101 N.Y.S. 807 | N.Y. App. Term. | 1906
This action was brought to recover for goods sold and delivered. It appears from the complaint that the plaintiff is a foreign corporation. There is no allegation that the plaintiff is a foreign stock corporation, nor does it appear from the complaint that it was doing business within the State of Hew York. The plaintiff obtained judgment for ninety-seven and eighteen one-hundredths dollars. At the close of plaintiff’s case the defendants moved for a nonsuit on three grounds, the last of which was that plaintiff being a foreign corporation had failed to show compliance with section 15 of the General Corporation Law (L. 1890, chap. 563) and section 181 of the Tax Law (L. 1896, chap. 908) and was therefore not entitled to bring this action. This motion was denied. At the time the motion was made it nowhere appeared in the evidence that the plaintiff was a stock corporation. The complaint, therefore, does not fail to set forth a good cause of action in favor of a foreign corporation because of its omission to allege compliance with section 15. Therefore it was not error to deny the motion for a nonsuit on this ground. Code Civil Pro., § 1779; South Bay Co. v. Howey, 113 App. Div. 382. Hor was it error to deny the motion because of a failure to show compliance with section 181 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap.- 558). It has been held that this objection does not go to the substance of plaintiff’s claim, but refers solely to the plaintiff’s capacity to sue.
Gildeesleeve and Fitzgerald, JJ., concur.
Judgment affirmed, with costs.
