Opinion
May 15, 1973
Order, Supreme Court, New York County, entered on May 22, 1972, unanimously reversed, on the law and as a matter of discretion, and the motion to dismiss granted upon condition that defendant serve notice in writing upon plaintiff within 20 days from the date of the order entered hereon that it will accept service in Canada. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The action is for breach of a contract of carriage of merchandise from Cincinnati, Ohio, to Toronto, Canada. Plaintiff is a Canadian corporation not licensed to do business here. While the defendant may be sued here, that is not the test of whether the court should entertain the action ( Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356). This jurisdiction, except for the fact that defendant is amenable to process here, has no connection whatsoever with the parties or the subject matter of the suit. The defendant has agreed to appear in any action started in the proper jurisdiction. The doctrine of forum non conveniens applies ( Barry v. American Home Assur. Co., 38 A.D.2d 928, affd. 31 N.Y.2d 684).
Concur — Stevens, P.J., Markewich, Murphy, Steuer and Capozzoli, JJ.