.
The service was made upon Edward T. Jeffery, the president of the defendant, in the city of New York, the said Jeffery being a resident of said city. The motion was made upon the ground that said foreign corporation does no business and has no property in the State of New York, and cannot be brought within the jurisdiction of the courts of this State by the service of process upon its president.
It appears that not only the president and its general counsel, but all the members of the executive committee of the board of directors of the defendant reside in New York, and that said committee meets in said city from time to time and attends to the business of the company; that a first mortgage has been executed in the State of New York and delivered by the defendant company to the Bowling Green Trust Company of said city as trustee to secure an issue of $50,000,000 of thirty-year five per cent gold bonds and that said mortgage contains the following provision: "The railway company covenants and agrees that at all times until the payment of the principal of the bonds secured by this indenture, it will keep an office or agency in the city of New York where bonds and coupons may be presented for payment." That an assistant secretary of the company, who is the transfer agent, resides and has an office in said city where stock is transferred, registered and delivered; that the contract with the company, for breach of which this suit was instituted, was made in the city of New York; that plaintiff's services under said contract were performed in said city and part payment therefor there made.
We think upon these facts, as shown upon this record, the service upon the defendant was good and that the motion to set aside the service should have been denied. The case is controlled by Grant v. Cananea Consolidated Copper Co. ( 189 N.Y. 241).
There was no necessity for a reference and it should not have been ordered. ( Buchholtz v. Florida East Coast R. Co., 59 App. Div. 566.) The order appealed from should be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term for decision.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to Special Term for decision.