Opinion
Argued October 20, 1965
Decided December 1, 1965
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CHARLES A. LORETO, J.
John M. Aherne and James J. Taylor for appellant.
Emile Z. Berman, A. Harold Frost, Leonard Sheft and Paul M. Brown for Equitable Life Assurance Society of the United States, third-party plaintiff-respondent.
No appearance for plaintiff-respondent.
MEMORANDUM: The decision on the appeal should be withheld and the case remitted to the court at Special Term for further development of the record. On the argument of the appeal, third-party plaintiff-respondent Equitable offered for consideration by this court in the first instance transcripts of examinations before trial of third-party defendant Michigan Tool. On their face these transcripts seem to suggest that third-party defendant had done some business in New York. No opportunity to amplify by other proof or explain the total effect of its activities in New York has been afforded third-party defendant, and no first instance evaluation of the tendered proof has been made by a court possessed of fact-finding powers. Therefore, this proffered proof may not be given first instance evaluation here ( Matter of Hayes, 263 N.Y. 219, 221; Employers' Liab. Assur. Corp. v. Daley, 297 N.Y. 745).
Upon remission the court at Special Term shall determine as a fact upon the basis of all the proof that may be offered by the parties whether the cause of action for tort described in the complaint arose itself from the transaction of any business by third-party defendant within the State under CPLR 302 (subd. [a], par. 1); and if it did not so arise, whether the activities of third-party defendant meet the criteria prescribed by Tauza v. Susquehanna Coal Co. ( 220 N.Y. 259) for "doing business" within the State. (Cf. CPLR 301, 313.)
Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN concur.
Decision withheld and matter remitted to Special Term for further proceedings in accordance with the MEMORANDUM herein.