Three questions are here presented. First, was the defendant properly served with process in this jurisdiction? If so, should the court retain jurisdiction of the cause of action contained in the original complaint? And finally, should the Special Term have permitted the service of a proposed amended complaint?
The plaintiff is a non-resident. The defendant corporation, organized under the laws of Delaware, has its principal place of business in Philadelphia, Penn. Objection to the service is predicated upon the contention that the defendant was not doing business within this State at the time of the attempted service of process upon its secretary in this jurisdiction.
It is conceded that some time in January, 1926, the defendant filed a certificate and obtained permission to do business in this State. It maintained a bank account here for some time and was engaged in a stock selling plan. By affidavits submitted the defendant seeks to show that its activity here was limited solely to this business of stock selling, its certificate to do business having been secured for such purpose, and that it had entirely ceased doing any business whatever here as early as 1928.
Upon the proof before us we are of opinion that the Special Term properly refused to vacate the service. Defendant at one time was doing business in this State. A condition once shown to exist is presumed to continue until the contrary is shown. (Currie v. International Magazine Co., Inc., 256 N. Y. 106, 111; Di Ionna v. Terry & Tench Co., Inc., 203 App. Div. 270; Burke v. City & County Contract Co., 133 id. 113.) Moreover, it appears that the defendant’s secretary, on whom service was made, and its president both have offices in this State; that the newspaper published by the defendant refers in its “ masthead ” to a New York office; that the New York city telephone directory has a listing of the defendant; and that certain mail facilities are furnished to defendant here. In addition the certificate of authority to do business here was not surrendered by the defendant until after an abortive attempted service in the present action was made. These facts, it seems to us. were sufficient to justify denial of the motion to vacate the service
*73• The original complaint was dismissed on the ground that the court should not assume jurisdiction. Both plaintiff and defendant are non-residents. The cause of action for libel pleaded in the original complaint arose without this State. In the present circumstances the court was vested with discretion to refuse jurisdiction. (Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152; Murnan v. Wabash Railway Co., 246 id. 244.) We are of opinion that the court’s discretion was wisely exercised and we affirm the dismissal of the original complaint in our own discretion.
We are further of opinion that the Special Term properly refused permission to serve the proposed amended complaint. This purported to plead a cause of action arising in this State. Paragraph eleventh of such proposed complaint, which it is contended pleads a cause of action arising in this jurisdiction, reads:
“ Eleventh. That the said daily newspaper, known as and called the ‘ Philadelphia Daily News ’ and containing the said false and malicious statements, was printed, published and circulated by the defendant on the 26th day of September, 1930, and was widely published and circulated by defendant among and read by the persons named in the said letter, their friends and acquaintances, and generally circulated in the State of New York and elsewhere.” (Italics ours.)
In our opinion this paragraph does not plead a cause of action in this State. It should be pleaded without equivocation or doubt that the article complained of was published by the defendant in this jurisdiction; that the defendant circulated in this State the paper containing the libelous matter; and that it was read by persons in this State. (Prescott v. Tousey, 50 N. Y. Super. Ct. [18 J. & S.] 12; Youmans v. Smith, 153 N. Y. 214; Gerstein, Inc., v. New York Evening Journal, Inc., 236 App. Div. 446.) The italicized portion of the pleading appears to have been phrased so as to purposely avoid the requirement we have noted.
It follows that the judgment aud order should be affirmed, with costs to the defendant, but with leave to plaintiffs, if they be so advised, to serve a complaint in conformity with this opinion.