Portland Company, Appellant, v. Hall & Grant Construction Company and Charles Ward Hall, Respondents

Portland Company, Appellant, v. Hall & Grant Construction Company and Charles Ward Hall, Respondents. First Department, November 15, 1907. Corporation — suit by foreign corporation — section 15, General Corporation Law, construed —pleading — answer must show plaintiff is stock corporation—when corporation does business in this State—when business not interstate commerce. ' A foreign corporation is presumptively entitled to sue in the courts of this State, and in an action by such corporation for work, labor and services and materials furnished, a defendant wishing to take the defense that the plaintiff is not entitled to sue because not licensed to do business here as provided by section 15 of the General Corporation Law, must allege not only that the plaintiff has no certificate allowing it to do business, but also that it is a stocle corporation. In the absence of the latter allegation the charter of the plaintiff is not admissible to show that it was a stock corporation. As section 15 of the General Corporation Law is in derogation of the general right of the foreign corporation to do business-in this State and to bring action on contracts made here, it is incumbent on the party taking the defense to bring the case within the express prohibition of the statute. Neither is it a defense to allege that such foreign corporation has not paid the license fee necessary to authorize it to do business in this State (Tax Law, § 181) in the absence of an allegation showing that the plaintiff was a stock corporation, for said section of the Tax Law applies only to foreign corporations required to be licensed to do business under section 15 of the General Corporation Law. A foreign corporation having an office for the transaction of. business in this. State, which contracts here to supply labor and materials and construct elevators in buildings in this State is doing business here within the meaning of the statute. ■ The intent of section 15 of the General Corporation Law is to prohibit a foreign corporation from engaging in business in the State without obtaining a license and to prohibit the maintenance of any action on a contract made in this State in violation of the provisions of the section. The statute prohibits both the making of a contract and an action thereon until permission to do business be obtained. A contract by a foreign corporation to manufacture and erect elevators in a building situated in this State is not interstate commerce. The same rules apply in an action by such foreign corporation against a surety who guaranteed the performance of the contract on the part of the buyer. Appeal by the plaintiff, the Portland Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 28th day. of November, 1906, upon the. dismissal of the-complaint by direction of the court at the close of. the "plaintiff’s case upon a trial at the'New York Trial Term. ' Dallas Flannagan, for the appellant. John Larkin, for the respondents. [MAJORITY — Ingraham, J.:] Ingraham, J.: This action was brought to recover the amount alleged to be due under a contract whereby the'.plaintiff, a foreign corporation, agreed to “furnish and provide all materials and labor for the installation of certain hydraulic elevators at the building No. 140 Nassau Street, in the City and County of New York, in the manner and under the conditions as prescribed and set forth ” in said Contract and specifications, the complaint alleging, that the plaintiff substantialbvpefformed this contract and that the defendant,' a corporation, had failed to pay the balance of the amount due thereunder. The complaint further alleges that the defendant Charles Ward Hall, for a good and valu- ■ able consideration in writing, agreed with the plaintiff and guaranteed that the defendant corporation would pay the sum in said, contract mentioned upon a compliance by "the plaintiff with the terms of said contract, and' that although duly demanded the .defendant .Hall has refused and neglected to pay the plaintiff the. amount 'due and unpaid tinder the said contract. The answers of defendants, as a separate defense, alleged that “ neither at said time had, nor at any other time has, the plaintiff obtained from the Secretary of State of the State of New Y ork, a certificate that' it has or had complied with all the requirements of law, or any thereof, tb authorize it to do business in the State of New Y ork, and that its businecs was such as may be lawfully carried on by a corporation organized under' the laws of this State for such or similar business ; ” and further alleged : “ That the plaintiff had not theretofore and has not paid to the Treasurer of. the State of New York the license fee provided by law for the privilege of carrying on its business within this State,-and has not obtained from said Treasurer a receipt.for such license fee,” Upon the trial after plaintiff, had proved its cause of action but before it had rested, defendants offered in evidence the charter of plaintiff to prove the defense that plaintiff was a stock corporation organized under the laws of the State of Maine and had not complied with the General Corporation Law and the Tax Law of this State and was, therefore, prohibited from com-. mencing or maintaining any action in this State. Plaintiff’s counsel objected to this evidence upon the ground that it was not pleaded that the plaintiff was a stock corporation and there was no allegation in the answers that plaintiff was a stock corporation. This objection was overruled and the evidence admitted, to which the plaintiff excepted. No motion was made to amend the answers, whereupon the plaintiff , rested and. defendants moved to dismiss the complaint upon the ground, among others, that “it appears affirmatively that the plaintiff is a foreign corporation; that it has not complied with sections 15 and 16 of the Corporation Laws of this State applicable thereto, nor with the provisions of Chapter 908 of the Laws of 1896, Section 181 of Chapter 908 of the Laws of 1896, the Tax Law of this State, and has been engaged in business in this State unlawfully, and that proof made upon the plaintiff’s case establishes these facts.” The i court dismissed the complaint, not upon the merits, but solely j because of its failure to comply with these statutory requirements. To that dismissal the plaintiff excepted, and upon this appeal there is presented the question whether the evidence that plaintiff was a stock corporation and had not complied with the provisions of section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd.) or of section 181 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558) was admissible under the pleadings. By section 1779 of the Code of Civil Procedure an action may be maintain by a foreign corporation, in like manner, and subject to the same regulations, as' where the action is brought by a domestic corporation, except as otherwise specially prescribed by law. This provision has been the law of this State for many years and it has always been held that a corporation created by or .under the laws of any other State, of the United States or of any other country, with power to sue, may sue in the courts of this State. (Silver Lake Bank v. North, 4 Johns. Ch. 370; Williams v. Bank of Michigan, 7 Wend. 539; Direct U. S. Cable Co. v. Dominion 'Tel. Co., 84 N. Y. 153;) To sustain this' judgment, therefore, the defendants must allege and prove that bv some specific provision of law the plaintiff, a corporation organized under the laws of the State of Maine, is prohibited from maintaining an action in the Supreme Court of the State of New York, and they rely upon section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd. by- Laws of 1904, chap. 490). This section provides that no foreign “ stock corporation other than «a. moneyed corporation, shall do business .in this State without having first procured from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do business in this State, and that the business of the corporation to he carried on in this State is . such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business. * * * Ho such corporation now doing business in this State shall do business herein after December thirty-first, eighteen hundred and ninety-two, without having procured such certificate from the Secretary of State. * * *' Ho foreign stock corporation doing business in this State shall maintain any action in this State upon any contract made by it in this State unless prior to the making of such -contract it shall have procured such certificate.” This provision being a restriction upon the general right of a foreign corporation to do business in this Staté or to maintain an action in this State under a contract made by it in this State, it is incumbent upon the party raising the objection to bring the case within the express prohibition of the statute. (Parmele Co. v. Haas, 171 N. Y. 579, which held : “ When a foreign corporation firings a suit in the courts of this State and states a good cause of action in the complaint, it will be assumed that it is' rightfully in the State and properly in court until the contrary is made to appear.”) And in South Bay Co. v. Howey (113 App. Div. 383) it was held: Where the complaint alleged that the plaintiff was a foreign Corporation and it did not appear from the complaint that the plaintiff was a stock corporation and, therefore, within the prohibition contained in this-section, to entitle a. defendant to take advantage of this-omission, it must appear upon the record that the plaintiff was a stock corporation' or if that fact did not appear from the complaint it must be alleged in the answer and proved upon the trial. In that case the fact that the plaintiff was a stock corporation was alleged in the answer, but no proof of that fact was offered upon the trial, and it was, therefore, held that the defense was not available to the defendant, This case presents the converse of that proposition — that there was no allegation in the answers that the plaintiff was a stock corporation and thus within section 15 of the General Corporation Law. The allegation of the answers is that the plaintiff was a foreign corporation organized under the laws of the State of Maine and not of the laws of the State of New York, and that at the time the contract set forth in the complaint herein was made the plaintiff had come into the State of New York to transact business of the same nature as that contemplated by the said contract; that in consideration of the covenants in said contract reserved to be performed by the defendants the said plaintiff did unlawfully enter into the said contract without having obtained from the Secretary of State a certificate that it had complied with the requirements of law, or any thereof, to authorize it to do business in the State of New York. This allegation may be conceded, and yet unless it further appeared that .the corporation was such a corporation'as that specified in section 15 of the General Corporation Law.it was not prohibited from either doing business in this State or. maintaining an action to recover upon a contract made within this State. It was only to a foreign stock corporation that the section applied, and that fact not appearing by the complaint, to make the defense available the defendants were bound to plead the facts that would bring the corporation within the provisions of section 15 of the General Corporation Law. The answers also • allege that the action cannot be sustained under section 181 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558). That section provides that “ every foreign corporation,” with certain exceptions not here material, “ authorized to do business under the General Corporation Law, shall pay to the State Treasurer, for the use of the State, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this State, to be computed upon the basis of the capital stock employed by it within this State' during the first year of carrying on its business in this State.” Tins' tax is imposed, not upon all foreign corporations doing business in the State, but only such' corporations as are authorized to do business under the General Corporation Law. There is no provision of the General Corporation Law under which the plaintiff was author-/ ized to do business in this State. It had applied for no license under section 15 of the General Corporation Law, and had received none, and under this provision of the Tax Law, therefore, no tax was imposed 'upon the corporation. If the plaintiff was a stock corporation, section' 15 of the General Corporation Law would: undoubtedly have prohibited it from transacting- business in this State until it had taken out a license required by that section and paid the tax imposed by section 181 of the Tax Law; but until plaintiff received some authority to do ’ business within this State under section 15 of the General Corporation Law no tax was imposed by section 181 of the Tax Law, and no penalty was imposed-L upon the plaintiff for failure to pay that tax. Section 181 of the Tax Law further provides: “ ISTo action shall be maintained or recovery had in any of the- courts in this State by such foreign corporation without obtaining a receipt- for the!license fee hereby imposed within thirteen months after beginning such business within the State.” As- this prohibition applied only to “ such foreign corporation,” namely, a corporation specified in the section as one “ authorized to do business under the General Corporation Law,” in the absence of an allegation in the pleadings and proof that the plaintiff was a stock corporation,-or was a corporation which was authorized to do business under the General Corporation Law, this section had no application. We think, therefore, it was error to admit prooj: of the fact that the plaintiff was a stock corporation, and, in the absence of an allegation in the pleadings that the plaintiff was a stock corporation or .had been authorized to do business under the General • Corporation Law, that the complaint was improperly dismissed. ' ■ ..... Another question is presented upon which we should express an opinion, as it will arise upon the new -trial. We think it clear that this corporation did business within this State. It had an office in this State for the transaction of business; it made a contract in this State to supply the materials for and to construct these elevators, and actually constructed them, furnishing the labor necessary therefor; and it alleges as a ground of recovery a substantial per-, formance of the contract by which the elevators were actually constructed in a building in this State. It is difficult to see what more a corporation, whose business was the construction of such elevators, could do. in the transaction of its business. It is claimed by the plain-; tiff that there is no evidence to show that it was doing business at the, time the action was commenced. But the prohibition against maintaining an action does not relate to the time of the commencement of the action, but provides that no foreign stock corporation doing business in this State shall maintain any action in this State upon any contract made by it in this State, unless prior to the making of such contract it shall have procured such certificate. The plain intent of this statute is to prohibit a foreign corporation from engaging in business in the State without obtaining a license and to prohibit the maintenance of any action upon a contract made in this State in violation of the provisions of the section. It is" theX making of the contract until permission is obtained that is pro-1 hibited, as well as maintaining an action in the courts of this State i upon such contract. Hor can it be said that a contract to manufacture and erect elevators in a building situated in this State for the use of the building is interstate commerce and under the exclusive control of the Federal government. If the contract related solely to the manufacture of these elevators and delivering them in the State of New York a different question would be presented; but here the plaintiff ■ was not only to manufacture elevators as ■ articles of commerce and deliver them here, but was also to install ’ them in the building, and" it was for the manufacture and installa- j tion as completed elevators that the plaintiff contracted and which ] completion of the contract it alleges as its cause of action for which'' it is entitled .to recover. The'contract of guaranty by the defend-' ant Hall was to guarantee the performance of the original contract with the defendant corporation, and having been also made within this State the same rule applicable to the contract with the corporation applies to the contract of the individual. For the error above indicated, however, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event, Patterson, P. J., Clarke, Scott and Lambert, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. Sic. See Gen. Corp. Law (Laws of 1892, chap. 687), § 15, as amd. by Laws of 1901, chaps. 96, 538, and Laws of 1904, chap. 490; Id. § 16, as amd. by Laws of 1895, chap. 672. —[Rep.