Western National Bank v. Kelly

48 Misc. 366, 95 N.Y.S. 574

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1905
• Status: Published

Opinion

Fitzgerald, J.;

Plaintiff, a foreign corporation, instituted this action upon a promissory note claimed to have been given by the defendant to L. Oppenheimer & Co. and transferred to it for value. Complaint was dismissed upon the. grounds that it was not shown that plaintiff had an office for the transaction of business in the city of New York, nor that the certificate required by section 31 of the Banking Law (L. 1892, ch. 689) had been filed.

In Citizens’ State Bank v. Cowles, 89 App. Div. 281, it was directly held: “ that the mere bringing of an action to recover a sum of money upon a negotiable instrument is not doing business within this State,” and; although this case was reversed upon another point in the Court of Appeals, the court did not disapprove the proposition above cited. 180 N. Y. 346. Section 1779, Code of Civil Procedure, provides, that “ An action may be maintained by a foreign corporation, in like manner, and subject to the same regulations, as where the action is brought by a domestic corporation.” The extension of jurisdiction to actions against foreign corporations having an office in the city of New York, conferred by section 1 of subdivision 18 of the Municipal Court Act (L. 1902, ch. 580), cannot well be twisted into a limitation of former rights — confers additional power. It does not limit, alter or effect former jurisdiction, except to the extent expressly enacted.

Parmele Co. v. Haas, 67 App. Div. 457, was reversed by the Court of Appeals, 171 N. Y. 579, upon the very point upon which it is cited to sustain the judgment herein.

Judgment reversed and new trial ordered with costs to the appellant to abide the event.

Scott and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.