Opinion
July, 1904.
Richard L. Sweezy, for the appellant.
Ira Leo Bamberger, for the respondent.
The action is for damages resulting from a collision on one of the public streets of Brooklyn between a truck belonging to plaintiff's assignors and an automobile operated by or belonging to the defendant. The defendant is a foreign corporation, and the plaintiff was permitted to prove against the defendant's objection that it had no certificate from the Secretary of State authorizing it to do business in this State, as provided by section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd. by Laws of 1901, chap. 538). The object of this evidence, as appears by the brief of the learned counsel for the respondent, was to establish that the defendant was a trespasser, and entitled only to the protection accorded to such in the law of negligence cases. Its reception was error. The penalty provided by the statute for foreign corporations doing business in this State without a certificate is a prohibition against the maintenance of any action in this State upon any contract made by such a corporation in this State unless prior to the making of such contract the certificate has been procured. The use of the public streets or highways in the State by foreign corporations to which no certificate has been issued does not constitute a nuisance or involve the commission of a trespass; and such corporations when sued for negligence are entitled to avail themselves of contributory negligence on the part of the plaintiff as a defense. In other words, the statutory requirement which is made a condition precedent to the maintenance of an action upon contract by a foreign corporation has no application to an action against such corporation for tort. A violation of a statute does not necessarily place the offender beyond the protection of the law. ( Carroll v. Staten Island R.R. Co., 58 N.Y. 126; Wood v. Erie Railway Company, 72 id. 196; Platz v. City of Cohoes, 89 id. 219; Tebo v. Jordan, 147 id. 387, 392.)
The judgment should be reversed and a new trial ordered.
All concurred.
Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.