Dore, J.
Trinity Securities Corporation, claimant and appellant, is a foreign stock corporation organized in Delaware on December 1, 1925. From the time of its incorporation it exclusively conducted its business and employed its capital in this State but it never procured a certificate of authority under section 210 of the General Corporation Law, and prior to instituting this litigation and before the decision of the court herein, it never paid the license fee required of foreign corporations by section 181 of the Tax Law. After the surrogate had announced his decision disallowing its claim and before the entry of the decree, the corporation paid the tax, procured a receipt and asked leave to submit the same and have its claim allowed. This application was properly denied. While we consider that the surrogate did not lack jurisdiction to reconsider his decision, we find that on the merits he quite properly exercised his discretion to refuse to do so in this case.
The appeal is from the decree disallowing the claim on the ground that it was barred under section 181 and from the order denying the application to submit proof of payment of the tax after the decision was made. We hold that the conclusions reached by the learned surrogate are correct and should in all respects be affirmed. The only issue raised that need be considered in this opinion is the applicability of section 181 of the Tax Law. That section, so far as relevant, provides:
“ § 181. License tax on foreign corporations. * * * Every foreign corporation, [with certain exceptions not here material] doing business in this State, shall pay 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; * * *. The amount of capital upon which such license fees shall be paid shall be fixed by the State Tax Commission, which shall have the same authority to examine the books and records in this State of such foreign corporations, and the employees thereof as it has in the case of domestic corporations, and the State Tax Commission shall have the same power to issue a warrant for the collection of such license fees, as now exists with regard to domestic corporations.”
The section concludes with the following mandatory provision: “ No action shall be maintained or recovery had in any of the courts in this State by such foreign corporation after thirteen months from the time of beginning such business within the State, without obtaining a receipt for the payment of the license fee upon the [398]*398capital stock employed by it within this State during the first year of carrying on its business in this State.”
The tax imposed by this section is a license fee assessable against a foreign corporation for the privilege of doing business within the State. (People ex rel. Griffith, Inc., v. Loughman, 249 N. Y. 369, 374, 375.)
Prior to the enactment of chapter 490 of the Laws of 1917, section 181 applied only to foreign corporations “ authorized to do business under the General Corporation Law,” that is, only to such corporations as had complied with and secured the certificate of authority prescribed by the then section 15 of the General Corporation Law, later section 110 of the Stock Corporation Law of 1923, now section 210 of the General Corporation Law of 1929. The amendment of 1917, among other things, substituted the words “ doing business in this State ” for “ authorized to do business under the General Corporation Law.” Since the year 1917 section 181 embraces “ every foreign corporation * * * doing business in the State ” (with certain exceptions, irrelevant here, relating to banking, fire insurance companies, etc.), irrespective of compliance or noncompliance with present section 210 of the General Corporation Law (formerly section 15), and cases indicating an opposite ruling are no longer authority. (People v. Tropical Fruit Corp. [1930], 252 N. Y. 605.)
This proceeding by a foreign corporation that has exclusively conducted, its business in the State without procuring the certificate of authority required or paying the license fee required before suing in our courts, is an “ action ” within the purview of section 181, as the foreign corporation has initiated the proceedings seeking affirmative relief in the Surrogate’s Court. The proceeding was commenced without right and the fact that after the surrogate’s decision of May 20,1935 (155 Misc. 632), the corporation, in order to comply with the decision, paid the license fee does not take it from the purview of the statute. The appellant cannot continue, maintain or recover in this proceeding which in the first instance it had no right to initiate or bring. Neither should the courts encourage gambling on the outcome of a decision and belated efforts to comply when the ruling is adverse.
Commenting upon this present provision as now contained in section 181 of the Tax Law, the Board of Statutory Consolidation in its report made in 1907, at page 5898, stated: “ Neither in the original section [Laws of 1896, chap. 908, § 181] nor in the amendment [Laws of 1906, chap. 474, § 1] has there been inserted the provision contained in the statute of 1895 [Laws of 1895, chap. 240] as to how the Comptroller was to fix the amount of the capital [399]*399stock employed where he disagreed with the report made by the foreign corporation. * * * in the absence of any provision relating to the method for fixing the amount of the capital stock of a foreign corporation under the provisions of § 181, where the Comptroller disagrees with the corporation, it has been deemed wise to incorporate it as a part of § 181, as embracing statutory law of a general nature that has not been expressly repealed or superseded by subsequent legislation on the same subject.”
The purpose of this provision formerly contained in chapter 240 of the Laws of 1895, and now incorporated in section 181 of the Tax Law, is correctly and clearly stated in said Report of the Board of Statutory Consolidation: “ Where the Comptroller [now the State Tax Commission] disagrees with the corporation ” concerning the claimed amount of its capital stock employed within this State, then the State Tax Commission is empowered and authorized to examine the books and records in this State of such foreign corporation and the employees thereof. The Board of Statutory Consolidation clearly considered that the proceedings must be initiated by the foreign corporation as it discusses how the Comptroller is to fix the amount of capital stock employed when he disagrees with “ the report made by the foreign corporation.”
Section 197 of the Tax Law provides that in order to escape additional interest or penalty, “A tax or fee imposed by section one hundred eighty-one of this chapter shall be due and payable immediately after the close of the first year of carrying on business in this State.” It is to be noted that there is no clause granting any postponement of payment to a delinquent foreign corporation because of non-action, without fault, on the part of the State Tax Commission. The statute does not say the tax or fee shall be due after the notice is received but that it shall be due after the close of the first year of conducting business, and then it adds, not in the alternative but as an additional provision, “ and
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Dore, J.
Trinity Securities Corporation, claimant and appellant, is a foreign stock corporation organized in Delaware on December 1, 1925. From the time of its incorporation it exclusively conducted its business and employed its capital in this State but it never procured a certificate of authority under section 210 of the General Corporation Law, and prior to instituting this litigation and before the decision of the court herein, it never paid the license fee required of foreign corporations by section 181 of the Tax Law. After the surrogate had announced his decision disallowing its claim and before the entry of the decree, the corporation paid the tax, procured a receipt and asked leave to submit the same and have its claim allowed. This application was properly denied. While we consider that the surrogate did not lack jurisdiction to reconsider his decision, we find that on the merits he quite properly exercised his discretion to refuse to do so in this case.
The appeal is from the decree disallowing the claim on the ground that it was barred under section 181 and from the order denying the application to submit proof of payment of the tax after the decision was made. We hold that the conclusions reached by the learned surrogate are correct and should in all respects be affirmed. The only issue raised that need be considered in this opinion is the applicability of section 181 of the Tax Law. That section, so far as relevant, provides:
“ § 181. License tax on foreign corporations. * * * Every foreign corporation, [with certain exceptions not here material] doing business in this State, shall pay 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; * * *. The amount of capital upon which such license fees shall be paid shall be fixed by the State Tax Commission, which shall have the same authority to examine the books and records in this State of such foreign corporations, and the employees thereof as it has in the case of domestic corporations, and the State Tax Commission shall have the same power to issue a warrant for the collection of such license fees, as now exists with regard to domestic corporations.”
The section concludes with the following mandatory provision: “ No action shall be maintained or recovery had in any of the courts in this State by such foreign corporation after thirteen months from the time of beginning such business within the State, without obtaining a receipt for the payment of the license fee upon the [398]*398capital stock employed by it within this State during the first year of carrying on its business in this State.”
The tax imposed by this section is a license fee assessable against a foreign corporation for the privilege of doing business within the State. (People ex rel. Griffith, Inc., v. Loughman, 249 N. Y. 369, 374, 375.)
Prior to the enactment of chapter 490 of the Laws of 1917, section 181 applied only to foreign corporations “ authorized to do business under the General Corporation Law,” that is, only to such corporations as had complied with and secured the certificate of authority prescribed by the then section 15 of the General Corporation Law, later section 110 of the Stock Corporation Law of 1923, now section 210 of the General Corporation Law of 1929. The amendment of 1917, among other things, substituted the words “ doing business in this State ” for “ authorized to do business under the General Corporation Law.” Since the year 1917 section 181 embraces “ every foreign corporation * * * doing business in the State ” (with certain exceptions, irrelevant here, relating to banking, fire insurance companies, etc.), irrespective of compliance or noncompliance with present section 210 of the General Corporation Law (formerly section 15), and cases indicating an opposite ruling are no longer authority. (People v. Tropical Fruit Corp. [1930], 252 N. Y. 605.)
This proceeding by a foreign corporation that has exclusively conducted, its business in the State without procuring the certificate of authority required or paying the license fee required before suing in our courts, is an “ action ” within the purview of section 181, as the foreign corporation has initiated the proceedings seeking affirmative relief in the Surrogate’s Court. The proceeding was commenced without right and the fact that after the surrogate’s decision of May 20,1935 (155 Misc. 632), the corporation, in order to comply with the decision, paid the license fee does not take it from the purview of the statute. The appellant cannot continue, maintain or recover in this proceeding which in the first instance it had no right to initiate or bring. Neither should the courts encourage gambling on the outcome of a decision and belated efforts to comply when the ruling is adverse.
Commenting upon this present provision as now contained in section 181 of the Tax Law, the Board of Statutory Consolidation in its report made in 1907, at page 5898, stated: “ Neither in the original section [Laws of 1896, chap. 908, § 181] nor in the amendment [Laws of 1906, chap. 474, § 1] has there been inserted the provision contained in the statute of 1895 [Laws of 1895, chap. 240] as to how the Comptroller was to fix the amount of the capital [399]*399stock employed where he disagreed with the report made by the foreign corporation. * * * in the absence of any provision relating to the method for fixing the amount of the capital stock of a foreign corporation under the provisions of § 181, where the Comptroller disagrees with the corporation, it has been deemed wise to incorporate it as a part of § 181, as embracing statutory law of a general nature that has not been expressly repealed or superseded by subsequent legislation on the same subject.”
The purpose of this provision formerly contained in chapter 240 of the Laws of 1895, and now incorporated in section 181 of the Tax Law, is correctly and clearly stated in said Report of the Board of Statutory Consolidation: “ Where the Comptroller [now the State Tax Commission] disagrees with the corporation ” concerning the claimed amount of its capital stock employed within this State, then the State Tax Commission is empowered and authorized to examine the books and records in this State of such foreign corporation and the employees thereof. The Board of Statutory Consolidation clearly considered that the proceedings must be initiated by the foreign corporation as it discusses how the Comptroller is to fix the amount of capital stock employed when he disagrees with “ the report made by the foreign corporation.”
Section 197 of the Tax Law provides that in order to escape additional interest or penalty, “A tax or fee imposed by section one hundred eighty-one of this chapter shall be due and payable immediately after the close of the first year of carrying on business in this State.” It is to be noted that there is no clause granting any postponement of payment to a delinquent foreign corporation because of non-action, without fault, on the part of the State Tax Commission. The statute does not say the tax or fee shall be due after the notice is received but that it shall be due after the close of the first year of conducting business, and then it adds, not in the alternative but as an additional provision, “ and without interest or penalty if paid within thirty days after notice.” Showing the intent of the Legislature, this section, as amended, provides for both interest and penalty therein: “ or in any other case if such tax or fee is not paid to the Tax Commission within thirty days after the same becomes due ” the corporation liable to pay the tax or fee shall pay in addition to the amount of the tax “ a sum equal to five per centum thereof ” and “ one per centum additional for each month the tax or fee remains unpaid, which sum shall be added to the tax or fee and paid or collected therewith.”
The decision of the Court of Appeals in International Petroleum. Co. v. Mexican Sinclair Petroleum Co. (238 N. Y. 554 [1924]) [400]*400is distinguishable from this case and cannot be controlling here. As indicated in the opinion of the Special Term, that case appears to have rested on the then established authority that section 181 related only to foreign corporations authorized to do business in the State, that is to corporations that had complied with section 15 of the General Corporation Law (now section 210 of the General Corporation Law). Fairmount Film Corporation v. New Amsterdam Casualty Co. (189 App. Div. 246) and Hoevel Sandblast Machine Co. v. Hoevel (167 id. 548), which “ constrained ” the court at Special Term in the International Petroleum case to hold that the defense of section 181 as alleged was insufficient because of the failure to comply with section 15, are no longer authority on that point of law. As hereinbefore indicated, in People v. Tropical Fruit Corp. (252 N. Y. 605), the Court of Appeals in January, 1930, ruled that foreign corporations doing business in the State are liable for the license tax regardless of whether they had obtained the certificate authorizing them to do business here.
The amendments indicated above and other amendments of the law, as well as the purposes indicated in the report of the Board of Statutory Consolidation, show that the Legislature realized it would be impracticable, if not impossible, for the State Tax Commission to discover foreign corporations which came into the State and utilized the privilege of doing business therein without obtaining the certificate of authority required by section 210 of the General Corporation Law, and conducted their business in competition with corporations which, in conformity with law met the tax obligations imposed upon them by section 181.
Of course the Tax Commission must ultimately fix the amount of the tax or fee; no other body is competent to do so. But the issue on this appeal is a narrower one, viz., Can a foreign corporation that has not paid the tax sue in our courts?
¡i' We hold that the plain provisions of section 181, as amended, require the payment of the license fee imposed within thirteen months after -the time of beginning business within this State as a condition to the right of affirmative action by a foreign stock corporation carrying on business in this State. There is, it is true, no express requirement to file reports as in the case of domestic corporations, but there is an express and mandatory prohibition against maintaining an action in any of the courts of this State if the license fee is not paid. No special or astute analysis of the Tax Law is necessary to understand the meaning of such plain and unambiguous language. The obligation cannot be obviated and the statute frustrated by neglect to initiate appropriate steps before the State Tax Commission if the foreign cor[401]*401poration desires to sue in the courts of this State; and any foreign corporation desiring to do so can easily ascertain with accuracy the exact amount of its taxable liability and cannot be deprived of the right to maintain an action, if it has procured the receipt required.
Halsey v. Jewett Dramatic Co. (190 N. Y. 231) is not controlling. That decision, made in 1907 on a .question of pleading, construed chapter 558 of the Laws of 1901, and also chapter 240 of the Laws of 1895. The act has been substantially amended since the ruling in that case and, as herein indicated, subsequent decisions show that it is the policy of our law to forbid appeal to our courts in affirmative actions by foreign corporations that have not paid the tax as provided in section 181. Nor is Fairmount Film Corp. v. New Amsterdam Casualty Co. (189 App. Div. 246) controlling. As pointed out in the opinion in that case, the “ real point in the case ” was the ruling that the statutory prohibition related to contracts of foreign corporations negotiated on consent and not to contracts arising by operation of law as was the case with the attachment undertaking there considered. Moreover, it is clear from the opinion that the court did not expressly consider the effect of the amendments of 1917.
In Howden & Co., Inc., v. American C. & E. Corp. (194 App. Div. 164) this court said: “ The purpose of the amendment, therefore, by the insertion of these words would seem clearly intended to prohibit the recovery of a judgment in an action which had been lawfully brought prior to the expiration of the thirteen months, if after the expiration of such time the tax were not paid. The general policy of the law is apparent to forbid an appeal to the courts in an affirmative action by any foreign corporation which has not obtained a certificate of authority as prescribed by section 15 of the Geneial Corporation Law or which, after thirteen months, has not paid the tax as provided by section 181 of the Tax Law.”
In International Text Book Co. v. Tone (220 N. Y. 313 [1917]) the court said: “ Section 181 of the Tax Law prohibits an action of any kind by a foreign corporation unless within a stated period after beginning business within the State, the prescribed license tax is paid.”
In our opinion the surrogate correctly ruled that as against this appellant, a defaulter for over nine years in the payment of this license fee, the Legislature has properly imposed a penalty, namely, a bar to access to our courts for affirmative relief. It is the duty of the courts to make the penalty effective.
The order and decree so far as appealed from should be affirmed, with costs.
[402]*402Martin, P. J., and Townley, J., concur; Glennon and Untermyer, JJ., dissent* and vote for reversal.