123 N.Y.S. 769 | N.Y. Sup. Ct. | 1910
The indictment alleges a single sale of fruit
trees to one Alvin E. Allen. Does this constitute a charge of “ conducting, carrying on or transacting business ” within the county of Orleans? We fail to find any reported cases construing these words as used in the Penal Law, but the words - “ to do business ” have been frequently construed in connection with the statutes relative to foreign corporations. It has been held that “ doing business ” in this State implies ■ 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 business; a continuous business, not one of a temporary character. Penn Collieries Co. v. McKeever, 183 N. Y. 98. It has been held that a foreign corporation making two separate sales of goods within the State is not necessarily “ doing business ” within the meaning of the statute. Ozark Cooperage Co. v. Quaker City Cooperage Co., 112 App. Div. 62.
I fail to see how the words “ to transact business ” can be given a narrower significance than the words “ to do business.” As the indictment is limited to a single sale, and
As the offense charged in this indictment is a single sale, I am of the opinion that judgment hereon would not be a bar to an indictment for transacting business within the meaning above indicated. I direct the case to be resubmitted to the grand jury on that theory, if the facts so warrant.
