41 N.Y.S. 1056 | N.Y. Sup. Ct. | 1896
The action, was brought upon an agreement made January 28, 1890, by the defendant with the firm of O’Reilly,.
The defendant demurred, first, that the complaint did not state facts sufficient to constitute a cause of action; second,, that the plaintiff has not legal capacity to sue, as. it is not an existing foreign corporation, and that it is not alleged that it is authorized to do' business in the state of Hew York and maintain an action in the courts of this state, and has procured a certificate from the secretary of state that it has complied with all the requirements of the law authorizing it to do business in this state and' that the business of plaintiff is such as may be lawfully carried on by a corporation incorporated under the laws of this state for such and similar business, and third, that there is defect of parties defendant in that Francis McCabe has not been made a defendant. The last objection is not urged' by appellant in his brief. '
Appellant relies upon the fact that the complaint failed to allege compliance with' section' 15, chapter 687 of the Laws of 1893, requiring a foreign corporation to obtain from the secretary of state a certificate of authority to do business in this state; but the question whether such compliance must be alleged and proved by the plaintiff as a part of his cause of action cannot be regarded as an open one in this court. It has been held that the want'of such a certificate is matter of defense to be. pleaded by the defendant and the complaint, therefore, is not open to objection on that ground. Nicoll v. Clark, 13 Misc. Rep. 128; Sawyer Lumber Co. v. Bussell, 84 Hun, 114.
The statute, so far as it is essential to tike- point under consideration, provides, “ Ho such corporation now doing business in this state shall do business herein, after December 31, 1893, without
These considerations also dispose of the objection that the complaint does not aver that the plaintiff is a stock corporation and, therefore, entitled to do business in this state; and that It is not alleged in what state the contract was made.
As to the objection that the plaintiff is not an existing foreign corporation and, therefore, has not capacity to sue, owing to the expiration of the time for which it was incorporated, in this case it- does not appear that the corporate - existence is terminated although the term for which it was organized to transact business has expired. On the contrary, the corporation appears to be continued by the statutes of West Virginia for the purpose of bringing actions to collect debts and claims due it. “ So long as the plaintiff exists, and is recognized by the courts and authorities of that state (in which it is incorporated), it is entitled to the same recognition here, unless it appears it was formed for purposes illegal hóre, or was doing acts prohibited by the laws of this state to its own
There is nothing in the.complaint to show that the corporation is- defunct and that its affairs are being administered by trustees or a receiver. In Rodgers v. Ins. Co., 148 N. Y. 34, cited by appellant, a dissolution of a domestic corporation, had been decreed by our own courts and a receiver appointed. A judgment had been recovered against it in Illinois, under the statute of that state which, continued dissolved insurance corporations for two years for the purpose of winding up their affairs and prosecuting suits by and against them. An order was asked in this state -directing the receiver here to pay the-amount of that judgment and it was held that the judgment could'not bind the receiver and should not be satisfied in the manner sought out of the assets in his hands. The facts: are different from the case before us, and. the principle involved is not the. same, for the corporation there had been actually dissolved,
As the corporation,, by the laws of the state of its incorporation, is in effect continued in existence for the purposes of suits by it to collect its debts, the provision of our statute (Laws of 1892, above, § 30) providing that upon dissolution the directors or other persons appointed by the legislature or by a court of competent jurisdiction shall be the trustee of its creditors, stockholders and members, with authority to sue for and collect its debts, has no application.
The laws of West Virginia are sufficiently pleaded by the averment that “ under and pursuant to ” them, suits may be brought,, under the circumstances of this case, in the name of the corporation. Berney v. Drexel, 33 Hun, 34.
Appellant objects- that the complaint fails to aver that the plaintiff has paid-the license fee required by chapter 240. Laws of 1895, of certain foreign corporations authorized to do business in- this-state, of one-eighth of one.per cent, upon the amount of its capital stock, the statute prohibiting actions; for recoveries by - such eor•porations unless they first obtain- a receipt for such license fee, as-well as the certificate of authority prescribed by chapter 687, Laws; of 1892. It would seem, that the principle of the- case-of Nicoll v.
The question of the capacity of the plaintiff to sue cannot be raised by demurrer for want of facts constituting-a. cause of action: Bank of Lowville v. Edwards, 11 How. Pr. 216; Viburt v. Frost, 3 Abb. Pr. 120; Myers v. Machado, 6 id. 198; 14 How. Pr. 149; 6 Duer, 678; Hobart v. Frost, 5 Duer, 672. Demurrer to a complaint in an action by a corporation on the ground last stated does not raise the objection of want of capacity to sue. Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People ex rel. Lord v. Crooks, 53 id. 648. And it has been held that an allegation in the complaint that the defendant is a corporation constitutes no part of the cause-of action but simply relates to the character or capacity of the defendant. Adams v. Lamson Consolidated Store Service Co., 59 Hun, 127.
Finally it is urged as an objection to the complaint, that it does not allege “ at what time the guarantor was to pay the antecedent debt,” and the appellant cites the case of Donley v. Bush, 44 Texas, 1, as authority for the proposition that the guaranty of an overdue obligation "which is silent as to the time of payment does not create a liability to pay a debt at any. particular time. That case was decided upon a peculiar state of facts, but has no application here for a sufficient reason: the plaintiff - has not sued upon á mere guaranty of a debt but on an express promise, in writing, for value, to pay a claim against McCabe. A promise to pay, without' specifying the time of payment, is a promise to pay absolutely and immediately and may be enforced with or without prior demand. The appellant urges that, inasmuch as- the complaint contains anaverment that McCabe has not paid -the debt upon demand, the promise of defendant, is pleaded as a mere guaranty of collection. But the allegation of an absolute promise by the defendant to pay is not qualified by th'e averment in question, which is unnecessary, to the cause of 'action and may be regarded as superfluous.
McAdam; and Bischoff, JJ., concur.
Judgment affirmed, with costs.