Opinion
December 8, 1966
Appeal from the Oneida Special Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Order unanimously affirmed, with costs. Memorandum: Defendants appeal from a denial of their motion to dismiss the complaint by reason of lack of capacity of plaintiff to sue (Business Corporation Law, § 1312, subd. [a]). The only question presented is whether plaintiff, an Indiana corporation unauthorized to do business in New York, was doing sufficient business so as to fall within the restriction of subdivision (a) of section 1312. Special Term correctly determined that the extent of plaintiff's business carried on in New York State was not substantial enough to affect its capacity to sue. The memorandum decision of Special Term contains certain data and facts which the court states were secured from plaintiff's attorneys after argument of the motion. Defendants quite properly challenge this "ex parte and private manner" used by the court. In affirming the order we have not considered this data for it is clearly outside the record.