236 A.D. 189 | N.Y. App. Div. | 1932
Walter S. Schell, Inc., a Pennsylvania corporation, herein called the Schell Company, drew a bill of exchange, which was accepted without condition by the defendant. The bill is dated March 2, 1926, and is payable October 1, 1926. In this bill it is recited that “ the obligation of the acceptor hereof arises out of the purchase of goods from the drawer. The drawee may accept this bill payable at any bank, banker or trust company in the United States which he may designate.” The acceptor made it payable at the State Bank, Canastota, N. Y. The Schell Company duly indorsed the bill and it was discounted by the plaintiff, which thereby became the holder in due course. (Neg. Inst. Law, § 91.) Payment was demanded, was refused and plaintiff brought this action. The summons is dated January 5, 1927, and was served January 12, 1927.
At the trial the court submitted to the jury one question, namely,
Since the bill of exchange in this case was payable October 1, 1926 and the action begun January 5, 1927, and since the act of 1927 did not take effect until March thirtieth, section 110 of the Stock Corporation. Law applies to this case. The trial court held, with an opinion in which the facts and many authorities are carefully set forth, that, whether or not the Schell Company was doing business in this State within the meaning of the statute in question, that fact is not available as a defense in this action; also that section 96 of the Negotiable Instruments Law prevailed. Section 96 reads as follows: “ A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties ainong themselves, and may enforce payment of the instrument ¡for the full amount thereof against all parties liable thereon.” It is not disputed that plaintiff in good
We do not think the word “ assignee ” was, or the words “ any person claiming under * * * such foreign corporation ” were, intended to cover a holder in due course. To so hold would much embarrass the business operations not only of people who needed to discount their commercial paper to meet their going needs, but of banks in protecting themselves against losses due to laws of the several States similar to this section of the Stock Corporation Law. It was not intended that a bank, a holder in due course, should be put to the hazard of interpreting the laws of a State. In the several States which have statutes similar to ours there are conflicts in decisions and refinements in reasoning which would confuse and embarrass one who sought information therefrom. (National Bank of Commerce v. Pick, 13 N. D. 74; Williams v. Cheney, 3 Gray [Mass.], 215; Katz v. Herrick, 12 Ida. 1; First National Bank of Massillon v. Coughran, 52 S. W. [Tenn. Ch.] 1112.) A bank in
No decision of the courts of this State, thought to be a direct authority, is cited and we have found none,. although Halsey v. Jewett Dramatic Co. (190 N. Y. 231) is so similar that it indicates what would be the view of the court were this identical case before it. In that case section 181 of the Tax Law°was considered; it prohibited a foreign corporation from maintaining an action in this State without first paying the license fee imposed. The plaintiff in that case was the assignee of a New Jersey corporation authorized to do business in this State and brought the action to recover a balance upon a contract made with the defendant. The court concluded: “ We think that the assignee has no greater rights than the corporation itself and that the defense available against the corporation under the statute would also be good as against the assignee except as to negotiable paper taken in good faith from the corporation before maturity.” (See Manufacturers’ Commercial Co. v. Blitz, 131 App. Div. 17, 20; Lauter v. Jarvis-Conklin Mortgage Trust Co., 85 Fed. 894, 895.)
We approve the order appealed from, except that we find no ground on which to grant a new trial.
The order setting aside the verdict should be affirmed and judgment directed for plaintiff for the sum of seventy-two dollars, with interest from the 2d day of March, 1926, and costs.
All concur; McNamee, J., not voting.
Order so far as it sets aside the verdict affirmed, with costs; and the appellant having stipulated, in case the order setting aside the verdict is affirmed, that final determination might be made by this court, without a new trial, judgment is directed for plaintiff for the sum of seventy-two dollars, with interest from March 2, 1926, with costs.