Opinion
December 3, 1956
In an action to recover damages for wrongful death arising out of an accident in Massachusetts, appellant, a foreign corporation not doing business in this State, was served with the summons by service upon its president who was attending an examination before trial in this State in another action arising out of the same accident, pursuant to notice, no subpoena or order having been personally served upon appellant or its president. The appeal is from an order denying appellant's motion to vacate the service of the summons. Order reversed, with $10 costs and disbursements, and motion granted. The present complaint could not be interposed as a counterclaim in the action in which appellant was attending for examination before trial. Appellant was in this State voluntarily and was immune from service of process. ( New England Ind. v. Margiotti, 270 App. Div. 488, affd. 296 N.Y. 722; Petrova v. Roberts, 245 N.Y. 518. ) In any event, the mere presence in this State of an officer of a foreign corporation not doing business here is not sufficient to confer jurisdiction over the corporation upon the courts of this State. ( Riverside Mills v. Menefee, 237 U.S. 189; Tauza v. Susquehanna Coal Co., 220 N.Y. 259.) Nolan, P.J. Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.