Worcester v. Nordyke & Marmon Co.

Order denying motion to vacate and set aside the service of the summons and complaint herein upon the defendant Nordyke & Marmon Company reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Reading the contracts and the affidavits, we conclude that the proof fails to establish either that the appellant is engaged in business in this State or that the defendant Marmon Automobile Company is its managing agent within the provisions of section 229 of the Civil Practice Act. (Holzer v. Dodge Brothers, 233 N. Y. 216; Dollar Co. v. Canadian C. & F. Co., Limited, 100 Misc. 564; affd., 180 App. Div. 895. See, also, Special Term opinion in Court of Appeals Record on Appeal in Ultramar Co. v. Minerals Separation, Ltd., sustained by that court in 236 N. Y. 647.) Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ., concur.