By the law of New York, when a foreign corporation, as a
condition to doing local business, appoints an agent upon whom
process may be served and subsequently removes from the state,
service on such agent, though his appointment stand unrevoked, will
not confer jurisdiction in an action by a local corporation upon a
contract between it and such foreign corporation but made and to be
performed in another state when it is not shown that anything was
done in New York in the way either of performance or breach of the
contract, and it is not material that the foreign corporation was
there doing business during a period when the contract was made and
should have been performed. P. 251 U. S.
Page 251 U. S. 374
Such a case must be dismissed for want of jurisdiction upon
removal to the district court from the Supreme Court of New York.
260 F. 856 affirmed.
The case is stated in the opinion.
Page 251 U. S. 376
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error was plaintiff in the courts below, defendant
in error was defendant, and we shall refer to them respectively as
plaintiff and defendant.
The action was brought in the supreme court of the State of New
York, and removed upon motion of the defendant to the District
Court of the United States for the Southern District of New York.
In the latter court, defendant made a motion for an order vacating
and setting aside the service of summons and dismissing the
complaint for lack of jurisdiction of the person of the defendant.
The motion was granted, and the case is here on the jurisdictional
A brief summary of the grounds of action and the proceedings
upon the motion to dismiss is all that is necessary. Plaintiff is a
New York corporation; defendant, one under the laws of Wisconsin,
and a manufacturer and seller of motor cars, known as the "Jeffrey"
and "Rambler," and parts thereof, and motor trucks and parts
thereof. By contracts, in writing, made in Wisconsin by the
plaintiff and defendant, it was agreed that the former should have
the sole right to sell the motor cars and parts
Page 251 U. S. 377
thereof (first cause of action) and the motor trucks and parts
thereof (second cause of action) of defendant in Europe and certain
other foreign places, and to receive certain designated
percentages. The contracts as to motor cars and their parts, and
the trucks and their parts, provided that they (cars, trucks, and
parts) should be sold and delivered to plaintiff (called in the
contracts the "distributor") at Kenosha, Wisconsin, for sale at the
designated places by plaintiff, defendant reserving the right to
fill the orders of plaintiff (distributor) for the cars, trucks,
and parts from any of its defendant's depots in New York City. Cars
and trucks purchased under the contracts to be paid for at Kenosha.
Both contracts continued in effect to July 31, 1915.
There are allegations of performance of the contracts by
plaintiff, their nonperformance by defendant, whereby plaintiff, on
one cause of action, was entitled, it is alleged, to $280,000, and
upon the other $600,000. Judgment is prayed for their sum, to-wit,
The district court has certified three questions, but, as the
first includes the other two, we give it only as it sufficiently
presents the question at issue:
"Whether, in the service of summons, as shown by the record
herein, upon Philip B. Adams, this Court acquired jurisdiction of
the person of the defendant."
Plaintiff contends for an affirmative answer, and adduces the
New York statute which requires of corporations not organized under
the laws of New York, as a condition of doing business in the
state, to file in the office of the secretary of state a
"a place within the state which is to be its principal place of
business, and designating a person upon whom process against the
corporation may be served within the state,"
and the person designated must consent, and the designation
"shall continue in force until revoked by an instrument in writing"
designating some other person.
Page 251 U. S. 378
Defendant complied with the requirements of the statute July 6,
1914, designating 21 Park Row, New York, as its place of business,
and Philip B. Adams as its agent upon whom process might be served.
The designation and appointment have not been revoked.
It is not denied, however, that defendant had removed from the
state before service on Adams, and, as we have stated, the
contracts sued on made the place of their performance Kenosha,
Wisconsin. But, in emphasis of the requirement of the statute, it
is urged that at all of the times of the duration of the contracts
sued on and their breaches, defendant was doing business in the
state, and at any time had the right to transact business in the
state. It is further urged that the contracts contemplated they
might be performed within the state. There is no allegation of such
performance, nor that the present causes of action arose out of
acts or transactions within the state. The other circumstances of
emphasis may be disregarded, as the validity of the service depends
upon the statute, assuming it to be controlling -- that is,
whether, under its requirements, the unrevoked designation of Adams
as an agent of defendant gave the latter constructive presence in
the state. And making that assumption of the control of the
statute, which we do in deference to counsel's contention, for
light we must turn to New York decisions, and there is scarcely
ambiguity in them, though the facts in none of them included an
actual absence from the state of the corporation with which they,
the cases, were concerned.
Bagdon v. Philadelphia & Reading Coal & Iron
217 N.Y. 432, passed upon the effect of a cause of action
arising out of the state, the corporation, however, doing business
within the state, and having complied with the statute in regard to
its place of business and the designation of an agent upon whom
process could be served. But the court throughout the opinion, with
Page 251 U. S. 379
of the necessity of making the ground of its decision the fact
that the corporation was doing business in the state, dwelt upon
the fact, and distinguished thereby Old Wayne Mut. Life Assn.
v. McDonough, 204 U. S. 8
Simon v. Southern Ry. Co., 236 U.
, in both of which the causes of action were based
on transactions done outside of the states in which the suits were
Tauza v. Susquehanna Coal Co.,
220 N.Y. 259, is nearer
in principle of decision than the case just commented upon. The
question of the doing of business within the state by the coal
company was in the case, and was discussed. But the question was
unconnected with a statutory designation of a place of business or
of an agent to receive service of process. However, there was an
implication of agency in the coal company's sales agent under other
provisions of the Code of Civil Procedure of the state and it was
considered that the principle of Bagdon v. Philadelphia &
Reading C. & I. Co., supra,
applied. But the court went
further, and left no doubt of the ground of its decision. It said:
"Unless a foreign corporation is engaged in business within the
state, it is not brought within the state by the presence of its
agents," citing and deferring to St. Louis Southwestern Ry. Co.
v. Alexander, 227 U. S. 218
further said: "The essential thing is that the corporation shall
have come into the state." If prior cases have a different bent,
they must be considered as overruled, as was recognized in
Dollar Co. v. Canadian Car & Foundry Co.,
In resting the case on New York decisions, we do not wish to be
understood that the validity of such service as here involved would
not be of federal cognizance, whatever the decision of a state
court, and refer to Pennoyer v. Neff, 95 U. S.
; St. Louis Southwestern Ry. Co. v. Alexander,
supra; Philadelphia & Reading Ry. Co. v. McKibben,
243 U. S. 264
Meisukas v. Greenough
Page 251 U. S. 380
Ash Coal Co., 244 U. S. 54
People Tobacco Co. v. American Tobacco Co., 246 U. S.
It follows that the district court did not have jurisdiction of
defendant, and its order and judgment dismissing the complaint