Warner Instrument Co. v. Sweet

The plaintiff, a foreign corporation, claims upon an implied promise for goods alleged to have been delivered in Beloit, Wis. At the trial the proof showed that the goods were sold and delivered in ¡New York and not in Beloit, and the defendant moved for a dismissal of the complaint. The motion should have been granted. The place where the alleged contract was made is not an immaterial allegation. Where a foreign corporation is doing business in the State of ¡New York and sues upon a contract made in *58the State of Hew York, compliance with section 15 of the General Corporation Law is part of the cause of action. Wood & Selick v.Ball, 190 N. Y. 217. The defendant had a right to raise the issue whether the corporation was doing business in the State and whether the General Corporation Law was complied with, and he was deprived of this right by the form in which this action was brought. Moreover, even if the point of variance between the allegations and the proof should be disregarded, the plaintiff must still be held to proof of some cause of action. It has shown that it is a foreign corporation - that it sold and delivered goods in New York, and that it maintained personal representatives in New York, apparently with an office for the transaction of business. It has itself, it seems to me, made a prima facie case that it does business within this State, and therefore its proof failed to show a cause of action without further proof of compliance with our statute.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

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