John A. Roebling's Sons Co. v. Belden

49 N.Y.S. 933

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1898
• Status: Published

Opinion

PER CURIAM.

We see no reason for interfering with the order as granted by the court below. There is undoubtedly a misstatement contained in the plaintiff’s complaint, wherein he alleges the plaintiff to be a foreign porporation organized and existing under and by virtue of the laws of New York. It is apparent that it was the intention to allege that the plaintiff was a foreign corporation, and that it had complied with the laws of this state in reference to doing business within the state. The statute provides that no foreign corporation doing business in this state without the certificate mentioned therein sháll maintain any action in this state on any contract made by it in this state, until it shall have procured such certificate. In order to show a right to maintain the action, the plaintiff alleged a compliance with the laws of the state of New York in respect to foreign corporations. It is entirely, immaterial for the purpose of the disposition of this motion whether it was or was not necessary for it to allege such compliance as a condition precedent to its maintaining the action. Having made the allegation and presented the issue, the defendant, by denying it, became entitled to have that issue disposed of before a recovery could be had against him. It is undoubtedly true that the denial in reference to the existence of the plaintiff as a foreign corporation is insufficient, but the denials of the other allegations as to the plaintiff’s right to maintain the action raised an issue which the court could not disregard.

The order 'appealed from should be affirmed, with |10 costs and disbursements.