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October 22, 1968

Morton WALDFOGEL, Defendant

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

Plaintiff Harry Winston, Inc., (Winston), is a retail jeweler with its only offices in New York City. Defendant Morton Waldfogel is a resident of Swampscott, Massachusetts, and has never resided in the State of New York. Defendant apparently owns no property in New York and earns his living in Massachusetts. The parties agree that in the summer of 1964 Waldfogel visited Winston's New York outlet to examine diamond rings with a view to purchasing one for his wife. It is Winston's custom, when dealing with prospective purchasers of substantial reputation and means, to allow its rings to leave the store with the customer "on memorandum". The rings taken on memorandum by Waldfogel to Massachusetts in 1964 were subsequently returned when defendant found a suitable ring elsewhere for his wife. Rings taken on memorandum remain the property of Winston, and the customer assumes the liability of an absolute insurer for their safe return. *fn1"

 Waldfogel had no further contact with Winston until the summer of 1967. On July 6, 1967, Waldfogel visited Winston's New York store again and "discussed with their salesman, Mr. Jack Raticoff, the purchase of a diamond ring for [his] wife." *fn2" The ring he had found in 1964 had been stolen. Winston allowed him to take a 13.39 carat diamond ring back to Massachusetts on memorandum. Waldfogel returned this ring by mail on July 13, 1967, for sizing, and it was immediately sized and mailed back. Several days later Waldfogel telephoned to say his wife wanted a "better-shaped" ring. Winston had just designed a 14.37 carat, pear-shaped diamond ring (not on Waldfogel's order), and this ring was mailed to defendant on July 25, 1967, on memorandum. *fn3"

 On August 31, 1967, Waldfogel returned to Winston's New York store for a third time "bringing the two rings with him in his pocket." *fn4" It is undisputed that the 13.39 carat ring was returned at this time. Plaintiff's brief states that the parties then negotiated over the price of the 14.37 carat ring. *fn5" There is no support for this assertion in any of the affidavits submitted. Mr. Raticoff's affidavit states only that both rings were in Waldfogel's possession in the store. Defendant's brief states that Mrs. Waldfogel may have had the 14.37 carat ring at this time, *fn6" although the affidavits are silent on her whereabouts during this trip. At any rate, Waldfogel does not deny Raticoff's assertion that the 14.37 carat ring was also in his pocket during this visit, and affirms it insofar as he states that this visit was as described in the Raticoff affidavit. *fn7" The briefs are not sources of evidence, and on the affidavits the court takes it as proven merely that Waldfogel did have possession of the 14.37 carat ring on this trip.

 Waldfogel returned with the 14.37 carat ring to Massachusetts. From here, the facts as they are stated in the opposing affidavits conflict. Plaintiff's affidavit states that the terms of a purchase of the ring were discussed in several telephone calls in September, culminating with a call on September 22 in which it was agreed that the ring be sold for $53,500 to Waldfogel. *fn8" The affidavit also states that an invoice showing the sale of the ring was then mailed to Waldfogel along with a letter expressing appreciation for the purchase and an insurance appraisal of the ring. *fn9" Copies of these items are appended to the affidavit as Exhibits H, I, and J. Plaintiff's affidavit also states that repeated efforts to collect the purchase price were made in the fall and winter, and copies of letters of plaintiff to defendant demanding payment are appended to the affidavit as Exhibits K-O. Waldfogel's affidavit denies that there was ever any agreement as to either the purchase of the ring or its price. It is undisputed that the ring was returned by mail to Winston in March of 1968.

 A complaint was filed in this District on May 9, 1968, demanding $53,500 from Waldfogel. The summons and a copy of said complaint were personally served upon Waldfogel on June 12, 1968, in Massachusetts by a Deputy Marshal of that District. Defendant has moved this court to dismiss the action for want of jurisdiction over the person of defendant. Such motion is permitted by Rule 12(b)(2), Fed.R.Civ.P. In the alternative he moves for change of venue to Massachusetts. Rule 4(d)(7), (e) and (f), Fed.R.Civ.P., allows for the service of summons outside the State of New York, and for the obtaining of personal jurisdiction over one so served, if done in accordance with the law of the State of New York relating to personal jurisdiction and service of summons. The parties and the court agree that the relevant New York law is § 302(a)(1), N.Y. CPLR. *fn10" The question for determination then is whether Waldfogel has transacted any business within New York out of which this cause of action has arisen. It is to be kept in mind that interpretations of this statute by the New York Court of Appeals are binding as final authority upon this court.


 A preliminary problem is that of identifying the transaction to which § 302(a)(1) is to be applied. Waldfogel argues that each of his three visits to Winston's New York store were separate and independent transactions, involving only the rings returned and picked up on the respective visits. Therefore, he argues, even if any of these visits, or all of them combined, were to constitute the transaction of business in New York, he would not be subject to personal jurisdiction under § 302(a)(1) because the 14.37 carat ring which is the subject matter of the alleged contract was never picked up or returned on these visits, but always transferred by mail, and the cause of action did not arise out of the transactions composed of these three visits or any one or two of them.

 The court agrees that the 1964 visit cannot be part of the transaction involving the 14.37 carat ring. The purpose of that visit was complete when Waldfogel found the desired ring elsewhere. However, the court finds the transaction involving the 14.37 carat ring to be broad enough to encompass the two visits to New York in the summer of 1967, despite the fact that the 14.37 carat ring did not change hands on these visits. Waldfogel's avowed purpose was to purchase a diamond ring for his wife, and both visits, along with the mailing of the 14.37 carat ring, were in furtherance of this purpose. It is the common purpose which ties each of these acts into a single transaction. Therefore, if the two visits alone or in company with acts connected to the visits, are enough to satisfy the requirement of transaction of any business within New York, then the cause of action does arise out of an "act enumerated in this section" within the meaning of § 302(a), the act being that part of the single transaction involving the purchase of a diamond ring done within the State.

 This broad view of the applicable transaction for purposes of § 302(a)(1) is supported by the New York Court of Appeals in Singer v. Walker, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). Defendant in that case was an Illinois corporation manufacturing geologists' hammers. Plaintiff purchased one in New York and was injured when it broke while he was using it in Connecticut and a chip penetrated his eye. Jurisdiction over defendant in New York under § 302(a)(1) was sustained because of the shipping of substantial quantities of the hammers into New York as a result of solicitation through representatives, catalogues, and advertisements. The court held that "the cause of action asserted is clearly one 'arising from' the purposeful activities engaged in by the appellant in this State in connection with the sale of its products in the New York market." 15 N.Y.2d at 467, 261 N.Y.S.2d at 26, 209 N.E.2d at 82. Yet, on the interpretation of transaction contended for by Waldfogel, the cause of action might have been considered to arise from the isolated act of manufacture of the hammer, an Illinois act. The Court of Appeals rejected such an interpretation in viewing the relevant transaction as including the sale of all New York hammers and the solicitation of such sale. See also A. Millner Company, Inc. v. Noudar, 24 A.D.2d 326, 266 N.Y.S.2d 289 (1st Dept. 1966), where a cause of action for breach of an exclusive distributorship contract was related to New York sales and business on behalf of defendant by its officers; Iroquois Gas Corporation v. Collins, 42 Misc.2d 632, 248 N.Y.S.2d 494 (Sp. Term Erie Co. 1964), where a cause of action for breach of a construction contract by refusal to perform arose out of visits to New York by defendant's representatives to survey the construction site and negotiate a price.

 Cases where the cause of action was not found to arise out of the transaction of business in New York are distinguishable because the business done in New York bore no relation to the transaction giving rise to a cause of action. See Harvey v. Chemie Grunenthal, 354 F.2d 428 (2d Cir. 1965), cert. denied, 384 U.S. 1001, 86 S. Ct. 1923, 16 L. Ed. 2d 1015 (1966); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964); Kirkland v. Sapphire International Touring, Ltd., 262 F. Supp. 309 (S.D.N.Y.1966).

 The cause of action, then, may be considered to have arisen out of a single transaction encompassing the two 1967 visits to Winston's store and all mailings, and the question is narrowed to one of whether any of the acts constituting this transaction satisfy the statutory requirement of a transaction of any business in New York.


 The parties seem to give importance to the place of making the alleged contract. It is clear under the cases that if the contract were entirely executed by both parties in New York, personal jurisdiction could be obtained on that basis alone under § 302(a)(1). Patrick Ellam, Inc. v. Nieves, 41 Misc.2d 186, 245 N.Y.S.2d 545 (Sup.Ct. Westchester Co. 1963); Steele v. De Leeuw, 40 Misc.2d 807, 244 N.Y.S.2d 97 (Sp. Term Nassau Co. 1963). This, however, is not the case. Instead the contract, if indeed there is one, was executed in two states, either by telephone alone or by both telephone and mail. In such a situation this court deems it unimportant to place the contract in New York or Massachusetts for jurisdictional purposes. New York has explicitly held that the fact that the final act of execution of a mailed contract occurred in New York is in and of itself insufficient to confer jurisdiction. Standard Wine & Liquor Co. v. Bombay Spirits Co., 20 N.Y.2d 13, 281 N.Y.S.2d 299, 228 N.E.2d 367 (1967). See also Agrashell, Inc. v. Bernard Sirotta Company, 344 F.2d 583 (2d Cir. 1965) where it is ...

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