The opinion of the court was delivered by: BARTELS
This is a motion to quash service on the third-party defendant and to dismiss the third-party complaint. Involved is the question whether the acts of the non-domiciliary third-party defendant in relation to the State of New York, fall within the category of transacting 'any business within the State' subjecting it to personal jurisdiction within the State pursuant to Section 302 of the Civil Practice Law and Rules.
The original action was commenced by plaintiff Agrashell, Inc., a Delaware corporation, against the defendant Bernard Sirotta Company (a partnership) and its two partners (Sirotta) for infringement of certain patent rights and licenses in selling pelletized black walnut shells within the last six years within the district and elsewhere, as a result of which infringement plaintiff seeks relief by means of injunction, accounting and damages. Thereafter Sirotta, with leave of the court, joined Hammons Products Company, a Missouri corporation, as a third-party defendant, alleging in their complaint that the said walnut shells were purchased by Sirotta from Hammons pursuant to certain warranties and indemnity agreements and that if Sirotta is liable to Agrashell, then Hammons is similarly liable to Sirotta.
The first contact between the parties was a printed circular from Hammons to Sirotta, dated April 30, 1958, advertising Hammons' products and soliciting orders f.o.b. Stockton, Missouri. Sirotta replied on May 2nd requesting best price quotations and samples 'in both Truck Load, and Car Load quantities, also state deliveries on your various grades.' On May 15th Hammons quoted car load lots 'f.o.b. Bolivar, Missouri' and 'f.o.b. Stockton, Missouri'.
On June 16th, apparently at Sirotta's request, a quantity of black walnut shell samples was delivered to Sirotta by Hammons, via truck, for which there was no charge. On July 2nd Hammons wrote Sirotta again quoting prices per ton f.o.b. Stockton, Missouri. On July 23rd Sirotta entered an order with Hammons for one truckload at a specified price 'plus trucking charge not to exceed $ 1.42 per 100 lbs. delivered to us in Brooklyn NY' and requesting Hammons to do whatever it could 'to keep the delivered prices to us as low as possible.' The letter contained the following instructions:
'If you can negotiate for a rate lower than $ 1.42, please do so. We leave that to your discretion. Regarding the trucking company, we cannot use any trucking outfit that might violate any ICC regulations. Since we are not familiar with your trucking arrangements we would expect you to make all arrangements for your account with the trucking company, and this order is to be delivered to su FOB our door, Brooklyn NY -- and you are to assume all responsibility for trucking arrangements. Prepay all freight charges to us so that we have no dealings with the trucking outfit. If you can work out a rate of less than $ 1.42 cwt, please do so.'
In the same letter Sirotta inquired of the trucker's route in case they wished the trucker to drop off material along the way.
On August 6th, pursuant to said order, there was delivered by a private trucker to Sirotta, a quantity of black walnut shells invoiced by Hammons at $ 1,079.04, which included $ 1.42 per 100 lbs. freight, the invoice stating that it was 'SHIPPED VIA Truck'.
On November 8th Sirotta ordered another truckload of black walnut shells, stating 'Ship via your trucker, as before, freight prepaid to us and bill us FOB our door, as previously' and stating that Sirotta was sending Hammons new 5 ply bags and would arrange 'to have a lab in St. Louis do the testing' of the bags.
Following these deliveries to Brooklyn apparently made by independent truckers engaged by Hammons, and also deliveries to other parts of the country at Sirotta's instructions, Sirotta forwarded on December 17, 1958 a blanket purchase order to Hammons for 250 tons of ground black walnut shells, providing for various releases during the year 1959 under f.o.b. terms reading as follows:
'F.O.B. POINTS at Purchaser's option:
Stockton, Mo. in Truckload, Less Carload or Less Truckload Lots
Bolivar, Mo. or El Dorado Springs, Mo. in Carload lots'
and containing the following provision:
'Seller to make and route shipments in accordance with ...