129 N.Y.S. 18 | N.Y. App. Div. | 1911
Plaintiff seeks to recover of defendant in this action an unpaid balance of the purchase, price of twenty-seven shares of the
Plaintiff urges that his' transfer of stock to defendant was not immoral nor illegal, except only so far as it was -by the statute made so by reason of his failure to pay the tax, and that no intention of the Legislature to penalize by a forfeiture of one’s property an unwitting violation of the statute should be imputed without convincing evidence of such intention.The First Department has considered the effect of this statute and its application to. an action to enforce a claim based upon a transfer of stock upon which the required tax' had not been paid. (Bean v. Flint, 138 App. Div. 846.) In that case Miller, -J., after reciting the provisions of the statute in question, continues: “It will, be observed that the statute radically différs from those under which it has been held permissible to validate the transfer by subsequently, affixing stamps. This statute not Only omits to provide for doing that, but distinctly provides that the transfer- shall not be made the basis of any action or legal proceedings unless the tax is paid' ‘at the time of such transfer.’ The payment of the tax might easily be evaded if a transfer could be rendered valid by subsequently affixing stamps, and so by language, which does not admit of construction, the Legislature has provided
Plaintiff’s further claim that this provision of the statute is unconstitutional, if it precludes him from recovering upon his contract when he pays the tax, which he has failed to pay only through inadvertence, it being, as is claimed, in effect a forfeiture of his property and a taking thereof without due process of law, does not seem to be tenable. The effect of the statute is not to impose upon the offender, who violates its provisions, either intentionally, or through ignorance, forfeiture of property; but is rather to deny to him the right to enforce by the power of the courts of the State a contract, which he, by his own omission, or neglect, has made unenforcible. Like a contract made in this State by a foreign stock corporation, which is doing business in this State without having filed the required statutory certificate, the contract itself may not be invalid, but enforcement of it in the courts of this State cannot be had.
The plaintiff’s exceptions should be overruled and judgment ordered for defendant on the directed verdict, with costs.
Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and ■ judgment directed for the defendant upon the nonsuit, with costs.