128 Misc. 460 | N.Y. App. Term. | 1926
The attachment was granted on a verified complaint and accompanying affidavit. The cause of action for rent due and unpaid is not assailed. Plaintiff, however, without setting forth his own place of residence showed that defendant was a corporation of New Jersey. Defendant appeared specially for the purpose of moving to vacate the attachment and dismissing the complaint on the ground that the court had no jurisdiction of the action. A further objection will be considered later.
Defendant’s motion was based on the affidavit of its president which pointed out that the court had no jurisdiction because the plaintiff, who had not stated his residence in the complaint, was a resident of New Jersey; that the defendant was a corporation of the same State, and that plaintiff had failed to allege or prove that the defendant was doing business within the State of New York which fact was necessary under section 47 of the General Corporation Law (as added by Laws of 1920, chap. 916; formerly section 1780 of the Code of Civil Procedure) to confer jurisdiction of the subject-matter upon this court. It is unnecessary to analyze at length the many arguments pro and con presented in the elaborate and careful briefs of the counsel because we are of opinion that it appears from the moving affidavit by fair inference that the defendant was doing business in New York. Plaintiff annexed to his affidavit a certificate of the Secretary of State of this State to the effect that the defendant received authority to do business in this State on November 3, 1925. We think the judge who granted the attachment might properly infer as a matter of ordinary common sense that a foreign corporation which obtained a certificate entitling it to do business in this State in November, 1925, and had paid the appropriate fees and taxes involved in that act was doing business within the State at the time the attachment was granted, namely, June, 1926. (See, also, Foster Co. v. Koppel Industrial C. & Equipment Co., 127 Misc. 51.) Whatever doubt might be entertained in that respect was solved by defendant’s own affidavit on which the motion to vacate was made which set forth that since October, 1925, defendant
The defendant’s second objection is that plaintiff set forth in his affidavit that the sum claimed was due to him over and above all counterclaims known to him but that as a matter of fact in an action pending in New Jersey between plaintiff and defendant, defendant had interposed a counterclaim for $5,000; that consequently plaintiff’s statement was false, and that the attachment should be vacated on that ground. The learned judge below has not considered this point and has based his decision solely on the ground that there was no adequate allegation that the defendant was doing business in this State. We cannot find that the significance of the statement that the sum claimed is due over and above all counterclaims known to him has been the subject of any adjudication in the appellate courts in this department. It has, we think, been generally interpreted as meaning over and above all counterclaims which the plaintiff is willing to concede as just. It appears to us that the purpose of the allegation is in respect of attachments to change the rule of ordinary pleading that the plaintiff should set forth whatever cause of action he may have, leaving it to defendant at his option to interpose a counterclaim, if any, and thus to limit an attachment to the net amount sin which plaintiff may deem himself entitled. The provision was so construed by Judge Lehman in Kinsley S. S. Lines, Inc., v. Atwater & Co. (at Special Term, Part 1, of this court in 1923; County Clerk’s Index, 2850). Moreover, in the present case we are of opinion that were it held necessary for plaintiff to refer in his affidavit to the fact that defendant asserted a counterclaim, defendant’s own statement thereof might well justify plaintiff in not considering it a valid basis for a possible recovery.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
All concur; present, Bijur, O’Malley and Levy, JJ.