
    The Warner Instrument Company, Respondent, v. Philip K. Sweet, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Sales — Remedies of seller — Action for price — Variances.
    Foreign corporations — Actions and proceedings — Issues and proof — Authority to transact business in this State.
    In an action by a foreign corporation for the price of goods alleged to have been sold and delivered to the defendant in Wisconsin, proof of a sale in New York does not sustain the allegations of the complaint; nor does such proof establish a cause of action against the defendant, without proof of the plaintiff’s authority to transact business in this State.
    Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.
    Thompson & Ballantine, for appellant.
    Adolph M. Schwarz, for respondent.
   Lehman, J,

The plaintiff, a foreign corporation, claims upon an implied promise for goods alleged to have been delivered in Beloit, Wis. At the trial the proof showed that the goods were sold and delivered in ¡New York and not in Beloit, and the defendant moved for a dismissal of the complaint. The motion should have been granted. The place where the alleged contract was made is not an immaterial allegation. Where a foreign corporation is doing business in the State of ¡New York and sues upon a contract made in the State of Hew York, compliance with section 15 of the General Corporation Law is part of the cause of action. Wood & Selick v.Ball, 190 N. Y. 217. The defendant had a right to raise the issue whether the corporation was doing business in the State and whether the General Corporation Law was complied with, and he was deprived of this right by the form in which this action was brought. Moreover, even if the point of variance between the allegations and the proof should be disregarded, the plaintiff must still be held to proof of some cause of action. It has shown that it is a foreign corporation - that it sold and delivered goods in New York, and that it maintained personal representatives in New York, apparently with an office for the transaction of business. It has itself, it seems to me, made a prima facie case that it does business within this State, and therefore its proof failed to show a cause of action without further proof of compliance with our statute.

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

Gildersleeve and Seabury, JJ., concur.

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