
    Margaret Watherston, Inc., Respondent, v. Irving Forman et al., Appellants.
    Supreme Court, Appellate Term, First Department,
    April 13, 1973.
    
      
      Karpathin, Ohrenstein <& Karpathin (Marvin M. Karpathin and John E. LeMoult of counsel), for appellants. Migdal, Low, Tenney & Glass (Lawrence W. Pollach of counsel), for respondent.
   Per Curiam.

Defendants, husband and wife, reside in Chicago, Illinois. Plaintiff, a New York corporation with its only office in New York City, is in the business of conserving and restoring valuable paintings. Possessed of a painting valued at between $40,000 and $50,000 which they wished to have restored and being apprised of plaintiff’s reputation, the defendants contacted and subsequently contracted with plaintiff for said restoration. Defendants shipped their painting to New York where the work was to be performed and, upon completion thereof, it was shipped back to them. Their only other contacts with New York were phone calls and letters initiating and relating to the work. The refusal by defendants to pay for such work, alleging unsatisfactory performance', gives rise to this action.

At issue is the jurisdictional question of whether the activities of the nonresident defendants constituted the transaction of any business in New York City (CCA, § 404, subd. [a], par. 1; CPLR 302, subd. [a] par. 1). It is well recognized that due process “requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 1 traditional notions of fair play and substantial justice. ’ ” (International Shoe Co. v. Washington, 326 U. S. 310, 316 [1945]). A key factor in determining whether there is a reasonable contact with the forum is the presence of some act by which the defendant voluntarily elects to invoke the protection of the laws of New York (see Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N Y 2d 443 [1965]). In a well-reasoned determination, the court below (Lane, J.) recognizing that jurisdiction cannot be premised merely on an order telephoned or mailed here from out of State, or merely on the rendition of services here, or merely on the shipment of goods here from out of State, declared that all three factors combined will support jurisdiction.

When a nonresident selects and contacts a New York resident to perform services on a chattel he owns, knowing the work is to be performed in New York and sends the chattel to New York where the work is thereafter done, he has demonstrated sufficient reasonable contacts with New York and has deliberately invoked the protection of the laws of New York so as to make him amenable to jurisdiction in a suit by the New York resident for payment of the work. Such determination does not offend traditional notions of fair play and substantial justice and is entirely in keeping with the manifest interest of the State to subject nonresidents to personal jurisdiction for the protection of its residents. The order should be affirmed, with $10 costs.

Quran, J. P.

(dissenting). When the United States Supreme Court opened the door on assumption of personal jurisdiction over nonresidents (International Shoe Co. v. Washington, 326 U. S. 310; McGee v. International Life Ins. Co., 355 U. S. 220), it remained for the individual States to determine how far each would go in taking advantage of the full jurisdictional potential permissible under the Federal Constitution. New York chose not'to exhaust this full potential (see Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N Y 2d 443; Lavie v. Marketscope Research Co., 71 Misc 2d 373).

Thus, New York’s “ long arm statute ” (CPLR 302, subd. [a], par. 1) requires that a nondomieiliary must be found to have transacted business in New York “in person or through an agent ” (emphasis supplied) before he comes within reach of our process. This has been held to exclude activities which fall into the category of dealings between nonresident and resident principals, or between a nonresident and a resident, independent contractor.

Plaintiff, in restoring and cleaning defendants’ artistic painting here, was not the purposefully active representative or transactional alter ego for defendants, who never set foot in this State, within the meaning of the word “ agent ” as used in paragraph 1 of subdivision (a) of section 404 of the New York City Civil Court Act (counterpart of CPLR 302, subd. [a], par. 1). Plaintiff was a principal or an independent contractor rendering services here for the out-of-State defendants within the holdings of Glassman v. Hyder (23 N Y 2d 354), Standard Wine & Liq. Co. v. Bombay Spirits Co. (20 N Y 2d 13), McKee Elec. Co. v. Rauland-Borg Corp. (20 N Y 2d 377), and Kramer v. Vogl (17 N Y 2d 27), cited and distinguished in Parke-Bernet Galleries v. Franklyn (26 N Y 2d 13, 19, n. 2).

The order should be reversed with $10 costs to appellants and the complaint dismissed.

Ltjpiano and Fran, JJ., concur in Per Curiam opinion; Quran, J. P., dissents in memorandum.

Order affirmed, etc.  