Longines-Wittnauer Watch Co. V. Barnes & Reinecke, 15 Ny2d

15 N.Y.2d 443 Page 1

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

service of process on it within foreign state--in Longines-Wittnauer Watch Co. v Barnes & Rei- second action to recover damages for personal in- necke juries and property damage resulting from explo- 15 N.Y.2d 443, 261 N.Y.S.2d 8 sion of tractor-drawn steel tank, jurisdiction was N.Y. 1965. not obtained of foreign manufacturer of tank by service of process on it in foreign state since its im- 15 N.Y.2d 443, 209 N.E.2d 68, 261 N.Y.S.2d 8, 24 proper assemblage of tank was “tortious act” not A.L.R.3d 508 committed “within” state--in third action to recover damages sustained when geologist's hammer manu- Longines-Wittnauer Watch Co., Inc., Respondent, factured and labeled without state broke, jurisdic- v. tion of foreign manufacturer cannot be sustained on Barnes & Reinecke, Incorporated, Appellant. basis of “tortious act” committed “within” state- John Feathers et al., Respondents, -but can be sustained on basis that manufacturer v. transacted business within state. Elizabeth McLucas, as Administratrix of the Estate of Robert J. McLucas, Deceased, et al., Defendants, (1) The “long-arm” statute (CPLR 302) which, ef- and Darby Corporation, Appellant. fective September 1, 1963, granted jurisdiction to Frederick F. Singer, Individually and as Guardian New York courts over a nondomiciliary who ad Litem of Michael Singer, an Infant, Respondent, “transacts any business within the state” or v. “commits a tortious act within the state” embraces Alan Walker, Doing Business as Walker's Minerals, suits instituted after its effective date but based on Defendant, and Estwing Manufacturing Co., Inc., previously accrued causes of action. Section 302 is Also Known as Estwing Manufacturing Company, of a procedural and remedial nature and thus ap- Appellant. plicable to actions thereafter instituted for the re- Court of Appeals of New York dress of wrongs already done. It does not create new rights but merely facilitates the enforcement Argued January 7, 1965; locally of pre-existing rights. Moreover, CPLR Decided May 27, 1965. 10003 states that the CPLR “shall apply to all ac- CITE TITLE AS: Longines-Wittnauer Watch Co. v tions hereafter commenced” whether based on pre- Barnes & Reinecke viously or subsequently accrued causes of action. The retroactive application of CPLR 302 is consti- HEADNOTES tutionally valid. Process service on nonresidents (2) In an action for damages for breach of warranty “long-arm” statute (CPLR 302) is procedural in in the manufacture and sale of machines by a for- nature and embraces suits commenced after its ef- eign corporation having its place of business in fective date based on previously accrued causes of Chicago, personal jurisdiction of defendant was action--in action for damages for breach of war- properly acquired by service upon it of a summons ranty in connection with manufacture and sale of and complaint in Illinois, where defendant's activit- machines, foreign manufacturer's activities within ies *444 within this State in connection with the state constituted “transact[ion of] any business sale included substantial preliminary negotiations within the state” within CPLR 302 so as to give through high-level personnel during a period of New York courts jurisdiction of manufacturer by some two months; the actual execution of a supplementary contract; the shipment for use here, subject

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to acceptance following delivery, of two specially The tortious acts of manufacturing and labeling the designed machines, priced at $118,000, and the hammer occurred in Illinois and are insufficient to rendition of services over a period of some three satisfy the requirement of paragraph 2 that the months by two defendant's top engineers in super- “tortious act” be one committed “within” this State. vising the installation and testing of the complex That a product defectively manufactured and mis- machines. Defendant's contacts with this State were leadingly labeled in one state is marketed and sold such that the maintenance of the action does not of- in another cannot serve to change the place where fend traditional notions of fair play and substantial the original tortious acts were committed or to cre- justice. ate a new tortious act.

(3) In a second action to recover damages for per- (5) Jurisdiction of the Illinois manufacturer, sonal injuries and property damage resulting from however, can be sustained on the ground that it the explosion in New York of a tractor-drawn steel “transact[ed] ... business within the state” (CPLR tank manufactured in Kansas by a Kansas corpora- 302, subd. [a], par. 1) and that the pleaded cause of tion, sold to a Missouri corporation which mounted action is one “arising” therefrom. Paragraph 1 is it on a wheelbase and then in turn sold to a licensed not limited to actions in contract and applies to tort interstate carrier in Pennsylvania whose agents actions when supported by a sufficient showing of were driving its tractor in this State when the tank facts. Defendant shipped substantial quantities of exploded, personal jurisdiction was not obtained, its products into this State as the result of solicita- pursuant to CPLR 302 (subd. [a], par. 2), of the tion here through a local manufacturer's represent- Kansas corporation by service of a summons and ative and through catalogues and advertisements complaint upon it in Kansas. The Kansas corpora- and the injury causing hammer, purchased from a tion never transacted business in New York, and the New York dealer, was one of such products. De- tortious act charged against it -- that it improperly fendant's activities in this *445 State are sufficient designed and assembled the tank -- occurred in to satisfy the statutory criterion of transaction of Kansas. The language of paragraph 2 conferring business as well as the constitutional requirement personal jurisdiction over a nondomiciliary if he of minimum contacts. It is not determinative that “commits a tortious act within the state” cannot be the formal execution of its sales contracts may have read as synonymous with “commits a tortious act occurred in Illinois rather than New York. Nor is it without the state which causes injury within the a controlling consideration that the actual injury state”. The occurrence of the injury in this State happened to take place in Connecticut, since the cannot serve to transmute an out-of-state tortious cause of action asserted is clearly one “arising act into one committed here within the sense of the from” the purposeful activities engaged in by de- statutory wording. (Gray v. American Radiator & fendant in this State in connection with the sale of Sanitary Corp., 22 Ill. 2d 432, not followed.) its products in the New York market.

(4) In a third action to recover damages for person- Longines-Wittnauer Watch Co. v. Barnes & Rei- al injuries sustained when a geologist's hammer necke, 21 A D 2d 474, affirmed. manufactured in Illinois by an Illinois corporation which marked it “unbreakable”, and purchased for Feathers v. McLucas, 21 A D 2d 558, reversed. infant plaintiff in New York, broke in Connecticut, Singer v. Walker, 21 A D 2d 285, affirmed. and damaged infant plaintiff's eye, personal jurisdiction of the manufacturer on the ground that it SUMMARY committed a tortious act within the State within CPLR 302 (subd. [a], par. 2) cannot be sustained. Appeal, in the first above-entitled action, by per-

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mission of the Appellate Division of the Supreme aside the service of the summons and complaint and Court in the First Judicial Department, from an or- denying such motion?” der of said court, entered July 2, 1964, which affirmed an order of the Supreme Court at Special POINTS OF COUNSEL Term (Samuel M. Gold, J.), entered in New York Chester Bordeaufor appellant in the first above- County, denying a motion by defendant for judg- entitled action. I. Section 302 of the CPLR, a juris- ment dismissing the complaint. The following ques- dictional statute creating remedies heretofore tion was certified: “Was the Appellate Division cor- nonexistent in New York, should be applied pro- rect in affirming the order of the Supreme Court, spectively only to acts postdating its effective date, New York County, entered on March 17, 1964, September 1, 1963. (Jacobus v. Colgate, 217 N. Y. denying defendant's motion to dismiss the action 235;Nelson v. Miller, 11 Ill. 2d 378;Ogdon v. Gi- for lack of jurisdiction?” anakos, 415 Ill. 591;Kurland v. Chernobil, 260 N. Appeal, in the second above-entitled action, by per- Y. 254;Gruber v. Wilson, 276 N. Y. 135;Kitchen v. mission of the Appellate Division of the Supreme Farm & Home Broadcasting Co., 30 Misc 2d 962; Court in the Third Judicial Department, from an or- Hasse v. American Photograph Corp., 299 F. 2d der of said court, entered July 23, 1964, which (1) 666;Franklin v. Sovereign Camp W. O. W., 145 reversed, on the law and the facts, (a) an order of Okla. 159;In re Layman's Estate, 208 Okla. 174; the Supreme Court at Special Term (Isadore Book- Nevins v. Revlon, 23 Conn. S. 314; McGee v. Inter- stein, J.; opinion 41 Misc 2d 498), entered in Rens- national Life Ins. Co., 355 U. S. 220;Piscina v. City selaer County, granting a motion by defendant-ap- of New York, 198 Misc. 315;Dauphin Deposit Trust pellant for judgment dismissing the complaint and Co. v. Commercial Travelers Mut. Acc. Assn., 8 (b) the judgment entered thereon, and (2) denied the Misc 2d 210;Simonson v. International Bank, 14 N motion. A finding of fact made by the court at Spe- Y 2d 281;Matter of Berkovitz v. Arbib & Houlberg, cial Term was reversed and additional facts were 230 N. Y. 261;Coane v. American Distilling Co., found by the Appellate Division. The following 298 N. Y. 197.)II. Even if section 302 of the CPLR question was certified: “Was the Appellate Division were applied retroactively, there has been no trans- correct in reversing, on the law and the facts, the action of business within this State resulting in a order granting defendant-respondent's motion to set cause of action arising therefrom. (International aside the service of the summons and complaint and Shoe Co. v. Washington, 326 U. S. 310;Coon v. to dismiss the causes of action alleged in the com- Whitmore, 9 Utah 2d 250;National Gas Appliance plaint, and denying such motion?” Corp. v. AB Electrolux, 270 F. 2d 472, 361 U. S. 959;Grobark v. Addo Mach. Co., 18 Ill. App. 2d 10, Appeal, in the third above entitled action, by per- 16 Ill. 2d 426;Hanson v. Denckla, 357 U. S. 235;Ir- mission of the Appellate Division of the Supreme gang v. Pelton & Crane Co., 42 Misc 2d 70.)III. Court in the First Judicial Department, from an or- The printed recital in purchase order No. 4799 does der of said court, entered May 26, 1964, which (1) not constitute the making of the agreement in suit a reversed, on the law, an order of the Supreme Court transaction of any business in New York resulting at Special Term (Jacob Markowitz, J.), entered in in a cause of action arising therefrom. (Hutchison v. New York County, granting a motion to vacate and Ross, 262 N. Y. 381;*447Bank of New York & set aside service of the summons and complaint on Trust Co. v. Atterbury Bros., 226 App. Div. 117; defendant-appellant, and (2) denied the motion. The Kincaid v. Archibald, 73 N. Y. 189;Draper v. Snow, following question was certified: “Was the Appel- 20 N. Y. 331.) late Division correct in reversing, on the law, the Henry P. Poole for respondent in the first above- order granting defendant-respondent's motion to set entitled action. I. Section 302 of the CPLR applies

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to acts occurring prior to September 1, 1963, where Blessing Co., 405 Pa. 12;Hellriegel v. Sears suit is instituted after that date. (International Shoe Roebuck & Co., 157 F. Supp. 718;Milligan v. Co. v. Washington, 326 U. S. 310;Nelson v. Miller, Brooklyn Warehouse & Stor. Co., 34 Misc. 55; 11 Ill. 2d 378;Bluff Cr. Oil Co. v. Green, 257 F. 2d Trippe Mfg. Co. v. Spencer Gifts, 270 F. 2d 821;In- 83;McGee v. International Life Ins. Co., 355 U. S. sull v. New York World-Tel. Corp., 273 F. 2d 166, 220;Developers Small Business Inv. Corp. v. Puerto 362 U. S. 942;McMahon v. Boeing Airplane Co., Rico Land & Development Corp., 42 Misc 2d 23; 199 F. Supp. 908;Magnaflux Corp. v. Foerster, 223 Muraco v. Ferentino, 42 Misc 2d 104;Patrick El- F. Supp. 552;Deveny v. Rheem Mfg. Co., 319 F. 2d lam, Inc., v. Nieves, 41 Misc 2d 186;Petterson v. 124;Tauza v. Susquehanna Coal Co., 220 N. Y. Van Auken, 43 Misc 2d 162;Platt Corp. v. Platt, 42 259;McDonald v. Mabee, 243 U. S. 90.)II. The ex- Misc 2d 640;Jacobus v. Colgate, 217 N. Y. 235; ercise of personal jurisdiction over defendant-appel- Piscina v. City of New York, 198 Misc. 315;Kur- lant by the courts of New York on the facts of this land v. Chernabel, 260 N. Y. 254.)II. The acts of case deprives it of due process in violation of the defendant satisfy the transaction of any business Fourteenth Amendment to the Constitution of the test and the minimum contacts requirement to sus- United States and section 6 of article I of the Con- tain jurisdiction under section 302 of the CPLR. ( stitution of New York. (Long v. Victor Prods. Simonson v. International Bank, 14 N. Y. 2d 281; Corp., 295 F. 2d 577; Steingold v. Capital Airlines, Hass v. Fancher Furniture Co., 156 F. Supp. 564; 34 Misc 2d 33, 19 A D 2d 778;Randy Knitwear v. National Gas Appliance Corp. v. AB Electrolux, American Cyanamid Co., 11 N Y 2d 5;MacPherson 270 F. 2d 472, 361 U. S. 959;Iroquois Gas Corp. v. v. Buick Motor Co., 217 N. Y. 382;Thomas v. Collins, 42 Misc 2d 632;Fremay, Inc., v. Modern Winchester, 6 N. Y. 397;O'Brien v. Comstock Plastic Mach. Corp., 15 A D 2d 235;Irgang v. Foods, 123 Vt. 461;Atkins v. Jones & Laughlin Pelton & Crane Co., 42 Misc 2d 70;Grobark v. Steel Corp., 258 Minn. 571;Goldberg v. Kollsman Addo Mach. Co., 18 Ill. App. 2d 10, 16 Ill. 2d Instrument Corp., 12 N Y 2d 432;Lewin v. Bock 426.). III. The provision of the agreements that Laundry Mach. Co., 42 Misc 2d 599.)III. Subject- “This purchase order is a contract made in the State ing a nondomiciliary corporation which only per- of New York and governed by the laws thereof” formed work on a component part to jurisdiction of and defendant's other contacts with the State of this State merely because the completed article, New York are sufficient to sustain this court's juris- while being fortuitously used in this State by the diction. (National Rental v. Szukhent, 375 U. S. vendee of the manufacturer of the completed 311.) product, caused injury here is prohibited by the William J. Pentak and Ernest P. Lyons for appellant commerce clause of the Constitution. (Gibbons v. in the second above-entitled action. I. CPLR 302 Ogden, 9 Wheat. [U. S.] 1; Houston & Texas Ry. v. requires presence within the state at the time the United States, 234 U. S. 342; People v. Cunard “tortious act” is committed, and the words “tortious White Star, 280 N. Y. 413;Davis v. Farmers Co-op. act” were not deemed synonymous with the word Co., 262 U. S. 312;Kalfus v. Anderson, 186 Misc. “tort” or “tortious injury” by the New York Legis- 110, 270 App. Div. 888;Matter of Banque de lature and, therefore, jurisdiction over the person of France v. Supreme Ct., 287 N. Y. 483,316 U. S. defendant by service made in the State of Kansas 646; Eighth Ave. Coach Corp. v. City of New York, was not acquired. (Gray v. American Radiator & 286 N. Y. 84;Deveny v. Rheem Mfg. Co., 319 F. 2d Sanitary Corp., 22 Ill. 2d 432;Perkins v. Benguet 124;Smyth v. Twin State Improvement Corp., 116 Min. Co., 342 U. S. 437;Bryant v. Finnish Nat. Air- Vt. 569;Tauza v. Susquehanna Coal Co., 220 N. Y. line, 22 A D 2d 16;*448Lawrence Constr. Corp. v. 259;Matter of Baltimore Mail S. S. Co. v. Fawcett, State of New York, 293 N. Y. 634;Handler v. Rem- 269 N. Y. 379.)IV. Pursuant to section 93 of the ington Arms Co., 144 Conn. 316;Rufo v. Bastian- General Construction Law, and under the facts in

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

this case, CPLR 302 (subd. [a], par. 2) cannot be Everett, 180 N. Y. 452.)*450 applied retroactively since it is *449 substantive in Harry L. Koenig for respondent in the third above- character and would affect existing rights. (Matter entitled action. I. The cause of action arose out of of Miller, 110 N. Y. 216;Saltzer & Weinsier v. the commission of a tortious act and the transaction McGoldrick, 295 N. Y. 499;McConnell v. Carib- of some business by defendant in the State. II. Sec- bean Petroleum Co., 278 N. Y. 189;Smith v. Boston tion 302 is constitutionally sound and retroactively & Albany R. R. Co., 99 App. Div. 94, 181 N. Y. enforcible. III. Res judicata has no application to 132;Matter of Benjamin v. State Liq. Auth., 17 A D the case at bar. 2d 71;Payne v. New York, S. & W. R. R. Co., 201 N. Walter Herzfeld, Cecelia H. Goetz and Bernard J. Y. 436;Shielcrawt v. Moffett, 294 N. Y. 180;Totero Wald for Chemie Gruenenthal G. m. b. H., amicus v. World Tel. Corp., 41 Misc 2d 594;Loomis v. curiæ.I. The language employed by the Legislature Delta Chevrolet, 20 Misc 2d 441.) faithfully reflects its intention not to claim jurisdic- William H. Ivimey for respondents in the second tion over foreign wrongful acts. (Meltzer v. above-entitled action. I. CPLR 302 (subd. [a], pars. Koenigsberg, 302 N. Y. 523;Department of Welfare 1, 2) confers jurisdiction on the courts of this State of City of N. Y. v. Siebel, 6 N Y 2d 536;Hess v. over defendant Darby for its tortious act within the Pawloski, 274 U. S. 352;Olberding v. Illinois Cent. State in Berlin, Rensselaer County, New York, and R. R. Co., 346 U. S. 338.)II. Constitutional doubts in addition thereto the record amply establishes that and other objectionable results can only be avoided defendant Darby did transact business within the by construing the statute in accordance with its State of New York. (Anderson v. Penncraft Tool plain meaning. III. If the statute is construed in ac- Co., 200 F. Supp. 145;Pennoyer v. Neff, 95 U. S. cordance with the legislative intent, only a nondom- 714;Watson v. Employers Liab. Corp., 348 U. S. iciliary who has acted within the State can be held 66;Atkins v. Jones & Laughlin Steel Corp., 258 under the proviso here involved. IV. However the Minn. 571;Huck v. Chicago, St. P., M. & O. Ry., 4 statute is construed, jurisdiction cannot constitu- Wis. 2d 132;Smyth v. Twin State Improvement tionally be asserted over a nondomicilary solely on Corp., 116 Vt. 569;McMahon v. Boeing Airplane the basis of consequences within New York. Co., 199 F. Supp. 908;Deveny v. Rheem Mfg. Co., 319 F. 2d 124;Bluff Cr. Oil Co. v. Green, 257 F. 2d OPINION OF THE COURT 83.)II. CPLR 302 (subd. [a], pars. 1, 2) is both con- Fuld, J. stitutional and retroactive. (People v. Green, 201 N. In the three cases under review -- one sounding in Y. 172;Laird v. Carton, 196 N. Y. 169.) contract and two in tort -- we are called upon to de- Abraham Burstein and Nathan E. Zelby for appel- cide whether the courts of this State acquired per- lant in the third above-entitled action. I. No tortious sonal jurisdiction, under our “long arm” statute ( act was committed by appellant within New York CPLR 302), over foreign corporations not “doing State in person or through an agent. II. Section 302 business” here in the traditional sense. Since there of the CPLR, as applied to the case at bar by the are several questions of law common to all three Appellate Division, is a denial of due process of cases, we discuss such questions generally, at the law and unconstitutional. III. Section 302 of the outset, before undertaking a more particularized CPLR cannot be applied retroactively to the case at consideration of the cases themselves. bar. IV. Res judicata applies to the case at bar. ( Sears, Roebuck & Co. v. 9 Ave. -- 31 St. Corp., 274 It is exceedingly clear that common-law principles N. Y. 388;People ex rel. Bankers Trust Co. v. of jurisdiction were early imported into the juris- Graves, 270 N. Y. 316;Dwight v. St. John, 25 N. Y. prudence of the several states and have since taken 203;Rosenberg Co. v. Curtis Brown Co., 260 U. S. on constitutional character by virtue of Supreme 516;Culross v. Gibbons, 130 N. Y. 447;Everett v. Court rulings that the improper exercise of jurisdic-

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tion by state courts infringes due process guaran- cise of personal jurisdiction over foreign corpora- tees. (See, e.g., Pennoyer v. Neff, 95 U. S. 714; tions have come to an end. Restating its view that Riverside Mills v. Menefee, 237 U. S. 189.)The tra- “progress in communications and transportation” ditional foundation of judicial jurisdiction is phys- has occasioned a relaxation of “the rigid rule in ical power (see McDonald v. Mabee, 243 U. S. 90, Pennoyer v. Neff” and an evolution to “the flexible 91), and in the case of foreign corporations, with standard of International Shoe”, the court went on which we are *451 here mainly concerned, unless to caution that “it is a mistake to assume that this they have voluntarily submitted to jurisdiction, trend heralds the eventual demise of all restrictions such power is assertable solely on the basis of the on the personal jurisdiction of state courts” (357 U. activities of the corporations within the forum state. S., at p. 251). “The unilateral activity of those who claim some relationship with a nonresident defend- The standard for assessing the irreducible minimum ant”, the court concluded, “cannot satisfy the re- forum activities constitutionally requisite to subject quirement of contact with the forum State. ... [I]t is foreign corporations and nonresident individuals to essential in each case that there *452 be some act personal jurisdiction was reformulated in the cases by which the defendant purposefully avails itself of of International Shoe Co. v. Washington (326 U. S. the privilege of conducting activities within the for- 310) and McGee v. International Life Ins. Co. (355 um State, thus invoking the benefits and protections U. S. 220). By those decisions, the Supreme Court of its laws” (357 U. S., at p. 253). opened a broad and previously unavailable -- although still largely undefined -- area for state exer- Taking advantage of the Supreme Court's broaden- cise of jurisdiction over such parties. In place of the ing of the bases for the exercise of personal juris- former rigid tests of “residence” and “doing busi- diction over nondomiciliaries, the Legislature of ness”, the Supreme Court, in International Shoe, this State, in 1962, following a study and a recom- substituted the flexible requirement that a nonresid- mendation by the New York Advisory Committee FN2 ent defendant, against whom a judgment in perso- on Practice and Procedure, enacted CPLR 302. nam is sought in the forum state, be shown merely Modeled upon a provision of the Illinois Civil Prac- to “have certain minimum contacts with it such that tice Act (Ill. Stat. Ann., ch. 110, § 17 [Smith-Hurd, the maintenance of the suit does not offend 'tradi- 1956]), section 302 discarded the concept of “doing tional notions of fair play and substantial justice' ” business” as the exclusive test of jurisdiction and (326 U. S., at p. 316). And, in McGee, the court up- provided, instead, insofar as here pertinent, that held the power of a state to subject a foreign cor- personal jurisdiction may be asserted over any non- poration to suit in its courts on the basis simply of domiciliary if, “in person or through an agent”, he an isolated insurance contract “which had substan- “transacts any business within the state” or tial connection with that State” (355 U. S., at p. “commits a tortious act within the state,” as long as FN1 223). the particular cause of action asserted is one FN3 “arising from” any of such acts. FN1 The foreign corporation in McGee maintained no office or agent in the forum FN2 See N. Y. Advisory Comm. Rep. (N. state and had apparently never solicited or Y. Legis. Doc., 1958, No. 13), pp. 37-41; done any business there apart from writing see, also, Senate Finance Comm. Rep. (N. the policy in question (355 U. S., at p. Y. Legis. Doc., 1961, No. 15), pp. 7-10, 222). 66-67.

But this does not mean, the Supreme Court made FN3 The entire text of subdivision (a), the clear in the later case of Hanson v. Denckla (357 U. portion of the statute with which we are S. 235), that all restrictions on a state court's exer- concerned, reads as follows:

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“(a) Acts which are the basis of jurisdic- other hand, where the effect of the statute “is to cre- tion. A court may exercise personal juris- ate a right of action” which did not previously exist, diction over any non-domiciliary, or his it is presumed that the statute was intended to have executor or administrator, as to a cause of only prospective application. (See Jacobus v. Col- action arising from any of the acts enumer- gate, 217 N. Y. 235, 240-242.) ated in this section, in the same manner as if he were a domiciliary of the state, if, in Section 302 is clearly of a procedural and remedial person or through an agent, he: nature, and that, indeed, was the characterization “1. transacts any business within the state; applied by the Supreme Court to the somewhat sim- or ilar provisions of the California statute before it in “2. commits a tortious act within the state, the McGee case (355 U. S. 220, supra.;,). In up- except as to a cause of action for defama- holding the retroactive application of that statute, tion of character arising from the act; or the Supreme Court observed that such legislation is “3. owns, uses or possesses any real prop- “remedial, in the purest sense of that term, and erty situated within the state.” neither enlarge[s] nor impair[s] ... substantive rights or obligations”, its effect being merely to provide The appellants in all three cases before us, noting the plaintiff with a new “forum to enforce whatever that the acts on which the causes of action asserted substantive rights” he might have against the de- against them are grounded occurred prior to the ef- fendant (355 U. S., at p. 224). And the Illinois Su- fective date of the statute, September 1, 1963, ad- preme Court reached a like conclusion with respect vance the threshold contention that section 302 may to the statute from which section 302 was derived, not be applied retroactively to subject them to the also sustaining its retroactive application to a suit personal jurisdiction of the New York courts. We instituted subsequent to its enactment but based on have already expressed a contrary view. In Simon- a cause of action which had previously accrued. son v. International Bank (14 N Y 2d 281, 290), we (See Nelson v. Miller, 11 Ill. 2d 378, 382-383.) declared that “ CPLR 302 has retroactive effect to the extent of embracing suits instituted after its The statute involved in Jacobus v. Colgate (217 N. *453 effective date but based on previously accrued Y. 235, supra.;), upon which the appellants before causes of action”, and no reason has been shown to us rely, was of a materially different character. That cause us to alter our opinion. statute was held, in effect, to have created a new right of action -- to have supplied “a remedy by Whether, and to what extent, a statute is to be ac- which a right for the first time [became] enforce- corded retroactive application is normally a matter able” (217 N. Y., at p. 242) -- by converting what of ascertaining the legislative intent, subject to ap- was previously *454 an exclusively “local” cause plicable constitutional limitations, and our de- of action (for injuries to real property lying without cisions provide certain basic guidelines to that end. the state) into one which was “transitory” (p. 241). It is thus presumed, absent any contrary indication, As already noted, section 302, far from creating that the Legislature intended “[c]hanges in the form new rights, merely facilitates the enforcement loc- FN4 of remedies” to be “applicable to proceedings there- ally of pre- existing rights. Moreover, the Le- after instituted for the redress of wrongs already gislature expressly declared that the CPLR “shall done.” (Matter of Berkovitz v. Arbib & Houlberg, apply to all actions hereafter commenced” (CPLR 230 N. Y. 261, 270; see, also, Simonson v. Interna- 10003; emphasis supplied), thereby giving affirmat- tional Bank, 14 N Y 2d 281, 289, supra.; Coane v. ive indication of its design to apply the statute to all American Distilling Co., 298 N. Y. 197, 204;Pre- suits instituted after its effective date, whether ston Co. v. Funkhouser, 261 N. Y. 140, 145.)On the based on previously or subsequently accrued causes

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

of action. (See 1 Weinstein-Korn-Miller, N. Y. Civ. not be interpreted to *455 apply to the particular Prac., par. 302.04, at p. 3-35.) facts involved and that, if it were to be so construed, the statute would violate due process limita- FN4 Since section 302 rests not on any tions. One of the cases, Longines-Wittnauer Watch theory of implied consent on the part of the Co. v. Barnes & Reinecke, is a suit for breach of defendant to submit to this State's jurisdic- contract and turns on paragraph 1 of subdivision (a) tion if he commits acts herein but, rather, of section 302 -- relating to a defendant's on New York's inherent power to exercise “transact[ion of] any business within the state”. The jurisdiction over a nonresident defendant other two -- Feathers v. McLucas and Singer v. who has the requisite minimal contacts Walker -- are founded on claims of negligence, as with it (see N. Y. Advisory Comm. Rep. well as of breach of warranty, and were decided be- [N. Y. Legis. Doc., 1958, No. 13], pp. low on the basis of paragraph 2 of subdivision (a) 39-44; see, also, 1 Weinstein-Korn- Miller, of section 302 -- involving a defendant's commis- N. Y. Civ. Prac., par. 302.04), the de- sion of “a tortious act within the state”. cisions -- to which the appellants point -- denying retroactive effect to statutes predicated on a theory of implied consent, Longines-Wittnauer v. Barnes & Reinecke such as the original nonresident motorist The plaintiff Longines-Wittnauer, a New York cor- statutes (see, e. g., Kurland v. Chernobil, poration, seeks damages of some $476,000 for 260 N. Y. 254, 257;Gruber v. Wilson, 276 breach of warranty in the manufacture and sale of N. Y. 135, 140), are not here in point. machines specially designed for it by the appellant The retroactive application of provisions resem- Barnes & Reinecke, a Delaware corporation having bling section 302 has, as noted, been upheld as con- its place of business in Chicago, Illinois. The stitutionally valid (see, e. g., McGee v. Internation- parties had carried on negotiations in 1962, the ap- al Life Ins. Co., 355 U. S. 220, 224, supra.; Nelson pellant in April and May of that year mailing its v. Miller, 11 Ill. 2d 378, 382-383, supra.; Bluff Cr. contract proposals for the machines to the plaintiff Oil Co., v. Green, 257 F. 2d 83, 85-86), and it is of in New York and shortly thereafter sending key of- significance that the Supreme Court, in a very re- ficers to this State to discuss the terms of the agree- cent decision (United States v. First Nat. City Bank, ment. After further meetings in Chicago, a written 379 U. S. 378), apparently perceived no constitu- contract in the form of a printed purchase order was tional impediment to our construction giving retro- executed in June 1962 by the appellant in Chicago, active effect to section 302, as indicated in Simon- the purchase order itself reciting, however, that it son, to the extent of applying it to a “suit ... insti- was “a contract made in the State of New York and tuted after the effective date of the statute” upon governed by the laws thereof”. Thereafter, officers the basis of “transactions occurring before the ef- and employees of the appellant, including its pres- fective date” (379 U. S., at p. 382; italics in origin- ident, treasurer and engineers, twice came to the al). While we left open in Simonson the possibility plaintiff's plant in Lynbrook on Long Island to dis- that retroactive application of the statute “in partic- cuss certain problems in connection with the per- ular situations” might give rise to constitutional formance of the contract. There were meetings in questions (14 N Y 2d, at p. 288), no such excep- Chicago as well, and in March 1963 a supplemental tional situation is presented in any of the cases be- agreement was executed by the plaintiff in New fore us. York after it had been signed by the appellant in Chicago.This agreement increased the price of the We turn, then, to those specific cases. It is the posi- machines from $109,000 to $118,000 and provided, tion of each of the appellants that section 302 may among other things, that their delivery did not con-

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stitute acceptance, it being specified that such ac- in part by either party in [this State]” (Minn. Stat. ceptance would occur only after the machines had Ann., § 303.13, subd. 1, par. [3]; Tex. Rev. Civ. met certain tests following installation in New Stat. Ann. [Vernon], art. 2031b, § 4; Vt. Stat. Ann., York. In April 1963, a month after the supplement- tit. 12, § 855). The Advisory Committee which al agreement was executed, the appellant shipped drafted the section took cognizance of such statutes the machines, f.o.b. Chicago, directed to the in its report (N. Y. Advisory Comm. Rep. [N. Y. plaintiff's plant in Lynbrook *456 and thereafter Legis. Doc., 1958, No. 13], pp. 39-40) and decided, participated in the installation and testing of the instead, to follow the broad, inclusive language of machines; in fact, two of its engineers spent sub- the Illinois provision, adopting as the criterion the stantially all of their working days at the plaintiff's “transact[ion of] any business within the state”. The plant from April through June 1963 getting the ma- design *457 of the legislation, as expressed by the chines ready for acceptance testing. committee, was to take advantage of the “new [jurisdictional] enclave” (Bomze v. Nardis The plaintiff, following its acceptance of the ma- Sportswear, 165 F. 2d 33, 36, per. L. Hand, J.) chines, discovered certain alleged defects, on the opened up by International Shoe where the nonres- strength of which this action was commenced in ident defendant has engaged in some purposeful October 1963, pursuant to CPLR 302 and 313, by activity in this State in connection with the matter service of the summons and complaint on the appel- in suit. (See N. Y. Advisory Comm. Rep. [N. Y. lant in Illinois. The latter challenged the court's jur- Legis. Doc., 1958, No. 13], pp. 39-40; see, also, 1 isdiction over its person by a motion to dismiss the Weinstein-Korn-Miller, N. Y. Civ. Prac., par. complaint (CPLR 3211, subd. [a], par. 8). The court 302.06.) Therefore, even though the last act mark- at Special Term denied the motion, the Appellate ing the formal execution of the contract may not Division, First Department, unanimously affirmed have occurred within New York, the statutory test the resulting order and the appeal is before us by may be satisfied by a showing of other purposeful leave of the Appellate Division on a certified ques- acts performed by the appellant in this State in rela- tion. tion to the contract, albeit preliminary or sub- FN5 sequent to its execution. The appellant does not dispute that a single transaction in New York, out of which the cause of action FN5 While by no means controlling, it is has arisen, may satisfy the requirement of the trans- worthy of some note that the decisions in- action of business provision (CPLR 302, subd. [a], terpreting the Illinois statute -- on which, par. 1). The nub of its argument seems to be that, if as we have noted, section 302 is modeled - the contract was not actually made in New York, its - have held that the place of contracting is activities in this State preliminary and subsequent not the exclusive criterion, and that the re- to the execution of the contract cannot be regarded quisite transaction of business by the non- as amounting to the transaction of “business” under resident defendant within the forum may the statute. We find no merit in this contention. consist of such activity on his part as enga- ging in preliminary negotiations for the In enacting section 302, the Legislature chose not contract or in subsequent acts in further- to fix precise guidelines, as other states have done, ance thereof, the issue turning, in essence, so as to draw within the jurisdictional reach of the on the totality of the defendant's activities New York courts only contracts “made within this within the forum. (See Kropp Forge Co. v. State” (Md. Ann. Code, art. 23, § 92, subd. [d]) or Jawitz, 37 Ill. App. 2d 475, 481;Berlemann contracts “made in this State or to be performed in v. Superior Distr. Co., 17 Ill. App. 2d 522; this State” (N. C. Gen. Stat., § 55-145, subd. [a], National Gas Appliance Corp. v. AB Elec- par. [1]) or contracts “to be performed in whole or

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trolux, 270 F. 2d 472,cert. den.361 U. S. the limits indicated by Hanson v. Denckla (357 U. 959;Magnaflux Corp. v. Foerster, 223 F. S. 235, supra.;) have been exceeded, for it is clear, Supp. 552; but cf. Grobark v. Addo Mach. to cull from the court's opinion in that case (p. 253), Co., 16 Ill. 2d 426; see, also, Currie, The that the appellant “purposefully avail[ed] itself of Growth of the Long Arm: Eight Years of the privilege of conducting activities within ... Extended Jurisdiction in Illinois, 1963 U. [this] State” and thereby “invok[ed] the benefits of Ill. L. Forum 533, 566- 579.) and protections of its laws.”

The activities in which the appellant engaged in this It follows that the courts below were fully justified State were assuredly adequate to meet the liberal in sustaining jurisdiction over the appellant Barnes statutory criterion. They comprised substantial pre- & Reinecke. liminary negotiations through high-level personnel during a period of some two months; the actual exe- Feathers v. McLucas cution of a supplementary contract; the shipment for use here, subject to acceptance following deliv- Mr. and Mrs. Feathers, the plaintiffs in this case, ery, of two specially designed machines, priced at brought suit to recover for serious personal injuries the not inconsiderable sum of $118,000; and the and property damage sustained in July 1962 as a rendition of services over a period of some three result of an explosion on a public highway near months by two of the appellant's top engineers in their home in Berlin, New York, of a tractor-drawn supervising the installation and testing of the com- FN6 steel tank, en route from Pennsylvania to Vermont, plex machines. *458 which contained highly flammable liquefied pro- pane gas. The tank had been manufactured in Kan- FN6 We do no more than note the added sas in 1957 by the appellant, The Darby Products of fact that the contract itself expressed the Steel Plate Corporation (sued as The Darby Corpor- agreement of the parties that it was to be ation), a Kansas company, under a contract with the regarded as having been made in New Butler Manufacturing Co., a Missouri corporation, York and as governed by New York law. presumably with knowledge that the latter would (Cf. National Rental v. Szukhent, 375 U. S. mount the tank on a wheelbase and then sell it to E. 311, 315- 316.) Brooke Matlack, a Pennsylvania corporation, which We need not determine whether any one of the operated as a licensed interstate carrier in foregoing activities would, in and of itself, suffice Pennsylvania and several other states, including to meet the statutory standard; in combination they New York. All three companies were named among more than meet that standard. And merely to list the the defendants sued, the complaint charging Darby activities in which the appellant engaged in this with negligence and breach of warranty in the man- State answers any constitutional objection which ufacture of the tank. *459 might be raised against requiring the appellant to Served with a summons and complaint in Kansas, make its defense in our courts. Not only did the pursuant to CPLR 302 and 313, the appellant contract upon which the suit is based have moved to dismiss the complaint on the ground that “substantial connection” with New York (McGee v. the court lacked jurisdiction of its person (CPLR International Ins. Co., 355 U. S. 220, 223, supra.;) 3211, subd. [a], par. 8), pointing out that all its but the appellant's “contacts” with this State were business was carried on from its plant and offices in such “that the maintenance of the suit does not of- Kansas City, Kansas, and that it never had any fend 'traditional notions of fair play and substantial agents, representatives, offices or other facilities in justice”'. (International Shoe Co. v. Washington, this State and never transacted or solicited any busi- 326 U. S. 310, 316, supra.;.) Nor may it be said that

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

ness here. The motion was granted at Special Term expanding the jurisdiction of our courts to the ex- but its order was reversed by the Appellate Divi- tent determined by the Appellate Division or sion, Third Department, which granted leave to ap- whether, indeed, the Legislature should have done peal to this court on a certified question. so in light of the pertinent policy considerations af- fecting the contending interests of local plaintiffs There being no showing -- indeed, not even a claim and foreign manufacturers but whether the Legis- -- that the appellant transacted any business in this lature did, in fact, do so. In short, in both this case State, within the purview of paragraph 1 of subdivi- and Singer v. Walker (infra., p. 464 et seq.), our sion (a) of CPLR 302, the case necessarily turns on task is simply to determine the import and scope of the construction to be accorded paragraph 2. More the jurisdictional provision which the Legislature particularly, we must ascertain whether the facts of actually enacted. As bearing on this, it cannot be the case satisfy the standard of paragraph 2 that the made too clear that we are concerned solely with defendant be shown to have “commit[ted] a tortious the problem of the court's jurisdiction over the per- act within the state”. son of a non-resident defendant and not with the question of his ultimate liability to a particular The tortious act charged against the appellant -- that plaintiff; that issue is to be considered only after it it improperly designed and assembled the tank -- is decided, on the basis of section 302, that the de- indisputably occurred in the out-of- state manufac- fendant is subject to the in personam jurisdiction of turing process in Kansas. Nevertheless, the Appel- our courts. late Division sustained jurisdiction on the strength of the resulting injury in this State, theorizing that The language of paragraph 2 -- conferring personal “the Legislature did not intend to separate foreign jurisdiction over a nondomiciliary “if, in person or wrongful acts from resulting forum consequences”, through an agent, he ... commits a tortious act with- and it went on to say -- directing its attention to the in the state” -- is too plain and precise to permit it requirements of Federal due process -- that section to be read, as has the Appellate Division, as if it 302 “merely codified the minimum contacts test” FN7 were synonymous with “commits a tortious act laid down by the Supreme Court decisions. without the state which causes injury within the state.” The mere occurrence of the injury in this FN7 It was the Appellate Division's con- State certainly cannot serve to transmute an out- clusion that the “minimum contacts” test of-state tortious act into one committed here within was satisfied by the showing that the tank, the sense of the statutory wording. (See Atkins v. with its load of flammable liquid, was “an Jones & Laughlin Steel Corp., 258 Minn. 571, instrumentality dangerous to life and prop- 579-580;Rufo v. Bastian-Blessing Co., 405 Pa. 12, erty, if defectively constructed”, and that 20;Hellriegel v. Sears Roebuck & Co., 157 F. Supp. the appellant had “knowledge” that the 718, 720-721.)Any possible doubt on this score is tank was designed for ultimate use by a dispelled by the fact that the draftsmen of section Pennsylvania carrier in interstate com- 302 pointedly announced that their purpose was to merce and “could be expected reasonably confer on the court “personal jurisdiction over a to foresee that its acts, if wrongful, might non-domiciliary whose act in the state gives rise to well have potential consequences in ad- a cause of action” or, stated somewhat differently, joining New York.” “to subject non-residents to personal jurisdiction However, the question presented is not -- as the Ap- when they commit acts within the state”. (See N. Y. pellate Division intimated it was by its reference to Advisory Comm. Rep. [N. Y. Legis. Doc., 1958, “minimum contacts” -- whether the Legislature No. 13], pp. 37, 39; emphasis supplied.) Having in could constitutionally have *460 enacted legislation mind the plain language of the statute and the ex-

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pressed design of those who drafted it, we deem un- Prac., par. 302.10; Currie, The Growth of reasonable the interpretation urged upon us by the the Long Arm: Eight Years of Extended plaintiffs. *461 Jurisdiction in Illinois, 1963 U. of Ill. L. Forum 533, 544-560. It is not inappropriate to note that for some years prior to the enactment of CPLR 302 much attention FN9 See, e.g., Conn. Gen. Stat. Ann., § had been given to the subject of state exercise of 33-411, subd. (c), par. (3); Mont. Rules personal jurisdiction over a nonresident manufac- Civ. Pro., rule 4, subd. (B), par. (1), cl. (b); turer charged with tortious activities in the manu- N. C. Gen. Stat., § 55-145, subd. (a), par. facture of a product in another state which caused (3); Wis. Stat. Ann., § 262.05 subd. (4). injury in the forum where the product was eventu- The Connecticut statute, for instance, au- FN8 ally marketed and sold and that legislation ex- thorizes the exercise of jurisdiction over a pressly conferring jurisdiction on that basis had foreign corporation, not otherwise transact- FN9 been enacted in a number of states. If, in fact, ing business in the forum, in any action the Legislature of this State had intended to confer arising out of the production, manufacture jurisdiction on the strength of injurious forum con- or distribution of goods in another state sequences alone, without regard to the locus of the with the reasonable expectation of their be- commission of the tortious act itself, it would pre- ing used or consumed in the forum state. sumably have used language appropriate to reflect such a design. Thus, it could have made explicit FN10 See statutes cited, supra.; n. 9. provision for such situations as some states have FN10 FN11 See N. Y. Law Rev. Comm. Rep. (N. done, or as proposed by the New York Law FN11 Y. Legis. Doc., 1959, No. 65 [C]), p. 3. Revision Commission or by the Commission- The Law Revision Commission in 1959 ers *462 on Uniform State Laws in their model act, FN12 proposed that section 229-a of the Civil or it might have followed the lead of other Practice Act be amended to provide for states which require only that the “tort” be shown jurisdiction over foreign corporations, not to have been committed within the state “in whole FN13 otherwise doing business here, where the or in part”. In sharp contrast, the Legislature action “arises out of ... (c) Commission of chose to adopt language which, in so many words, any act resulting in this state ... in injury to demands that the “tortious act” be one committed person or property, if the corporation ... by the defendant, “in person or through an agent,” should reasonably have expected that the within this State. act would have consequences in this state; FN8 See, e.g., N. Y. Law Rev. Comm. (d) Production [or] manufacture ... of Study, Service of Process on Foreign Cor- goods ... where the goods ... are used ... or porations (N. Y. Legis. Doc., 1959, No. resold in this state ... and the corporation ... 65[C]), p. 17 et. seq. Foster, Expanding should reasonably have expected that they Jurisdiction Over Nonresidents, Wis. Bar would be so used ... [or] resold”. Bull. Supp., Oct. 1959, pp. 15-20; Reese, FN12 See Uniform Interstate and Interna- Judicial Jurisdiction Over Non-Residents, tional Procedure Act, § 1.03, subd. (a), 13 Record of N. Y. C. Bar Assn., 139, Uniform Laws Ann., vol. 9B (Supp. 1964). 149-153; Reese & Galston, Doing An Act The model statute drafted by the Commis- or Causing Consequences as Bases of Judi- sioners on Uniform State Laws signific- cial Jurisdiction, 44 Iowa L. Rev. 249; see, antly differentiates between a case in also, 1 Weinstein-Korn-Miller, N. Y. Civ. which the tortious injury was committed

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“by an act or omission in this state” and in this case and in Singer v. Walker (infra., p. 464 et one where such injury was committed “by seq.). In Gray, an Illinois resident, injured in that an act or omission outside this state”; in state as a result of an explosion of a water heater the latter situation, the statute requires, as which had, in the court's words, found its way into an additional condition for the exercise of *463Illinois “in the course of commerce” (22 Ill. jurisdiction, that there be a showing that 2d, at p. 438), brought suit against an Ohio corpora- the nonresident defendant “regularly does tion which had (it was alleged) negligently manu- or solicits business, or engages in any oth- factured in Ohio a safety valve later incorporated er persistent course of conduct, or derives into the heater. The heater itself had been as- substantial revenue from goods used or sembled in Pennsylvania by a Pennsylvania corpor- consumed or services rendered, in this ation which had purchased the valve from the Ohio state”. (Uniform Interstate and Internation- manufacturer. In rejecting the defendant's conten- al Procedure Act, § 1.03, subd. [a], pars. tion that it had not committed “a tortious act” in [3], [4]; see, also, Va. Code Ann., § 8-81.2, Illinois, the court invoked the traditional choice of subd. [a], pars. [3], [4].) law rule that “the place of a wrong is where the last event takes place which is necessary to render the FN13 See. e.g., Minn. Stat. Ann., § 303.13, actor liable” (p. 435) and concluded that, since the subd. 1, par. (3); Tex. Rev. Civ. Stat. Ann. “last event”, that is, the injury, had occurred in (Vernon), art. 2031b, § 4; Vt. Stat. Ann., Illinois, “the tort was committed in Illinois” for tit. 12, § 855. It has been held that such a purposes of the jurisdictional statute (p. 436). statute -- based on the commission within FN14 the state of the “tort in whole or in part” -- We find this argument unconvincing. It cer- is distinguishable from a statute, such as tainly does not follow that, if the “place of wrong” paragraph 2 of subdivision (a) of section for purposes of conflict of laws is a particular state, 302, which requires the commission of the the “place of the commission of a tortious act” is “tortious act” within the state, and, unlike also that same state for purposes of interpreting a the latter legislation, is sufficiently broad statute conferring jurisdiction, on that basis, over to confer jurisdiction in a case involving an nonresidents. (See, e.g., Hanson v. Denckla, 357 U. out-of-state tortious act which results in in- S. 235, 253-254, supra.; O'Brien v. Comstock jurious consequences within the forum Foods, 123 Vt. 461, 465.)Not only are these separ- state. (See, e.g., Atkins v. Jones & Laugh- ate and distinct problems but the rules formulated lin Steel Corp., 258 Minn. 571, 579-580, to govern their resolution embody different con- supra.;.) cepts expressed in different language. Moreover, the place of the “tort” is not necessarily the same as Our attention is directed to the broad interpretation the place of the defendant's commission of the accorded in Gray v. American Radiator & Sanitary “tortious act”. In our view, then, the interpretation Corp. (22 Ill. 2d 432) to the similarly worded pro- accorded the statute by the Illinois court disregards vision of the Illinois statute -- relating to the com- its plain language and exceeds the bounds of sound mission of a tortious act within the state -- on which statutory construction. (See McMahon v. Boeing paragraph 2 of subdivision (a) of section 302 was Airplane Co., 199 F. Supp. 908, 909;Atkins v. Jones modeled. Although our analysis of New York's stat- & Laughlin Steel Corp., 258 Minn. 571, 579-580, ute and its legislative history demonstrates that reli- supra.; Rufo v. Bastian-Blessing Co., 405 Pa. 12, ance on the Gray case is misplaced, we deem it de- 20, supra.; see, also, Reese & Galston, Doing an sirable to examine its underlying rationale in view Act or Causing Consequences as Bases of Judicial of the emphasis given the decision by the appellants Jurisdiction, 44 Iowa L. Rev. 249, 266-267; Stim-

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son, Omnibus Statutes *464 Designed to Secure York in the course of its use by an interstate carrier Jurisdiction Over Out-of-State Defendants, 48 or trucker. (See, e.g., Hanson v. Denckla, 357 U. S. Amer. Bar Assn. J. 725, 727; Thornton, First Judi- 235, 253, supra.; Dooly v. Payne, 326 F. 2d 941; cial Interpretations of the New York Single Act O'Brien v. Comstock Foods, 123 Vt. 461, supra.;.) Statute, 30 Brooklyn L. Rev. 285, 291-292; Note, FN15 50 Georgetown L. J. 310.) In sum, then, it is our conclusion, based not only on the plain language of the statute but on its legislat- FN14 It is noteworthy that, prior to the de- ive history, that paragraph 2 of subdivision (a) of cision in Gray, the Federal courts in section 302 covers only a tortious act committed Illinois had given a contrary interpretation (by a nondomiciliary) in this State. Any plea for to the statute, holding, in accordance with further expansion of its scope, however desirable its plain language, that the provision was such expansion may seem, is a matter for the Legis- not meant to sanction jurisdiction over a lature rather than the courts. It follows, therefore, nonresident manufacturer whose wrongful that, since the tortious act charged against the ap- act outside the state caused an injury with- pellant Darby was committed, if at all, in Kansas in the state. (See Hellriegel v. Sears and since, concededly, that company transacted no Roebuck & Co., 157 F. Supp. 718, business whatsoever in New York, no basis exists 720-721, supra.; Trippe Mfg. Co. v. Spen- in the present case for subjecting it to the jurisdic- cer Gifts, 270 F. 2d 821, 823;Insull v. New tion of the courts of this State. York World-Tel. Corp., 273 F. 2d 166, 171.) Singer v. Walker FN15 The Illinois court, seeking to bolster The complaint alleges that in April of 1960 Michael its decision, further declared that “it [was] Singer, then 10 years old and a resident of this a reasonable inference that [the defend- State, was seriously injured when a geologist's ant's] commercial transactions ... result[ed] hammer which he was using in *465 Connecticut in substantial use and consumption in this broke and a chip penetrated his right eye. The ham- State” (22 Ill. 2d, at p. 442). If, as was thus mer, it is further recited, was manufactured by the assumed, there were substantial sales of appellant Estwing Manufacturing Co., an Illinois the defendant's product within the State of corporation not doing business in this State. Bear- Illinois, that factor might have served to ing a label, “Unbreakable Tools Estwing Mfg. Co.”, support a finding that jurisdiction existed the hammer was shipped by the appellant, f. o. b. on the basis of the “transaction of busi- Illinois, to the defendant Walker, a dealer in geolo- ness” provision (infra. pp. 466-467) but it gical supplies in New York City. Michael's aunt has no relevance on whether the defendant purchased the hammer from Walker and gave it to committed a tortious act within the state. the child a month or two before the accident which, Reading the New York statute, as we do, to require as stated, occurred in Connecticut when the ham- a showing that the nondomiciliary committed a tor- mer fragmented while the youngster, on a field trip tious act in this State, we need not pass upon the with his father, was using it to break and split rock. constitutional question raised by the appellant or Service of process on the appellant in an action consider whether the due process requirement of brought in this State prior to the enactment of sec- “minimum contacts” with the forum state would be tion 302 was set aside on the ground that it was not satisfied by evidence that the injury occurred here “doing business” in New York under the jurisdic- and that the appellant presumably knew that its tional standards then applied by our courts. (Cf. Si- product (the tank) might ultimately reach New

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

monson v. International Bank, 14 N Y 2d 281, manufacturing an assertedly defective hammer and supra.;.) The present action was brought, after the in attaching to it a false label, both of which un- effective date of section 302, by service of the sum- questionably took place in Illinois. Accordingly, as mons and complaint on Estwing in Illinois (CPLR the trial judge correctly concluded, jurisdiction can- 313). Its motion to dismiss the complaint on the not be sustained under paragraph 2. ground that the court had not acquired personal jurisdiction (CPLR 3211, subd. [a], par. 8) was gran- FN16 Quite obviously, cases such as ted at Special Term “[s]ince the tortious act com- Thomas v. Winchester (6 N. Y. 397),Smith plained of did not take place in this state or arise ... v. Peerless Glass Co. (259 N. Y. 292) and [from] any transaction of business by defendant in Greenberg v. Lorenz (9 N Y 2d 195) -- this state”. The Appellate Division, First Depart- cited in the concurring opinion of the Chief ment, taking a different view, reversed “on the law” Judge (pp. 471-472) -- which deal solely and denied the motion, holding that the cause of ac- with the question of “liability”, have noth- tion was one arising from the commission of a tor- ing to do with the problem of tious act in the State under paragraph 2 of subdivi- “jurisdiction”. As we have already made sion (a) of section 302. clear in our discussion of the Feathers case (supra.;, pp. 459-460), we are concerned Our detailed analysis of that provision in Feathers on these appeals only with the question of v. McLucas (supra.;, pp. 458-464) and of paragraph the court's jurisdiction over the defendant 1 in Longines-Wittnauer v. Barnes & Reinecke and not at all with the issue of its liability. (supra.;, pp. 455-458) permits us to be brief in treating this third case. And we note again that we However, the question remains whether jurisdiction deal with the case in the light of the statutory provi- may be upheld under paragraph 1 on the ground sion as it actually reads and not as it could, perhaps, that the appellant “transact[ed] ... business within have been written. the state” and that the pleaded cause of action is one “arising” therefrom. It is clear that paragraph 1 Manifestly, the tortious acts attributed to the appel- is not limited to actions in contract; it applies as lant in the manufacture and labeling of the hammer well to actions in tort when supported by a suffi- occurred at the place of manufacture in Illinois and, cient showing of facts. (See N. Y. Advisory Comm. as in Feathers, are wholly insufficient to satisfy the Rep. [N. Y. Legis. Doc., 1958, No. 13], p. 39; see, requirement of paragraph 2 that the *466 “tortious also, Notes of Commissioners on Uniform State FN16 act” be one committed “within” this State. The Laws, Uniform Laws Ann., vol. 9B [Supp. 1964], Appellate Division, nevertheless, sustained jurisdic- p. 78.) tion on the theory that Estwing's “circulation” in New York of a hammer mislabeled as unbreakable - The record, although conflicting in some respects, - thereby creating, as that court put it, a continuing does establish certain facts as to which there is no condition of hazard wherever the article was sold -- substantial dispute -- namely, that the appellant has itself constituted the commission of a tortious act shipped substantial quantities of its products into here. We cannot accept this reasoning. The mere this State as the result of solicitation here through a fact that a product defectively manufactured and local manufacturer's representative and through misleadingly labeled in one state is marketed and catalogues and advertisements and that the injury- sold in another cannot serve to change the place causing hammer, purchased from a New York deal- where the original tortious acts were committed or er, was one of such products. The Appellate Divi- to create a new tortious act. The tortious conduct sion, in view of its conclusion *467 predicated on charged to the appellant consists solely of its acts in paragraph 2, apparently found it unnecessary to consider the applicability of paragraph 1. But in its

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

opinion the court did call attention to facts which I concur in Judge Fuld's opinion in Longines- demonstrated that the appellant transacted business Wittnauer Watch Co. v. Barnes & Reinecke and in here and which, in its view, provided the requisite the result in the other two cases. In Feathers v. nexus with this State demanded by due process. McLucas, I agree that CPLR 302 is not broad enough to confer jurisdiction under the facts of that We hold that the appellant's activities in this State case, but I also consider it to be *468 probable that, are sufficient to satisfy the statutory criterion of in adopting that section, the New York State Legis- transaction of business as well as the constitutional lature expanded our jurisdiction over nonresidents requirement of “minimum contacts”. (See Interna- near to the limit permitted by the due process tional Shoe Co. v. Washington, 326 U. S. 310, clause. In Hanson v. Denckla (357 U. S. 235) the 319-320, supra.; McGee v. International Ins. Co., Supreme Court indicated that all United States con- 355 U. S. 220, 223, supra.;.) For the reasons we stitutional restrictions on the personal jurisdiction gave in rejecting a similar contention in the Long- of state courts have not been removed. Each state is ines-Wittnauer case (supra.;, pp. 456, 458), we do likely to go as far as the Constitution permits in as- not deem it determinative, as urged by the appel- suming jurisdiction over nonresidents, and it is ap- lant, that the formal execution of its sales contracts propriate that they should be restrained in doing so may have occurred in Illinois rather than New by some modern Federal rule of constitutional in- York. Nor is it a controlling consideration that the terpretation analogous to but in substitution for that actual injury happened to take place in Connecticut, of Pennoyer v. Neff (95 U. S. 714). That time- since the cause of action asserted is clearly one honored decision held the balance between the “arising from” the purposeful activities engaged in states for a long time. It has now been superseded by the appellant in this State in connection with the by International Shoe Co. v. Washington (326 U. S. sale of its products in the New York market. 310) and McGee v. International Life Ins. Co. (355 U. S. 220) but, as pointed out in Judge Fuld's opin- In sum, then, the Appellate Division was in error in ion, those cases still have left largely undefined the holding paragraph 2 applicable; nevertheless, on the constitutional area for state exercise of jurisdiction strength of paragraph 1, we affirm its order sustain- over nonresidents. It is desirable that this constitu- ing jurisdiction over the appellant. tional area become defined, as it probably will be 1. In Longines-Wittnauer v. Barnes & Reinecke, the by individual cases in course of time. I am fortified order of the Appellate Division should be affirmed, in my view that the court is correct in its interpreta- with costs, and the certified question answered in tion of CPLR 302 in Feathers v. McLucas by the the affirmative. circumstance that a broader interpretation would be likely to conflict with the Federal Constitution. 2. In Feathers v. McLucas, the order of the Appel- late Division should be reversed, the order of Spe- In Singer v. Walker, the liability of the defendant, if cial Term reinstated, with costs in this court and in any, is likely to depend upon the extent to which the Appellate Division, and the certified question the courts of our State adopt the principles of the answered in the negative. new legal doctrine known as products liability. Li- ability under that doctrine depends upon whether 3. In Singer v. Walker, the order of the Appellate the manufacturer of this geologist's hammer can be Division should be affirmed, with costs, and the subjected to damages for introducing this appliance certified question answered in the affirmative. with or without fault into the stream of commerce, Van Voorhis, J. with the reasonable anticipation that it would be (Concurring). resold in New York State (MacPherson v. Buick Motor Co., 217 N. Y. 382; see, also, Gillam,

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

Products Liability in a Nutshell, 37 Ore. L. Rev. of jurisdiction under CPLR 302 (subd. [a], par. 1). 119, 153; Prosser, The Assault Upon the Citadel The analogy is pertinent that in cases where juris- [Strict Liability to the Consumer], 69 Yale L. J. diction is obtained by attachment, the affidavits to 1099, 1106; Strict Products Liability and the procure which must show “that there is a cause of Bystander, 64 Col. L. Rev. 916, 928; James, action” (CPLR 6212, subd. [a]), the power “to grant Products Liability II, 34 Tex. L. Rev. 192, 194, n. an attachment does not depend upon predetermina- 10; Calabresi, Some Thoughts on Risk Distribution tion of the merits of the action or plaintiff's pro- and the Law of Torts, 70 Yale L. J. 499; Morris, spects of success therein” (10 Carmody-Wait, New Hazardous Enterprises, 61 Yale L. J. 1172; Com- York Practice, p. 116). Although evidentiary facts ments, 9 Vill. L. Rev. 174;49 Corn. L. Q. 354; must be shown, it has been said by this court that Reed, Products Liability and *469 the Privity Rule, “The jurisdiction to grant an attachment does not, Circa 1964, 7 So. Tex. L. J. 118, 119; Goldberg v. we think, involve a preliminary determination by Kollsman Instrument Corp., 12 N Y 2d 432;Randy the officer to whom application for the writ is Knitwear v. American Cyanamid Co., 11 N Y 2d 5, made, whether in law the case presented by the per Fuld, J.). Such proposed extensions of MacPh- complaint will entitle the plaintiff to the relief he erson v. Buick Motor Co. (217 N. Y. 382, supra.;) asks” (*470Van Camp v. Searle, 147 N. Y. 150, and of the food implied warranty cases (cf. Rinaldi 161). “It is enough that as to a major portion of v. Mohican Co., 255 N. Y. 70;Ryan v. Progressive their claim we cannot say as matter of law on this Grocery Stores, 255 N. Y. 388;Greenberg v. record that the plaintiffs must ultimately be de- Lorenz, 9 N Y 2d 195) pertain to one of the modern feated (see American Reserve Ins. Co. v. China Ins. battlefields of the law. Neither courts nor tex- Co., 297 N. Y. 322, 325).”(Plesch v. Banque Na- twriters are certain whether these theories of liabil- tionale de le Republic d'Haiti, 298 N. Y. 573, 575.) ity sound chiefly in contract or in tort. The extent of Since products or some related form of liability (if such liability, if it goes beyond negligence (MacPh- established) would mean that the infant plaintiff's erson v. Buick Motor Co., supra) or express war- injuries arose out of the particular business transac- ranty (see concurring opinion per Froessel, J., in tion engaged in by the nonresident manufacturer in Randy Knitwear v. American Cyanamid Co., 11 N the purposeful circulation of this hammer in the Y 2d 5, 16, supra.;) remains to be determined by the stream of commerce in New York State, enough has facts of particular cases yet to arise, under the fa- been shown prima facie to warrant upholding juris- miliar process of inclusion and exclusion. The diction to try this issue. present case (Singer v. Walker) may become one of Chief Judge Desmond such decisions, but the court cannot determine the (Concurring). question of liability -- and does not purport to do so at this stage of the litigation -- unless jurisdiction In Singer v. Walker, I concur for affirmance but I be obtained. I subscribe to the view that in order to emphatically disagree with the majority's holding ascertain whether the New York courts have juris- that these papers do not charge the commission by diction it is not necessary to determine the exist- defendant of a tortious act within this State. To my ence or theory of liability under these circum- eye the record plainly establishes not one but both stances in advance of trial. Unless jurisdiction is bases of jurisdiction described in CPLR 302, that is, upheld, the question of liability cannot be decided. I that defendant transacted business within this State think that, without prejudice to the determination of within the meaning of paragraph 1 of subdivision questions of liability at the trial, enough has been (a), and also that he committed a tortious act within shown to indicate the existence of a substantial con- this State under paragraph 2 of subdivision (a). troversy which, if resolved in plaintiff's favor on The damage being done by this decision is not to the facts and the law, would warrant the assumption

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

the plaintiff and his cause but to the second part of defendant manufacturer in Gray did not directly section 302 (subd. [a], par. 2: “commits a tortious send its product into Illinois at all. The Gray ra- act within the state”) which is being given a re- tionale is simply this: when a manufacturer pur- strictive meaning not required or justified, contrary posefully sends its product into the forum state or to the plain language of the statute itself and its when his conduct of his business is such that he evident purpose and to the relevant decisions in this contemplates the delivery of his product in a forum court and in courts of other states. state he is guilty of a tortious act in the forum state if the product is defective in such manner that the The statutory language (302, subd. [a], par. 2), manufacturer is liable in tort. Such an interpretation “commits a tortious act within the state”, is taken of the statute is entirely fair and reasonable, well verbatim from Illinois law (Ill. Rev. Stat., ch. 110, suited to today's ways of doing business and surely § 17). It has the same meaning as the phrases not outside the constitutional permissions explained “tortious conduct” in the Connecticut and North in McGee v. International Life Ins. Co. (355 U. S. Carolina statutes (Conn. Gen. Stat. Rev., § 33-411, 220) and Hanson v. Denckla (357 U. S. 235). When subd. [c] [1959]; N. C. Gen. Stat. § 55-145, subd. our Legislature adopted the language of the Illinois [a], par. [4] [1955]) and “part of a tort” in the Min- Legislature it presumably adopted with it the con- nesota, Texas, Vermont and West Virginia laws ( struction given the statutory language by the Minn. Stat. Ann., § 303.13, subd. 1, par. [3] [1964 Illinois courts in Gray (Shapiro v. United States, Supp.]; Tex. Civ. Stat., art. 2031b, § 4 [1959]; Vt. 335 U. S. 1, 16- 20;Hoffer Bros. v. Smith, 148 Va. Stat. Ann., tit. 12, § 855; W. Va. Code Ann. [1961], 220, 227). § 3083). All reflect the idea that various separate acts or omissions may together make out a tort. For For background and illumination of the phrase instance, the totality of an actionable tort such as “commits a tortious act within the state” let us look *471 is charged here (involving manufacturer's at New York decisions before section 302 was ad- products liability) consists of three elements: de- opted. The idea that sending into the market, by a fective manufacture, distribution to purchaser, and manufacturer, a dangerous product or one care- a resulting injury. Each of these is a “tortious act” lessly labeled is a tortious act and part of an action- or, in other words, a “part of a tort”. This complaint able tort goes way back in this State's decisions to charges both negligence and breach of warranty. *472Thomas v. Winchester (6 N. Y. 397) and has How it can be, factually or conceptually, that Es- gradually been broadened to cover articles which twing committed no “tortious act” in this State are not inherently dangerous but because of their when, directly and without intervening vendors or defects are dangerous when put to an intended use ( distributors, it sent the mislabeled and defective Smith v. Peerless Glass Co., 259 N. Y. 292;Gene- hammer into New York for sale is beyond my un- see County Patrons Fire Relief Assn. v. Sonneborn derstanding. True, the whole tort was not commit- Sons, 263 N. Y. 463;O'Connell v. Westinghouse X- ted here since the manufacture and the origin of the Ray Co., 288 N. Y. 486;Noone v. Perlberg, Inc., shipment were in Illinois and the resulting physical 294 N. Y. 680;Markel v. Spencer, 5 N Y 2d 958; injury was in Connecticut, but a tortious act in New and see the non-privity warranty cases such as York is nevertheless spelled out plainly in these pa- Greenberg v. Lorenz, 9 N Y 2d 195). This appeal, pers. Such is the holding in Gray v. American Radi- therefore, presents the simple and single question: ator & Sanitary Corp. (22 Ill. 2d 432 [1961]) con- Was that tortious act “committed” in New York struing the Illinois statute whose language was State? Sending the hammer here into our State was, copied directly into our section 302 (subd. [a], par. if the complaint's allegations be true, tortious. That 2). Singer's is a much stronger case than Gray for the act was committed here is a physical fact, and the application of such a long-arm statute since the the words of our statute refer to actualities, not

15 N.Y.2d 443 (Cite as: 15 N.Y.2d 443, 209 N.E.2d 68)

“some esoteric concept derived from subtle and the- Judges Dye, Burke, Scileppi and Bergan concur oretic analysis” (to borrow some phraseology from with Judge Fuld; Judge Van Voorhis concurs in res- Old Colony R. R. Co. v. Commissioner, 284 U. S. ult in a separate opinion; Chief Judge Desmond dis- 552, 561). sents and votes to affirm. In Singer v. Walker: Order affirmed, with costs. The cases from other states with statutes similar to Question certified answered in the affirmative. ours apply the meaning and application we are sug- gesting to the “tortious act” and “tort in whole or in Judges Dye, Burke, Scileppi and Bergan concur part” language (Gray v. American Radiator & San- with Judge Fuld; Judge Van Voorhis and Chief itary Corp., 22 Ill. 2d 432, supra.; Deveny v. Rheem Judge Desmond concur in separate opinions. *481 Mfg. Co., 319 F. 2d 124;Smyth v. Twin State Im- provement Corp., 116 Vt. 569;O'Brien v. Comstock Copr. (c) 2013, Secretary of State, State of New Foods, 123 Vt. 461;Atkins v. Jones & Laughlin York Steel Corp., 258 Minn. 571;Putnam v. Triangle N.Y. 1965. Pubs., 245 N. C. 432).Rufo v. Bastian-Blessing Co. LONGINES-WITTNAUER v. BARNES & REI- (405 Pa. 12) might seem to be more restrictive but NECKE on analysis the case turns out to be one like Feath- 15 N.Y.2d 443, 209 N.E.2d 68578261 N.Y.S.2d ers v. McLucas in which our court is today holding 860224 A.L.R.3d 508108, 209 N.E.2d 68578261 that the statute does not reach far enough to include N.Y.S.2d 860224 A.L.R.3d 508108, 209 N.E.2d it. I find nothing to the contrary in any of the de- 68578261 N.Y.S.2d 860224 A.L.R.3d 508108 cisions cited by appellant here, nor anything in any END OF DOCUMENT of our legislative material including the reports of the Advisory Committee, to suggest that it was not the New York Legislature's intent to apply section 302 (subd. [a], par. 2) to a situation like the one dis- closed here. The order should be affirmed, with costs, and the certified question answered in the affirmative.

For about the same reasons, I vote to affirm in Feathers v. McLucas.I see no necessity or warrant for restricting the statutory language “tortious act within the state” so narrowly as to defeat the appar- ent legislative purpose and deprive our citizens of the intended benefits of the statutory plan. *473

In Longines-Wittnauer: Order affirmed, with costs. Question certified answered in the affirmative.

Chief Judge Desmond and Judges Dye, Van Voorhis, Burke, Scileppi and Bergan concur. In Feathers v. McLucas: Order of Appellate Divi- sion reversed and that of Special Term reinstated, with costs in this court and in the Appellate Divi- sion. Question certified answered in the negative.