
    National Merchandising Corp., Plaintiff, v. William D. Powers, Defendant.
    Supreme Court, Special Term, Onondaga County,
    December 6, 1957.
    
      Charles B. Rinaldo for defendant.
    
      Gray, Norem, Van Lengen £ Van Lengen for plaintiff.
   Frank Del Vecchio, J.

This is a motion under rule 106 of the Buies of Civil Practice to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

It appears from the complaint that plaintiff is a foreign corporation and it was admitted on the argument of the motion that it has not obtained a certificate of authority to do business in this State.

In view of these facts, defendant asserts that the complaint is insufficient because of the following provision of the General Corporation Law (§ 218): “A foreign corporation, other than a moneyed corporation, doing business in this state shall not maintain any action in this state upon any contract made by it in this state, unless before the making of such contract it shall have obtained a certificate of authority.”

It is well settled that, if it appears upon the face of the complaint that the plaintiff is a foreign corporation, other than a moneyed corporation, doing business in this State and that the contract which is the basis of the action was made within the State, then the complaint is demurrable and subject to a motion to dismiss for failure to state a cause of action. (Welsbaeh Co. v. Norwich Gas £ Elec. Co., 180 N. Y. 533; Wood £ Seliclc v. Ball, 190 N. Y. 217; Maple Motor Co. v. Beales, 110 N. Y. S. 2d 623.) If these facts do not appear in the complaint, however, there is no necessity to plead possession of a certificate of authority and a motion to dismiss for failure so to allege, made before trial of the action, must be denied. “ In such case, until the contrary is shown, it must be presumed that the contract was not made within this State and that the corporation is not doing business here.” (Acorn Brass Mfg. Co. v. Ruten-  