I agree with the majority of the court that David O. Selznick Productions, Inc., is not doing business in this State. I do not agree with the conclusion that Vanguard Films, Inc., is doing business here. Miss Flagg, in charge of its office in New York, was employed as "literary agent," but she and her assistant had authority only to receive "literary material for subsequent production" which might be submitted, and to maintain contact, "in accordance with instructions from the principal office of the corporation in California, with such artists, directors, agents and publishers as may be actually located in New York City." She *Page 542 and her assistant read manuscripts and reported to the staff of the corporation in California. They have no power to enter into any contract in behalf of the corporation, or even to negotiate, except "under instructions" sent from the California office. When the corporation decides to purchase literary material, a form of contract is prepared in California and sent to the New York office. It may be signed in New York by the seller of such material, but it is signed in behalf of the corporation by officers or executives in California. The bank account in New York has never had a balance of over $1,600 and has been used only for the expenses of the office. No other business transactions in behalf of the corporation have been regularly carried on in New York and, concededly, no officer or executive of the corporation resides, or has been there on business of the corporation except on isolated occasions where discussion on important matters with New York residents was desirable. This proof, in my opinion, does not meet the test formulated inTauza v. Susquehanna Coal Co. (220 N.Y. 259). The orders should be reversed and the motion to vacate the service of process in New York should be granted.
THACHER, J., concurs in opinion by CONWAY, J., in which LOUGHRAN, LEWIS and DESMOND, JJ., concur upon the appeal of the defendant Vanguard Films, Inc.; LEHMAN, Ch. J., LOUGHRAN, RIPPEY and LEWIS, JJ., concur in opinion by DESMOND, J., upon the appeal of David O. Selznick Productions, Inc.; LEHMAN, Ch. J., dissents in opinion upon appeal of Vanguard Films, Inc., in which opinion RIPPEY, J., concurs.
Ordered accordingly. (See 294 N.Y. 662.)