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Central Pub. Co., Inc. v. Wittman

Supreme Court of New York, Appellate Division

March 23, 1954

CENTRAL PUBLISHING COMPANY, INC., Respondent,
v.
GAENELLE WITTMAN et al., Doing Business as TV SPOTLIGHT PUBLICATIONS, Appellants.

APPEAL from an order of the Supreme Court at Special Term (GREENBERG, J.), entered December 11, 1953, in New York County, which denied a motion by defendants to vacate a warrant of attachment, to set aside service of the summons, and to dismiss the complaint in an action for work, labor and services and for breach of contract on the ground that the court should decline to accept jurisdiction of the persons or the subject matter and under the doctrine of forum non conveniens. The warrant of attachment was issued out of the Supreme Court, New York County, and a levy was made thereupon, prior to the personal service without the State of the summons and complaint.

COUNSEL

Francis Finkelhor, appearing specially for appellants.

David N. Fields for respondent.

Page 493

Per Curiam.

Plaintiff is a foreign corporation organized under the laws of Indiana without authority to do business within the State of New York; both defendants are non-residents of the State of New York and residents of Indianapolis, Indiana; the contract sued upon was made, was to be performed and allegedly was breached by defendants in Indiana. On all the facts disclosed, we think the interests of justice, the convenience of the court and the parties will be better served if this action is prosecuted and disposed of in the jurisdiction of the parties and the cause. These are sufficient reasons for the exercise of this court's discretion under the doctrine of forum non conveniens to refuse to entertain the action. Freedom of commerce, which is to be encouraged, and New York as a commercial center would be ill served if property attracted here from all over the world is to be at the risk of attachment and its owners subjected to the jurisdiction of our courts in all sorts of actions by non-resident plaintiffs against non-resident defendants when the State and the property have no nexus with the plaintiff or his cause of action (see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 509).

In Bata v. Bata (304 N.Y. 51, 55-57), the Court of Appeals merely held that as a matter of law the Appellate Division did not err in affirming an order of Special Term denying defendant's motion to dismiss on the ground offorum non conveniens; the court pointed out that one of the Bata corporations was incorporated in New York and had an office here; that there were pending in New York courts two other litigations between the parties, one of which had been tried and reviewed by the Appellate Division; that in the very nature of the state of facts involved therein 'with the assets scattered all over the world, there is no one 'appropriate' forum, and that the difficulties and inconveniences listed by defendant would be found, in greater or less number, in any suit brought anywhere to determine these issues.' But the Court of Appeals also (p. 56) expressly held: 'However, it is now clear that the courts have power, in contract and other kinds of property litigation between non-residents, to decline, as well as to accept, jurisdiction.'

Accordingly, the order denying defendants' motion to vacate the warrant of attachment should be reversed and the motion granted, with costs and disbursements to defendants-appellants. Settle order.

Page 494

BREITEL, J. (dissenting).

There has been no showing in this case that the convenience of the parties will be seriously and adversely affected by having the situs of the litigation in New York. On the other hand, it is reasonable to assume that the bringing of an action in New York by an Indiana plaintiff arises out of some necessity. The fact that an asset of the defendants was located in this State may explain that necessity. That is a stronger circumstance justifying keeping jurisdiction than when jurisdiction is obtained solely by personal service on a non-resident defendant, rather than, as in this case, by attachment of his property here. Where an asset is located here it is strongly suggestive that there may be proper or needful basis for the action being brought in New York.

The Court of Appeals has always held that a transitory action arising in contract between non-residents would be entertained in this State. In Hutchinson v. Ward (192 N.Y. 375) the court said: 'We have no policy in this state which is affected by permitting the suit. It is not a case where the plaintiff is seeking to enforce some peculiar liability, or remedy, created by a foreign state; he is seeking to enforce a common-law obligation, which has not wholly lost its force. The action is transitory in its nature and is maintainable outside of the state where the contract was made. The courts of this state are open to all suitors and will enforce transitory rights of action, where the liability asserted is recognized by the common law, is contractual in its nature and is not violative of our public policy. This obligation of comity is only denied, as before suggested, where a foreign statute is sought to be enforced against a citizen, which has created a liability, or has granted a remedy, unknown to the common law, or contrary to our declared policy. (Marshall v. Sherman, 148 N.Y. 9.)' (P. 381.) The dismissal of the complaint by the trial court and the Appellate Division was reversed.

Later, in Wedemann v. United States Trust Co. (258 N.Y. 315) the Court of Appeals spoke even more affirmatively about the right to refuse jurisdiction in transitory actions between non-residents. Said the court: 'In actions between non-residents founded on tort where the cause of action arises outside this State, the right to refuse jurisdiction is fully recognized. (Gregonis v. Philadelphia & Reading Coal & Iron Co.,235 N.Y. 152, 160, Murnan v. Wabash Ry. Co.,246 N.Y. 244.) In actions on contract, where the enforcement of a common-law ...


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