The two appeals, here heard together, have one common question. In both cases plaintiff sues as the assignee of certain notes transferred to it by Black Watch Farms, Inc. (hereinafter Farms), a New York resident. The defendant Meyers, a Massachusetts resident, executed his notes in Massachusetts and the defendant Seltzer, a New Jersey resident, executed his notes in New Jersey. The notes were given for the purchase of cows in a herd and in pursuance of a contract whereby Farms agreed to maintain the cows, arrange for their breeding and for the sale of the offspring. All negotiations were at the solicitation of Farms and took place at the residence of defendants. Farms had several herds which were maintained in several States, not including New York. It did have a central office in Wappingers Falls, New York, where all records were kept, decisions were made as to breeding, and certain processes in connection with artificial insemination were carried out. Defendants were served in their home States purportedly in compliance with CPLR 302 (subd. [a], par. 1). The question is whether the service was proper. One Special Term held in the Meyers case that the service was valid, and another Special Term in the Seltzer case that it was not. While the majority holds to the contrary, we believe the service to be invalid and that the appeals should be disposed of accordingly.
The test applied is whether the defendant has engaged in some purposeful activity in this State in connection with the matter in suit (Elman v. Belson, 32 A D 2d 422). Here the plaintiff has pointed to no activity in this State by these defendants, pur*31poséful or otherwise, and it must he assumed there was none. All that the plaintiff relies on are Farms’ activities. Where •such activities amount to acting as agent or representative of the defendant they may rightfully be considered as activities by the defendant himself. Where the acts do not amount to representation and are merely the performance of what the plaintiff did in order to carry out its obligation, such performance does not subject the defendant to jurisdiction here (Ferrante Equip. v. Lasker-Goldman, 26 N Y 2d 280; Glassman v. Hyder, 23 N Y 2d 354).
Mabkewich, J. P., Kupfebman and Tilzee, JJ., concur in Per Curiam opinion; Stetxeb, J., dissents in an opinion, in which Nunez, J., concurs.
Order, Supreme 'Court, New York County, entered on April 20, 1971, affirmed, without costs and without disbursements.
Order, Supreme Court, New York County, entered on October 18, 1971, granting defendant’s motion to dismiss the complaint, reversed, on the law, without costs and without disbursements, and the motion denied; order of said court, entered on November 11, 1971, reversed, on the law, without costs and without disbursements, and the motion granted; and appeal from order of said court, entered on October 18, 1971, denying reargument, dismissed, without costs and without disbursements.