132 N.Y.S. 600 | N.Y. App. Div. | 1911
The Acorn Brass Manufacturing Company is a foreign corporation organized under the laws of the State of Illinois.
About October 30, 1908, it entered into a contract with defendant to sell and deliver to him a soda water fountain.
At the time of the sale the statute provided: “No foreign stock corporation doing business in this State shall maintain any action in this State upon any contract made by it in this State unless prior to the making of such contract it shall have procured such certificate. ” (Gen. Corp. Law [Gen. Laws, chap. 35; Laws of 1892, chap. 687], § 15, as amd. by Laws of 1901, chaps. 96, 538, and Laws of 1904, chap. 490.)
Before the obtaining of such certificate becomes a material fact in connection with such an action, two things must concur, the corporation must be a foreign stock corporation, other than a moneyed corporation, doing business in this State, and the contract which is the basis of the action must have been made within the State. If the existence of these conditions precedent appears upon the face of the complaint, then such complaint is demurrable unless it contains a further allegation that the provisions of the statute above referred to have been complied with. (Welsbach Co. v. Norwich Gas & El. Co., 96 App. Div. 52; affd., 180 N. Y. 533; Wood & Selick v. Ball, 190 id. 217.) If this does not appear this necessity does not exist. In such case, until the contrary is shown, it must be presumed that the contract was not made within this State and that the corporation is not doing business here.. Otherwise the requirements of the statute would be extended to every foreign stock corporation seeking to enforce a cause of action in our courts. (Southworth v. Morgan, 143 App. Div. 648.)
The learned justice of the Municipal Court, dismissed plaintiff’s complaint upon the ground that the contract sued upon was made within this State. Upon the evidence adduced this is-a debatable question, but if we assume, for the sake of the argument, that such is the fact, plaintiff should not have been dismissed, for it affirmatively appears that it was not doing business within this State. So' far as the evidence discloses, this is the only transaction in the nature of a sale in which plaintiff had engaged within this State.
The preliminary negotiations for the purchase and sale of the soda fountain were had between defendant and one Gfleichenhaus. These negotiations were had at an office at No. 403 Broome street; in the borough of Manhattan. Gleichenhaus’
On the day in question, at this office, defendant signed a paper, partly written and partly printed, entitled “Order Blank,” which was addressed to plaintiff at Chicago, Ill, and requested it to ship to him via Michigan Central Railroad, at an address given in Astoria, L. I., a soda fountain, describing it. The paper stated that'the price was to be $428.50, and that inclosed with the paper was a,, check for $85.20, part of the purchase price. It contained provisions for the payment of the balance in monthly installments, commencing January 15, 1909. This paper was not signed by the plaintiff, or by ¡my one in its behalf. When this paper was signed, defendant delivered same with a check to G-leichenliaus, who forwarded it to plaintiff at Chicago, and never saw it again until the date of the trial. Some time later the fountain was shipped to .defendant, and defendant signed notes for the payments to become due, secured by a. chattel mortgage on it. These notes and mortgage were signed at the saíne place and sent to plaintiff at Chicago .by Grleichenhaus, who testified that he had never seen them subsequently. He testified that he received ‘“his profit ” on the sale of the fountain, and it appeared that there was an agreement in writing between the plaintiff and the witness relative to his compensation for selling their goods, but this agréement was not produced or offered in evidence.
The judgment of the Municipal Court should be reversed and a néw trial ordered, costs to abide the event.
Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.