108 A.D. 330 | N.Y. App. Div. | 1905
The following is the opinion of Greenbaum, J., delivered at Special Term:
Defendant demurs to the complaint for insufficiency of facts constituting a cause of action and for lack of legal capacity of the plaintiff to maintain this action. '<,
I have had occasion recently to hold that a failure on the part of a foreign corporation doing business in this State to allege due authority thus to transact business does not affect the substance of
The second ground of demurrer, however, presents a more serious', situation for the plaintiff.
The complaint alleges that the. plaintiff’s assignor was a corpora- . tion organized under the laws of theState of New Jersey and doing business in the State of New York; that “ prior to the commencement of this action the said corporation duly paid the license tax imposed by section 181 of the Tax Law, upon foreign corporations doing business in the State of New York, and duly complied with all the provisions of section 15 of the Corporation Law, and obtained.a certificate in the State of New York, authorizing it to do business within this State!,” and “ that the license tax as aforesaid was duly paid to the Comptroller of the State of New York on or about October T7, 1902, but through inadvertence the application' to the Secretary of State was not made and the certificate not granted until September 23, 1904.” ' ■
The complaint sufficiently alleges the breach of an agreement made between the plaintiff’s assignor • and the defendant at the city of New York on or about September 30,1903, for the purchase and sale of certain merchandise to be manufactured for defendant.
It is thus made affirmatively, to appear that at the timé of the making of said contract plaintiff’s assignor had not procured any certificate of authority to do business in this State although it had long prior thereto (October, 1902) paid into the State treasury-a license'tax.
Section' 15. of the General Corporation Law
Section l6a
The curious anomaly is thus presented in this case of the plaintiff’s assignor having paid into the State treasury in 1902 the franchise tax required by law of foreign corporations duly authorized to do business in this State, although no certificate of such authority had then been issued to it.
So far as the inhibition against maintaining an action may rest upon a failure to comply with the Tax Law, the demurrer should not be sustained, because it is clear that section 181 of the Tax Law is a revenue regulation for the benefit of the State which the latter has the right to waive. (C. R. Parmele Co. v. Haas, 171 N. Y. 579, 583; Dunbarton Flax Spinning Co. v. G. & J. R. Co., 87 App. Div. 21, 23.)
But the failure to procure a certificate as required by section 15 of the General Corporation Law, in view of the explicit language % of that provision that no action shall be maintained by a foreign stock corporation “upon any contract made by it in this State unless prior to the making of such contract it shall have procured such certificate,” seems to me to be fatal' to the plaintiff’s rights ‘to maintain this action.
In C. R. Parmele Co. v. Haas and the Dunbarton Flax Spinning Co. Case (supra) both section 15 of the General Corporation Law and section 181 of the Tax Law are apparently referred to as mere revenue regulations, but a study of those cases reveals that a . consideration of section 15 of the General Corporation Law was not
An examination of said section 15 shows that a foreign stock corporation whose business “ to be carried on in this State is such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business” is entitled.to a certificate of authority to do business in this State upon compliance with the requirements of section 16 of the General C or por ation. Law
Ho fee or tax is requisite for the procurement of a certificate,
The phrase “ revenue law,” so far as it wrould be here applicable means’ “ a law providing in terms for revenue.” ( United States v. Hill, 123 U. S. 681, 686.)
This definition would fit the provisions of section 181 of the Tax Law, but not sections 15 and 16 of the General Corporation Law.
It would, therefore, follow filial the acceptance of a license tax by one official, to wit, the State Treasurer, in 1902, although seem-, ingly implying an authority in the plaintiff’s assignor to do business in this State, Would not constitute a waiver by the State of the general provisions embodied in sections 15 and 16 of the General Corporation Law, which make the issuance by a different official, to wit, the Secretary of State, of a certificate of authority before the
The prohibition as to bringing an action found in section 15 of the General Corporation Law is independent of and distinct from that expressed in section 181 of the Tax Law and is so rigidly and inflexibly declared that I cannot find any rule or reason which will enable me to relieve the plaintiff from the unfortunate consequences of the inadvertence alleged in the complaint.
I am constrained to sustain the demurrer that plaintiff has no legal capacity to sue, with leave to plaintiff to plead anew if it be so advised upon the payment of costs.
Laws of 1892, chap. 687, § 15, as amd. by Laws of 1901, chap. 538, and Laws of' 1904, chap. 490.— [REP.
See Laws of 1895, chap. 240.—[REP.
Laws of 1896, chap. 908, § 181, as amd. by Laws of 1901, chap. 558.— [Rep.
As amd. by Laws of 1895, chap. 672.— [Rep.
See Executive Law (Laws Of 1892, chap. 683), § 26, subds. 7, 13.—[REP.