107 N.Y.S. 88 | N.Y. App. Term. | 1907
Lead Opinion
The plaintiff brought this action to recover upon two promissory notes for the sum of fifty dollars each. Defendants appeared in the action by the same attorneys and interposed a demurrer to the complaint on the ground that it did not on the face of the complaint appear that plaintiff had legal capacity to' sue, as plaintiff did not allege compliance with section 15 of the General Corporation Law, as amended by chapter 538 of the Laws of 1901.* The demurrer was overruled, and both defendants interposed answers which admitted the making and endorsement of the notes sued upon. The defendant Nathan Hutkoff by his answer put in issue due presentation, non-payment and notice of dishonor. After formal proof tending to establish the liability of defendants, upon cross-examination of the
The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
Concurrence Opinion
(concurring). I concur. The evidence does not sustain a finding that the plaintiff is doing business in this State. The phrase “ doing business in this State ” has been held to imply corporate continuity of conduct, “ 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.” Penn. Collieries Co. v. McKeever, 183 N. Y. 98. In this case there is hot an evidentiary fact or circumstance indicative either of action or intent on the part of the plaintiff.
Erlanger, J., concurs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.