Sleicher. v. Pullman Co.

NOYES, Circuit Judge. ‘The following facts upon the question whether the defendant railroad company, a foreign corporation, is-doing business in the state of New York, may be regarded as established by the affidavits: (1) Said defendant leases and maintains offices in the state of New York, and employs freight and passenger agents who solicit business therein and negotiate with intending shippers and passengers. In some instances the passenger agent sends out and procures tickets for a prospective passenger from the initial carrier. (2) Said defendant has an assistant secretary in said state, whose special duty is-to attend and give notice of directors’ meetings held in said state. (3) The directors of said defendant company sometimes hold meetings and transact business in said state. (4) Said defendant owns the office furniture, stationery, etc., in said offices in said state. (5) Said defendant, for the convenience of its security holders, remits money to fiscal agents in said state for disbursement among its bondholders and stockholders. (6) Said defendant has transfer agents in said state, who occasionally make transfers of its stock. Upon these facts it is conceded that the service of the process in' this action upon the assistant secretary was valid service under the statutes of the state of New York. Manifestly the defendant was-doing some substantial business in the state, and came within the purview of its statutes relating to the service of process upon foreign corporations. It is true that these statutes are so broad that they may in terms authorize the service of process upon the officers of corporations doing no business whatever in the state. In such a case the service would be set aside upon removal to the Circuit Court. Goldey v. Morning News Co., 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517. But when it appears that such a corporation does some substantial business in a state, and the suit is commenced in a state court, and the service is valid under the state statutes, I do not understand that it should be set aside after removal, even though such action would be taken, had the case been commenced in the Circuit Court. The facts in this case are stronger in favor of the plaintiff than in Denver, etc., R. Co. v. Roller, 100 Fed. 738, 41 C. C. A. 22, 49 L. R. [367] A. 77, and Tuchband v. Chicago, etc., R. Co., 115 N. Y. 437, 23 N. E. 360, which the Supreme Court, in a case brought against the present defendant in the Circuit Court for the Eastern District of Pennsylvania (Green v. Chicago, etc., R. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916), although holding that the solicitation of business did not constitute doing business within the federal rule, distinguished upon the ground that they were cases in which the action was brought in the state” court and the question related to the interpretation of state statutes and the jurisdiction of state courts. In the Denver Case the question was raised, as in the present case, in the Circuit Court after removal. Although not necessary to the decision, I may add that I am not at all certain that, had this case been commenced in the Circuit Court, the principles of the Green Case, in view of the additional facts, would require the setting aside of the service. The motion to set aside the summons and the service thereof is denied.