Amos D. Bridge's Sons, Inc. v. State

188 A.D. 500, 177 N.Y.S. 3, 1919 N.Y. App. Div. LEXIS 7746

Opinion

H. T. Kellogg, J.:

The claimant is a foreign stock corporation doing business within the State of New York. It entered into a contract with the State to construct a highway for the State, and, having completed the contract, filed this claim for additional expenses of performance due to the fault of the State. Claimant never procured from the Secretary of State a certificate that it had complied with all the provisions of law necessary to be fulfilled to authorize it to do business within the State as provided in section 15 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28).

* That section in part reads: “ 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 question here involved is whether or not an attempt to “ maintain any action in this State ” has been made, within the meaning of the provision quoted. In the prosecution of a claim there is a party plaintiff, a party defendant, a court; there are witnesses, examinations, cross-examinations, legal evidence, an opening, a closing, rules of procedure, and, finally, a judgment. Construing “ action ” according to the realities, and not sophistically, it certainly includes a claim, for a claim is, after all, for all intents and purposes, an action at law against the State in a court especially created to hear it. The language of the Code of Civil Procedure is decisive of the matter, for in section 264 it is provided: “In no case shall any liability be implied against the State, and no award shall be made on any claim against the State, except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity.” The plaintiff, not having procured a certificate to do business within the State, could not have produced legal evidence to establish liability in a court of law against an individual or corporation, had such a person contracted with it, and been guilty of the identical acts and omissions alleged against the State. Therefore, under the section quoted, no award could be made to claimant against the State. The dismissal was, therefore, necessary.

The order and judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

Since amd. by Laws of 1917, chap. 594.— Rep.