January 11, 1932
UNITED STATES SHIPPING BOARD, EMERGENCY FLEET CORPORATION
L. HAND, Circuit Judge.
The rehearing presents a question which was not orginally submitted and which unfortunately escaped our attention at the time; that arising from the defendant's incorporation under the laws of the District of Columbia. From this the plaintiff argues that it is a foreign corporation, and as such unable to plead the statute of limitations of New York. Olcott v. Tioga R.R., 20 N.Y. 210, 75 Am.Dec. 393; Rathbun v. Northern Central Ry. Co., 50 N.Y. 656; Boardman v. Lake Shore, etc., R.R., 84 N.Y. 157. The relevant sections of the Civil Practice Act are numbers 13, 19 and 55, of which we may at once lay aside 13, since it does not appear that the plaintiff's assignors were non-residents of New York when the cause of action accrued in 1918. In that should be shown upon a new trial, that section will apply, for the cause of action arose outside New York. It is true that ordinarily a debtor must seek out his creditor and tender performance to him where he is found (Williston, § 1812); but the contract here provided otherwise. Payments were to be made by cheques mailed in Washington to the address given by the contractor, and the act of mailing was performance. Palmer v. Phoenix Mut. L. Ins. Co., 84 N.Y. 63; Selman v. Dun, Fed. Cas. No. 12648. The defendant was bound to do no more, though, if the cheques were lost, the contractor perhaps had the same remedies as any one else who has lost a cheque once delivered. The breach was the failure to mail the cheques in Washington; it occurred there. Whether section 55 applies to a suit between non-residents upon a cause of action accruing within the state, we need not therefore consider. Garrison v. Newman, 222 App.Div. 498, 227 N.Y.S. 78, does not present hat question, though the reasoning may imply that the section would cover such a case.
On the other hand, if the plaintiff's assignors turn out to have been residents, section nineteen was the relevant provision; that is, in case the defendant was "without the state" in 1918, for it had never designated a resident of the state on whom service might be made. Section 55 does not limit section 19 (National Surety Co. v. Ruffin, 242 N.Y. 413, 152 N.E. 246), and Comey v. United Surety Co., 217 N.Y. 268, 111 N.E. 832, Ann. Cas. 1917E, 424, does not seem to us broadly to make the statute run in favor of every foreign corporation which can be sued. It does not, however, follow that the defendant was "without the state." If it is a foreign corporation this is true, and that is determined under section 7 of the Civil Practice Act, when a question arises under another section of that statute. To be sure it is only a defining section, and section 19 does not use the phrase defined, "domestic corporations"; this has been imported into it by judicial construction. We may assume arguendo that, having so imported it, the state courts will construe it as though it had been actually written in. If so, and if the defendant is a corporation "created by or under the laws of the United States," and was "located in the state," it was a "domestic corporation," and was not "without the state." In that event section 19 did not apply, and the action was barred under section 48, for the reasons given in our original opinion.
There is nothing in the record to disclose what, if any, were its activities in New York, and that alone is enough to decide this appeal, because we certainly may not take judicial notice of its doings. But we do not think that it was "located in the state." If this phrase is equivalent to "having its principal place of business" here, it certainly was not; of so much we can indeed take notice. If on the other hand it means that the corporation need only be "present" in such sense as to be subject to process in the state courts, it might well appear upon a new trial that it was "located" in New York. It seems to us that Rosenbaum v. Union Pac. Ry. Co., 2 How.Prac.(N.S.)(N.Y.) 45 (G.T. 1st Dept.), affirmed without opinion 100 N.Y. 617, concludes our choice in favor of the first alternative, though we are obliged somewhat to spell out the purport of the decision. The case arose upon a motion to vacate an attachment granted on the theory that the defendant was a foreign corporation. As it did business under an act of Congress (12 St. at L.p. 489), the courts could hardly have held that it was not "created by or under a law of the United States," though the plaintiff vigorously so argued; and the reasoning of the General Term was only that it was not "located" here, because Boston was its principal place of business, by which it meant that the meetings of its stockholders and directors were held, and its chief executive offices were fixed, in that city. An examination of the record shows that it also maintained executive offices in New York, where the coupons in suit were payable; that these were under the charge of an assistant treasurer and "other general executive officials" who lived here; and that it owned property in the state. These activities would have been enough, we should suppose, to subject it to process, had the statute not done so independently (12 St. at L.p. 490), and there seems to be little doubt that the Court of Appeals must have accepted the reasoning of the General Term. The only other case that bears upon the question is Gould v. Texas & Pac. Ry., 176 App.Div. 818, 163 N.Y.S. 479, for Maisch v. New York, 193 N.Y. 460, 86 N.E. 458, turned upon a statute which expressly made the principal place of business the test. In that case the defendant's main executive officers were in New York, and that was enough to defeat the attachment; the principal place of business was here. It is true that the court expressly declined to say that this was the only activity which would "locate" the corporation here, and indulged in some comment upon the possibility of a corporation's being in two places. Nevertheless, we cannot find in what was said a disposition to hold that a federal corporation is "located" wherever it may be sued. The section was probably chiefly intended to cover national banks which are not "located" in more than one place.
While it is tempting, when one is dealing with a statute of limitations, to construe the words as including any activity which gives the plaintiff an opportunity to sue, we must have more in mind. The section is of general application, and has indeed been incorporated into the General Corporation Law (section 3(10), Consol. Laws, c. 23); it is by no means clear that the state wished to treat as domestic all federal corporations which may do a continuous business here, even a substantial one. There is no reason why an exception should be made in their favor merely because they hold a federal charter; an entirely adequate motive was to cover such as were domestic in all senses except that they did not get their charters from the state. Thus, it becomes unnecessary for us to decide whether the defendant was "created by or under a law of the United States"; and unless the plaintiffs were non-residents when the cause of action accrued, the defendant may not plead section 48. This would no longer be true if it had had an officer here on whom process could be served, because of the amendment of 1928 to section 19 (Laws N.Y. 1928, c. 809); but, as this was passed after the action was brought, it cannot change the result.
So far as we can see, the plaintiff wins only a Pyrrhic victory. As we said in our original opinion, the evidence showed an accord and satisfaction, from which apparently he can in no way extricate himself. But as he stands upon the fact that nothing of the sort was pleaded, we cannot deny him his day in court on the issue. The District Court will allow the defendant to interpose the plea, but conceivably at the new trial facts may appear which will relieve the plaintiff from it. At any rate we can make no disposition of a matter which is not before us.
The judgment must be reversed and a new trial ordered.
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