82 N.Y.S. 979 | N.Y. App. Div. | 1903
- Assuming that it would not be necessary that it should appear by the- pleadings that a Federal question is presented in order to have that question considered by the Federal courts,, it is not disputed but that it must appear by the record that the question was presented to the court when the case was tried, and it seems to us that in such a case the proper method is to present the question by a proper allegation in the pleadings. That course has been approved by the Supreme Court of the United States. If the defendant relied upon the unconstitutionality of an act upon which the plaintiff’s claim was based, it certainly would not be improper to allege in the answer that the act was unconstitutional; and where-a plaintiff seeks to avoid the application of an act of the "State Legislature which would defeat his claim upon the ground that it is in violation of the Constitution of the United States, it seems to me to be the better practice to allege in the complaint that such act was unconstitutional. No reason is given why such a practice .ought not to be encouraged. On the' contrary, it fairly presents in a concise and proper way the -Federal question that is-involved and of which a determination is sought. Certainly such an allegation is not-irrele
O’Brien and Laüghlin, JJ., concurred.
In the original complaint it was averred that the plaintiff is a foreign corporation and has its principal office for the transaction of business in the city of Hew York; that it sold to the defendants at Hew York certain conduits at the agreed price of $100,. to be delivered f. o. b. cars at Brazil, Ind. Then followed the usual allegations of performance on the part of the plaintiff, and non-payment on the part of the defendants.
Answering the complaint, the defendants averred that the plaintiff has not complied with section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd. by Laws of 1901, chap. 538), in that it had failed to file the certificate therein required.
The plaintiff after: answer served an amended complaint, and alleged that it is a foreign corporation with its principal office in the State of Indiana; that it has a selling agent in the city of Hew York; that such agent sold the conduits in question to the defendants, to be delivered f. o. b. cars, Brazil, Ind.; that plaintiff does-no manufacturing whatever in the State of Hew York, and that the law compelling the filing of a certificate, as provided by section 15 of the General Corporation Law of the State of Hew York, is a violation of the United States Constitution (Art. 1, § 8, subd. 3), and is, therefore, unconstitutional. The defendants then made a motion asking to have stricken from the complaint all those portions which alleged the unconstitutionality of section 15 of the General Corporation Law and the allegations averred by way of inducement leading thereto. From the order granting this motion this appeal is taken.
It is evident that the matter stricken out from the amended pleading constitutes no part of, nor is it esséntial to, a statement of the cause of action. The matter contained in the original complaint
It is- earnestly insisted, however, that under the issue raised by the answer of the defendants a Federal question is presented, and that the plaintiff, in order to raise such question so as to make it available in the Federal courts, must aver the same in the complaint Or it will-be precluded from raising the same or presenting it for review therein. .We tlnnk-such claim is unfounded. Section 709 of the United States Revised Statutes provides that a-Federal question is not presented unless such question be “ specially set up or claimed ’■ in the State court. This statute has been the subject of examination by the Supreme Court of the United States many times, but it has never been, held, so far as we are able to find, that thereunder a Federal question could not be raised unless it was presented by the pleadings in the action. Such is not the language of the statute nor. of the authorities construing it. Many of the cases bearing upon such question are reviewed in Oxley Stave Co. v. Butler County (166 U. S. 648). Therein it was held, as stated'in the syllabus: “ The words ‘ specially set up or claimed ’ in that section imply that if a party in a suit in a State court intends to invoke for the protection of his rights the Constitution of the United States or some treaty, statute, commission or authority of the United States, lie must so declare; and unless he does so declare ‘ specially,’ that is, unmistakably, this court is without authority to re-examine the final judgment of the State court. This statutory requirement is not met if. such declaration is so general- in its character that the
It follows that the order appealed from should be. affirmed, with ten dollars costs and disbursements.
Patterson, J., concurred.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to abide the final event.