The opinion of the court was delivered by: NOONAN
Defendant, Saval, Inc., has made several motions in this action:
I. To dismiss the action, or in lieu thereof, quashing the return of service of the summons on the grounds that:
(a) Saval, Inc. is not amenable to service in New York;
(b) That it was not properly served with process;
II. To dismiss the action on the ground that the Southern District of New York is not a proper forum for the trial of said action.
III. In the alternative, to transfer this action to the United States District Court, for the Southern District of California, Central Division, because of forum non conveniens.
IV. In the alternative, for an order staying all proceedings in this action before this court pending the determination of an action between the plaintiff, Pan American Airways, Inc. and defendant, Saval, Inc. upon the same cause in the State Court of California.
This is an action by Pan American Airways, Inc., a New York corporation, with principal offices in the City and State of New York against Consolidated Vultee Aircraft Corporation, a Delaware corporation, having its plant and offices in the State of California, with license to do business in the State of New York and Saval, Inc., a California corporation, not licensed to do business in New York, but maintaining an office in Hempstead, New York.
The complaint alleges both breach of warranty and negligence on the part of defendant, Saval, Inc., and negligence on the part of the defendant, Consolidated Vultee Aircraft Corporation. The defendant, Saval, Inc. is the moving party. Defendant, Consolidated Vultee has joined with defendant, Saval, Inc., in the motion to transfer this cause to California.
The present action was commenced on July 14, 1949. It seeks to recover the cost of repairs to an aircraft owned by the plaintiff which was damaged in Havana, Cuba, on July 24, 1948. Service of the summons and complaint was made on defendant, Consolidated Vultee Aircraft Corporation, on July 15, 1949. Service was not effected on Saval, Inc., in New York, until July 29, 1949. Meanwhile, Pan American Airways, Inc., apparently mindful of a one year statute of limitations in Cuba, where the accident occurred, commenced an action in the Superior Court in California, on July 22, 1949, in which the defendant, Saval, Inc. has voluntarily entered an appearance. Pan American alleges that the reason that the action was brought in California was to insure that Saval, Inc. would be subject to the jurisdiction of a court, prior to the expiration of the one year statute of limitations.
I. Motion to dismiss or, in lieu thereof, to quash or set aside service of the summons.
This motion, by defendant, Saval, Inc., is based on two grounds:
(a) that it was not amenable to service in New York;
(b) that it was not properly served with process.
The defendant, Saval, is a California corporation engaged in the manufacture and sale of hydraulic, fuel and air control equipment. Its principal office and plant are located in California. It does maintain an office in Hempstead, New York. This office is described by Saval in advertisements and on its stationary as a branch office. In this office the defendant employs two men who are described as 'Sales Engineers.' The duties of the two employees are limited (accordingly to defendant Saval) to the solicitation and forwarding of orders to the home office. They are not authorized to accept orders; the prices they quote to customers are fixed by the home office; they are not ...