131 N.Y.S. 322 | N.Y. App. Div. | 1911
■ This action was first tried in May, 1909, and resulted in a judgment for the defendant, the court stating: “This case is decided solely upon the theory and ground that plaintiff was doing business within this State without having complied with section 15 of the General Corporation Law.” Upon appeal the Appellate Term unanimously reversed this judgment and ordered a new trial. (65 Misc. Rep. 543.) Upon said new trial plaintiff recovered judgment for $574.87, which judgment, upon appeal to the Appellate Term, was reversed and the complaint dismissed. From said determination, upon leave granted by the Appellate Term, this appeal is taken.
We are satisfied that the case presented is that of orders obtained by traveling salesmen upon exhibition of samples, and that the transactions enumerated did not constitute doing business within the State of New York within the meaning of sections 15 and 16 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28).
In Penn Collieries Co. v. McKeever (183 N. Y. 98) Gray, J:, said: “To be ‘doing business in this State.’ implies corporate continuity of conduct in that respect; such as might be evidenced by the investment of capital here, with the maintenance of an office for the transaction of its business, and those incidental circumstances which attest the corporate intent to avail itself of the privilege to carry on a business; ” and cited in support various cases arising under the tax laws which had interpreted the phrase “doing business in this State” as used therein. (See, also, Tallapoosa Lumber Co. v. Holbert, 5
■ The determination of the Appellate Term, should he reversed, with costs and disbursements, and the judgment of the Municipal Court reinstated.
Ingraham, P. J., McLaughlin and Mhler, JJ., concurred; Laughlin, J., dissented.
Determination reversed, with costs and disbursements in this court and in the Appellate Term, and judgment reinstated.