Opinion
December, 1904.
Daniel S. O'Brien, for the appellant.
Robert McC. Robinson, for the respondent.
This is an action sounding in tort to recover for goods sold and delivered to the defendant by the plaintiff under a written agreement of sale, which was in the form of an order addressed to "The Harvard Co., Canton, Ohio," and which provided, among other things, that "This order is not subject to countermand, and is binding upon said Company when received and accepted by it at Canton, Ohio." There is no dispute that the goods were delivered and that the defendant owes some part of the purchase price, but the defendant urges, and this was the ground for his motions to dismiss the complaint, that the plaintiff, being a foreign corporation, was bound to allege in its complaint that it had complied with the provisions of section 181 of chapter 908 of the Laws of 1896, and that it had paid the license fee required by such act as a condition precedent to the maintenance of this action, and as the complaint has been dismissed, with costs, it is evident that this was the view taken by the learned court below.
The law is well settled, however, that under the circumstances disclosed by the evidence in this case, the plaintiff was not "carrying on its business" in this State within the meaning of the statute. It was a manufacturing corporation organized under the laws of the State of Ohio, and had its principal, and so far as the State of New York is concerned, its only office in Canton, Ohio. It employed an agent, who resided in the city of New York, who sold the goods in question under the provisions of the written contract, addressed to and accepted by the plaintiff in the State of Ohio, and under the authorities this was not "carrying on its business" in the sense that that phrase is used in the statute cited. ( Crocker v. Muller, 40 Misc. Rep. 686; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138; Droege v. Ahrens Ott Mfg. Co., 163 N.Y. 466, 471, 472, and authorities there cited; Hargraves Mills v. Harden, 25 Misc Rep. 665; Cooper Manufacturing Co. v. Ferguson, 113 U.S. 727.) The plaintiff was not carrying on its business in this State in the sense contemplated by the statute, and as the complaint appears to have been dismissed upon an erroneous theory, the judgment cannot stand.
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.