The opinion of the court was delivered by: TYLER
In this diversity action, defendant Mohawk Tablet Company ("Mohawk"), a Delaware corporation whose principal place of business and only plant are in Chicago Heights, Illinois, moves for an order dismissing the complaint for breach of contract by plaintiff Northland Paper Company, Inc., a New York corporation which has its principal office in New York City and a paper mill in Norfolk, New York.
Defendant moves pursuant to Rule 12(b)(2), F.R.Civ.P., for dismissal because of lack of in personam jurisdiction on the ground that it did not transact business in New York State within the meaning of Section 302(a)(1) of the Civil Practice Law and Rules ("CPLR"), New York's jurisdictional "long-arm statute". Defendant also moves, pursuant to Rule 12(b)(4), F.R.Civ.P., for dismissal because of insufficiency of process upon it at its office in Chicago Heights, Illinois.
Because of the presence of issues of fact bearing on this jurisdictional question, a hearing was held on January 4, 1967, to adduce evidence on this aspect of the controversy. The following discussion incorporates the findings of fact and conclusions of law reached by the court as a result of that hearing.
I. THE LOCUS OF THE NORTHLAND-MOHAWK NEGOTIATIONS
Section 302 of the CPLR provides, in relevant part:
"(a) Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any nondomiciliary * * * as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:
1. transacts any business within the state * * *."
"Mohawk basically contends that it conducted no business in New York State which was related to the contract; specifically, Mohawk maintains that no part of the contract negotiations was conducted here. The validity of these arguments will be decided within the factual framework which is summarized below."
In the spring of 1965, Mohawk wanted to purchase some paper in order to fulfill its obligations under a government contract. On April 9, Alex Golden, then president of Mohawk, came to New York City to discuss a contract for the sale of the needed paper with Harry Zucker, who was vice-president of Monodon Paper Corporation. Golden proceeded to Zucker's office at 200 Park Avenue where he was introduced to Jerome Sonnenborn, who was president of Monodon. Following negotiations, to be described and analyzed hereinafter, a contract was agreed upon by the three men and a written commitment for the sale was given to Golden.
When Golden returned to Chicago, he had one of his employees draw up a purchase order to "Monodon Paper Corporation". This order was subsequently sent to the offices of Zucker and Sonnenborn and represented the formal confirmation of the contract between Monodon and Mohawk. A few days later, however, Zucker called Golden and asked him to rewrite the purchase order to the "Northland Paper Company" instead of to Monodon. There was no discussion as to changes or possible changes in any of the terms and conditions set out in the original purchase order drawn to Monodon. The requested new order was duly drawn up and sent to Zucker as requested.
On the basis of these facts, defendant urges that the Northland-Mohawk contract, here sued upon, was not negotiated in New York. In essence, defendant contends that since the original purchase order written to Monodon was replaced by one written to Northland, which was, in fact, a wholly-owned subsidiary of Monodon, the court cannot take into consideration the April 9 negotiations among Golden, Zucker, and Sonnenborn in deciding whether or not this court has jurisdiction over Mohawk pursuant to Section 302(a)(1) of the CPLR.
Defendant's position is untenable because it seeks to have the court rule on a highly technical basis which gives form unwarranted pre-eminence over substance. It is clear that the contract in question here resulted from the negotiations of April 9. Conversely, it is clear that but for the April 9 talks among Golden, Zucker, and Sonnenborn, this contract would never have been consummated. The issuance of a second purchase order drawn to Northland rather than Monodon resulted in no alteration of the terms and conditions of the original contract nor was any modification mentioned when the subject of the second purchase order was discussed. Although the corporate identity of the selling firm was changed, the same men remained responsible for the formation and the execution of the contract. In sum, the substitution of Northland for Monodon had no practical or ...