
    Alpha Portland Cement Company, Appellant, v. Schratwieser Fireproof Construction Company, Respondent.
    Second Department,
    October 6, 1911.
    Pleading — action by foreign corporation — failure to allege authority to do business in this State.
    It is error to dismiss the complaint, before evidence is taken, in an action on a promissory note brought by a foreign corporation against a domestic corporation on the ground that there is no allegation that the plaintiff was authorized to do business in this State within the provisions of section 15. of the General Corporation Law, although the note set forth was payable at a bank in this State, if there be no allegation of the time . and place of its delivery, the consideration, or where the transaction out of which it arose took place, or that the plaintiff is doing business in this State or has any office therein.
    
      There is nothing on the face of such complaint to warrant the presumption that plaintiff was doing business in this State, and until such fact appears in some form a dismissal of the complaint is unauthorized.
    Appeal by the plaintiff, the Alpha; Portland Cement Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of April, 1911, dismissing the complaint.
    
      Louis H. Porter [William C. Dodge with him on the brief], for the appellant.
    
      George E. Miner, fof the respondent.
   Rich, J.:

This appeal is from a judgment of the Municipal Court dismissing the plaintiff’s complaint before the cause was opened or any evidence given upon the ground that it contained no allegation that the plaintiff had. complied with the provisions of section 15 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28) by procuring the certificate authorizing it to do business in this State, and that because of such omissidn the complaint did not state facts sufficient to constitute a cause of action.

The plaintiff’s cause of action is upon a promissory note in the usual form, dated at Brooklyn in this State. The-complaint alleges that the plaintiff is a foreign corporation duly organized and existing under the laws of the State of New Jersey; that the defendant is a corporation organized and existing under the laws of the State of New York; that on the 21st day of December, 1910, the defendant executed the note which is set forth in full; that at maturity it was presented at the Brooklyn -Bank, where it was made payable, for payment; that plaintiff is still its owner; that no part thereof has been paid; and that $296.35 is due and unpaid thereon. There is no allegation of the time and place of its delivery, what it was given for, where the transaction out of which it arose took place, or that the' ■plaintiff is doing business in this State or has any office therein. For all that appears on the face of the complaint a recovery was authorized without proof that plaintiff had'complied with, the statutory provision entitling it to transact business in this State. (Commercial Coal & Ice Co. v. Polhemus, Nos. 1 & 2, 128 App. Div. 247; Penn Collieries Co. v. McKeever, 183 N. Y. 98; Stone v. Penn Yan, K. P. & B. Railway, 197 id. 279; Vio Chemical Co. v. Studholme, 53 Misc. Rep. 470; Haddam Granite Co., Inc., v. Brooklyn Heights R. R. Co., 131 App. Div. 685; Union Trust Co. v. Sickels, 125 id. 105; New York TerraCotta Co. v. Williams, 102 id. 1; Rundle Spence Mfg. Co. v. Gainsborough C. Co., 123 N. Y. Supp. 785; Singer Mfg. Co. v. Granite Spring Water Co., 66 Misc. Rep. 595.) The complaint upon its face alleged a good cause of action. There was nothing before the trial court warranting the presumption that the plaintiff was doing business in this State, and until such fact appeared in some form the dismissal of the complaint was unauthorized. The court based his ruling upon Manufacturers’ Commercial Co. v. Blitz (131 App. Div. 17), but that decision rests upon the fact that the corporation was doing business in this State and that the contract sued upon was made here. It had an office in the city of New York at which the note sued on was made payable. The case is not an authority in favor of the contention here made. Nor does Wood & Selick v. Ball (190 N. Y. 217) aid the respondent, as in that case it. appeared from the complaint that the plaintiff was a foreign corporation having its principal office for the transaction of business in the city of New York,” and that the cause of action was for goods, wares and merchandise sold and delivered to defendant by plaintiff at Watertown, N. Y. In Welsbach Co. v. Norwich Gas & Electric Co. (96 App. Div. 52), which the Wood case followed, the complaint contained the same allegations, thus showing upon its face the existence of all of the conditions which under the . provisions of the statute made it obligatory upon the plaintiff, in order to allege a cause of action, to aver the procurement of the statutory certificate, and it follows that the dismissal of the complaint was reversible error. (St. Albans Beef Co. v. Aldridge, 112 App. Div. 803, 805.)

The "judgment of the Municipal Court should be reversed and a new trial ordered, with costs to abide the event.

Burr, Thomas, Carr and Woodward, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  