Opinion
January, 1921.
Present — Clarke, P.J., Dowling, Smith, Page and Greenbaum, JJ.
The motion for leave to go to the Court of Appeals should be granted. The question involved is one of statutory construction and one of considerable importance, as bearing upon the right of a foreign corporation sued in this State to assert a counterclaim without having paid the license fee as prescribed in section 181 of the Tax Law. In the opinion rendered upon the reversal of the order [ 194 App. Div. 164], reference was made to the case of Alsing Co. v. New England Quartz Co. ( 66 App. Div. 473) and it was stated that what was said in the opinion in that case as to the interpretation of this provision cannot be deemed to be controlling because in that case the remarks were purely obiter, inasmuch as the action there brought was brought before the passage of the act of 1895. This statement was inadvertently made. That part of the opinion in the Alsing case referred to was obiter, not because the action there brought was brought before the passage of the act of 1895, but because the right to interpose a counterclaim in that action was challenged only under the act of 1892 for failure to file a certificate from the Secretary of State authorizing the corporation to do business within the State. Motion granted and questions certified.
Motion so far as to grant leave to appeal to Court of Appeals granted; questions certified.