131 N.Y.S. 142 | N.Y. App. Div. | 1911
This appeal is from a judgment of the Municipal Court dismissing the plaintiff’s complaint before the cause was opened or any evidence given upon the ground that it contained no allegation that the plaintiff had. complied with the provisions of section 15 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28) by procuring the certificate authorizing it to do business in this State, and that because of such omissidn the complaint did not state facts sufficient to constitute a cause of action.
The plaintiff’s cause of action is upon a promissory note in the usual form, dated at Brooklyn in this State. The-complaint alleges that the plaintiff is a foreign corporation duly organized and existing under the laws of the State of New Jersey; that the defendant is a corporation organized and existing under the laws of the State of New York; that on the 21st day of December, 1910, the defendant executed the note which is set forth in full; that at maturity it was presented at the Brooklyn -Bank, where it was made payable, for payment; that plaintiff is still its owner; that no part thereof has been paid; and that $296.35 is due and unpaid thereon. There is no allegation of the time and place of its delivery, what it was given for, where the transaction out of which it arose took place, or that the' ■plaintiff is doing business in this State or has any office therein. For all that appears on the face of the complaint a recovery was authorized without proof that plaintiff had'complied with, the statutory provision entitling it to transact business in this State. (Commercial Coal & Ice Co. v. Polhemus, Nos. 1 & 2,
The "judgment of the Municipal Court should be reversed and a new trial ordered, with costs to abide the event.
Burr, Thomas, Carr and Woodward, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.