Burke v. Galveston, Houston & Henderson Railroad

173 A.D. 221, 159 N.Y.S. 379, 1916 N.Y. App. Div. LEXIS 6580

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1916
• Status: Published

Opinion

Page, J.:

The defendant, a foreign corporation, in 1893 applied for and received from the Secretary of State a certificate of authority to do business in this State. By virtue of that certificate it was exempted from the statute whereby a foreign stock corporation, other than a moneyed corporation, was prohibited from maintaining an action in this State upon any contract made by it within the State. (Gen. Corp. Law [Gen. Laws, chap. 35; Laws of 1892, chap. 687], § 15, as amd. by Laws of 1901, chaps. 96, 538, and Laws of 1904, chap. 490; now Gen. Corp. Law [Consol. Laws, chap. 23; Laws of 1909, chap. 28], § 15.) It thereby became entitled to the same right to transact business here as a domestic corporation had. (Lancaster v. Amsterdam Imp. Co., 140 N. Y. 576, 588.) It also was entitled to plead the Statute of Limitations, as if it were a domestic corporation. (Wehrenberg v. N. Y., N. H. & H. R. R. Co., 124 App. Div. 205.) Thus, by applying for and receiving the certificate, evidencing its intention to subject itself to the jurisdiction and laws of this State, it had extended to it all the privileges, immunities and rights of action that were given to a domestic corporation. This certificate has never been revoked and is still in full force and effect. This corporation has residing here its president and an assistant secretary and treasurer, both competent to transact business of the corporation within this State, and also a freight and passenger agent was located here. The defendant kept a bank account in Hew York city.

If it can overcome the presumption that it is doing business within this State and that it is not subject to the jurisdiction of our courts (which we do not determine), it should at least be required to present clear and convincing proof that in fact it is not so transacting business. The only proof that is submitted is the affidavit of a vice-president and general manager, residing and having his office in the State of Texas, whose knowledge of its affairs within this jurisdiction was so limited that he stated in his affidavit that the corporation had never received a certificate to do business within this State. The affidavits of neither the president, assistant secretary and treasurer, nor of the freight and passenger agent, as to what business of the corporation they transacted here were submitted. The agent designated in the certificate to receive service of process could not be found. Li my opinion it was competent for service to be made upon any officer within the State competent here to transact the business of the corporation.

Therefore, the motion was properly denied, and the order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.