153 N.Y.S. 35 | N.Y. App. Div. | 1915
The plaintiff is a Delaware corporation and for something like two years has been engaged in selling sandblast machines, having a place of business at 50 Church street, New York city. Up to April 25, 1914, the defendant Hoevel was president of the plaintiff, but about that time he resigned and severed his connection with the company by selling all of his stock. Shortly thereafter he organized the defendant corporation to engage in a business similar to the plaintiff’s and having its principal place of business at 50 Church street, New York city. At the time of the commencement of this action the plaintiff had not procured a certificate from the State of New York, as provided in section 15 of the G-eneral Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28), authorizing it to do
I am of the opinion the motion should have been granted. As I read the sections of .the statute referred to, there is nothing in either which prevents an action of this kind being maintained. Section 15 is to the effect that a foreign stock corporation, other than a moneyed corporation, shall not do business in the State of New York until it has first procured a certificate from the Secretary of State authorizing it to do so; and that “no foreign stock corporation doing business in this State shall maintain any action in this State upon any contract made by it in this State, unless prior to the making of such contract it shall have procured such certificate.”
This is not an action upon contract, nor is it to obtain relief by reason of any business transacted by it in the State of New York.
Section 181 has no application, because that relates to the tax to be paid after the certificate has been issued. In addition to this, the neglect to pay the tax assessed is a matter of defense which must be alleged in an answer. (Halsey v. Jewett Dramatic Co., 190 N. Y. 231.)
There are numerous authorities to the effect that a corporation may restrain, by injunction, the use of its corporate name by another on the ground that such- use constitutes unfair competition. (Higgins Co. v. Higgins Soap Co., 144 N. Y.
I think, upon the proofs presented, the motion should have been granted.
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on notice.