The plaintiff, a corporation of New Jersey, served its summons and complaint in the Supreme Court of the state of New York upon one Steinmuller as managing agent of the defendant, a corporation of the state of Indiana. The defendant removed the case to the District Court, appearing specially for the purpose of moving to. set aside the service of process.
[1] It is to be noted at the outset that this action was not removable at all, because it could not have been brought originally in the District Court. Section 28 of the Judicial Code reads:
.i * • * Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.”
The case is therefore different from Goldey v. Morning News Co., 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517, in which the plaintiff was a citizen of New York and the defendant was a corporation of Connecticut.
:[2] But this objection may be waived, and it has been waived by the defendant by virtue of its petition,to remove, and by the plaintiff by virtue of its appearance to contest the motion to set aside service of process. If it had not intended to waive the objection as to juris*507diction, it should have moved to remand. In re Moore, 209 U. S. 490, 28 Sup. Ct. 706, 52 L. Ed. 904, 14 Ann. Cas. 1164.
[3] The contract is alleged to have been made in New York, but to be performed in Indiana; i. e., the defendant agreed to deliver to the plaintiff f. o. b. at Ft. Wayne, Ind., certain merchandise to be paid for in cash, which it subsequently refused to deliver, although the plaintiff was ready then and there to pay for the goods.
The person designated in 1907 under section 16 of the General Corporation Law (Consol. Laws, c. 23) upon whom process may be served within the state having disappeared, and the plaintiff finding no officer or director of the company within the state, served Steinmuller as a managing agent of the defendant in accordance with section 432, subd. 3, Code of Civil Procedure.
Judge Augustus N. Hand found that the company had done business within the state, but that Steinmuller was only a sales agent, without discretionary powers, and acting throughout under the direction and control of the home office in Indiana. The facts that in 1915 he had made one contract, in the absence of proof that he was not then acting without specific directions, and that the New York City Directory since 1912 had described him as agent, were not sufficient to overcome the positive affidavits submitted by the defendant that it had no office, property, nor any agent within the state, except Steinmuller, a sales agent. We concur in this conclusion.
The order is affirmed.
<§zxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
<§c»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes