Pittsburg Plate Glass Co. v. Ravitch

Full title: THE PITTSBURG PLATE GLASS COMPANY, Respondent, v . DAVID RAVITCH et al.…

Court: Supreme Court, Appellate Term

Date published: Mar 1, 1908

58 Misc. 191 (N.Y. App. Term 1908)

108 N.Y.S. 1103

Opinion

March, 1908.

Nicholas S. Aleinikoff, for appellants.

Phillips Avery, for respondent.

MacLEAN, J.

In this action to recover for performance pursuant to a written contract with the defendants, the plaintiff, among other things, alleged that it was a foreign corporation and, as such, "prior to the times hereinafter mentioned, duly obtained from the Secretary of the State of New York, a certificate that plaintiff had complied with all the requirements of law to authorize it to do business in this State." This was denied. Such allegation is essential as a condition precedent (Wood Selick v. Ball, 190 N.Y. 217) and, being denied, an issue in the case. The motion to dismiss for failure of proof therefor at the close of the plaintiff's case should have been granted; and, though not specifically moved at the close of the whole case, the defendants were entitled to the direction of a verdict pursuant to motion, the plaintiff failing to prove its compliance with section 15 of the General Corporation Law, which "should be alleged and proved by a foreign corporation such as the plaintiff, in order to establish a cause of action in the courts of this State" (Wood Selick v. Ball, supra, 225), the record disclosing no admission thereof. The judgment should, therefore, be reversed and the cause remanded.

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

GILDERSLEEVE, J., concurs.

BISCHOFF, J. (concurring).

The motion for dismissal of the complaint, made upon the close of the plaintiff's case, for failure of proof of compliance with the provisions of section 15 of the General Corporation Law (Laws of 1892, chap. 687), should have been granted; and the error of its denial was curable only by proof of such compliance subsequently introduced by either party, of which there was none. Obviously, the mere statement of the plaintiff's counsel that counsel for the defendants had agreed to admit the fact of such compliance and to waive proof of it, made against the latter's insistence upon a ruling, did not have the effect of such proof or a waiver of it.

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

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