Lewis Publishing Co. v. Lenz

83 N.Y.S. 841 | N.Y. App. Div. | 1903

Jenks, J. :

•We think that the plaintiff proved his case. The defendant offered no evidence.

It is contended that the learned municipal justice erred in a ruling upon evidence. The. attorney for the plaintiff testified that he wrote a letter to Gottlieb Lenz, that being the name of the defendant, and thereafter .-received through the mail a letter signed Gottlieb Lenz, which he offered in evidence. This was objected to as incompetent, irrelevant and immaterial. He further testified under objection that he had sent his letter to Mr. Lenz, to the address stated in the contract. The objection was overruled under exception and the letter was admitted. It reads : “ Received your letter 18th inst and would have paid for the books, but my ad was not in as I order it.” It is insisted that the court erred in admitting it without putting in the whole correspondence. The letter was competent as an admission- of the defendant, and the plaintiff was not bound to read in the whole correspondence. (Stones v. Sanborn, 104 Mass. 319 ; Barrymore v. Taylor, 1 Esp. 326.) Of course the defendant might have introduced any correspondence bearing on the subject-matter of the letter. (Rouse v. Whited, 25 N. Y. 170.)

The learned counsel for the appellant further contends that inasmuch as the letter denied that the plaintiff fulfilled its contract, it defeats the plaintiff’s case for the reason that the plaintiff cannot impeach his own witness. The letter tended to establish the delivery and the receipt of the books. Of course, as an admission, it must be taken in its entirety. But even if the plaintiff had called the defendant as his own witness he would not have been bound by his answer, for though he could not impeach he could contradict him. (Becker v. Koch, 104 N. Y. 394.) Moreover, the statement of a reason by the writer for non-payment is not proof of facts alleged as the basis of the reason.

The plaintiff is a foreign corporation. Its certificate of authority to do business was not obtained until 1-902. This contract was made in 1900. The point is made that the company was prohibited from, doing business by sections 15 and 16 of chapter 687 of the Laws of 1892, as amended by chapter 538 of the Laws of 1901. Section 15, before such amendment, in part provided: “No foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State until it shall have procured such certificate.” In Neuchatel Asphalte Co. v. Mayor (155 N. Y. 373) it is held that a corporation, upon obtaining the certificate, could enforce a contract made after the passage of the law and before procuring the certificate. The amendment of 1901 reads: “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.” If this provision, enacted subsequent to the making of the contract in this case^ be read as retroactive, then it is vicious as impairing the obligation of such contract. . (People ex rel. Reynolds v. Conmmon Council, 140 N. Y. 300, 307.) But such construction of purview is not required. The further provision of section 15: “No such, corporation now doing business in this State shall do business herein after December 31, 1892,” is supplemental to the general provision, and by its terms is plainly limited to corporations then doing business at the* time of the- passage of the act in 1892, and refers to contracts then existing.

The judgment should be affirmed, with costs.

Bartlett, Woodward, Hirsohberg and Hooker, JJ., concurred.

Judgment of Municipal Court affirmed, with costs.