141 N.Y.S. 549 | City of New York Municipal Court | 1912
Plaintiff sues to recover $1,628.66, balance due for goods sold and delivered between July 15 and November 9, 1911. Defendant, a foreign corporation having an office in the city of New York, pleads a set-off as a partial defense and two counterclaims.
It has been held, however, that this section does not prevent a foreign corporation, which had been doing business in this state without such certificate and which was sued on a contract made in this state, from setting up a counterclaim and recovering thereon. Alsing v. New England Quartz Co., 66 App. Div. 473, 73 N. Y. Supp. 347 (1st Dept., 1901) affirmed without opinion in 174 N. Y. 536, 66 N. E. 1110, and cited with approval in Mahar v. Harrington Park Villa Sites, 204 N. Y. 235, 97 N. E. 587, 38 L. R. A. (N. S.) 210. This was an action against a foreign corporation which had not obtained a certificate from •the Secretary of State upon a promissory note given in payment of the purchase price of a pulverizing machine. Defendant interposed a counterclaim, alleging damages for breach of warranty. Plaintiff served a reply, alleging that defendant had not obtained the required certificate and on the trial sought to prove this latter fact. Held, that the evidence that defendant had not obtained such certificate was properly excluded for the reason that section 15 of chapter 687 of the Laws of 1892 did not prevent such -foreign corporation from interposing a counterclaim arising out of the transaction upon which the plaintiff sued, and that it had not been pleaded, nor did plaintiff attempt to prove that the license fee provided for by section 181 of chapter 908 of the Laws of 1896 had not been paid.
I hold that this case is authority against the first defense to the first counterclaim, and the demurrer thereto must be sustained, upon the ground that the first counterclaim grows out of the transaction upon which the plaintiff sues. The second alleged counterclaim does not arise out of the same transaction set forth in the complaint as the foundation of plaintiff’s claim, but out of an entirely separate and distinct sale. The Alsing Case goes no further than to say that:
“The defendant, having been brought into court and thus made to defend, should be allowed, unless there is a distinct provision to the contrary, * * * not only to defend, but also to litigate any question arising out of the transaction that has been made the basis of the plaintiff’s complaint.”
“The only defect claimed to exist in the complaint in that case (Welsbach Co. v. N. G. & E. Co., 180 N. Y. 533 [72 N. E. 1152]) was the omission to allege compliance with section 15 of the General Corporation Law. The same defect exists in the complaint now before us. There is no allegation, either general or specific, that the condition precedent in the statute has been performed. Code Civ. Proc. § 533. Such an allegation is essential in order to set forth a cause of action, and the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by the failure to raise it by demurrer or answer. Id. § 499. * * * We think that compliance with section 15 of the General Corporation Law should be alleged and proved by a foreign corporation such as the plaintiff, in order to establish a cause of action in the courts of this state. The cases holding otherwise should be regarded as overruled and the conflict of authority ended.”
■ “Sec. 181. License Tax on Foreign Corporations.—Every foreign corporation, except banking corporations, fire, marine, casualty and life insurance companies, co-operative fraternal insurance companies, and building and loan associations, authorized to do business under the General Corporation Law, shall pay to the State Treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state, during the first year of carrying on its business in this state. * * * No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation after thirteen-months from the time of beginning such business within the state, without obtaining’a receipt from the Comptroller for the payment of the license fee upon the capital stock employed by it within this state during the first year of carrying on its business in this state” (amended by Laws 1910, c. 340, in effect May 21, 1910).
It was indicated in Alsing Co. v. New England Quartz Co., supra, where it was held, as above stated, that a foreign corporation made a
The demurrer to the second separate defense to the first counterclaim and to the first and second separate defenses to the second counterclaim overruled, and demurrer to the first separate defense to the first counterclaim sustained; $20 costs to abide the event.