East Coast Oil Co. v. Toltec Mexican Oil Co.

The first three causes of action are based upon the contract, the guaranty of the performance of. which was the subject of the action of this plaintiff against Hollins and others decided herewith. (East Coast Oil Co. v. Hollins, 183 App. Div. 67.) For the reasons given in the opinion in that case the order so far as it sustains the demurrer to the first three causes of action should be affirmed.

The fourth cause of action alleges the sale by one foreign corporation to another of certain petroleum oil at an agreed price, and failure to pay therefor. It is not alleged that the contract of sale was made in this State or to be performed in this State or that the defendant was doing business in this State. The court did not have jurisdiction of the subject of the action. (Code Civ. Proc. § 1780.)

*77The order should be affirmed, with ten dollars costs and disbursements, with leave to plaintiff to serve an amended complaint on payment of said costs and ten dollars costs at Special Term.

Clarke, • P. J., and Lattghlin, J., concurred; Smith and Shearn, JJ., dissented and voted for a modification of the order by reversing as to the first three causes of action and affirming as to the fourth cause of action.

Order affirmed, with ten dollars costs and disbursements.