
    Woodridge Heights Construction Company, Respondent, v. Herman C. Gippert and Elizabeth Gippert, Appellants.
    (Supreme Court, Appellate Term, First Department,
    November, 1915.)
    Corporations — not necessary that foreign corporation maintain office in this state in order to transact business here — pleading — General Corporation Law.
    It is not necessary that a foreign corporation maintain, an office in this state in order to transact business here and to come within the prohibition of section 15 of the General Corporation Law.
    The complaint in an action by a foreign corporation to recover payments due upon a contract for the sale of real property situated in the state of New Jersey alleged that plaintiff. had an office at a certain street number in the city of New York. The contract which was made at an office maintained by the stockholders and directors of plaintiff at said street number provided that the deed should be delivered “ at the office of the vendor, 30 Church Street, New York City” and that all payments on the purchase price should be made in cash at the same place. It was also shown that plaintiff had made other contracts in the city of New York for the sale of its land. A motion to dismiss the complaint on the ground that plaintiff had not procured the certificate required by section 15 of the Stock Corporation Law was denied on the ground that it was not shown that plaintiff was doing business within this state within the meaning of said statute. Held, that the evidence was sufficient to show that the office in Church street was in fact though not in name an office of plaintiff, but that a judgment in favor of plaintiff should be reversed and the complaint dismissed.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered in favor of the plaintiff for $167, after trial by the court.
    
      Abraham Grenthal, for appellants.
    John L. Bernstein, for respondent.
   Page, J.

The plaintiff is a foreign corporation, existing under the laws of New Jersey. The complaint alleges that it has an office at No. 30 Church street, borough of Manhattan, city of New York. It is suing the defendants to recover payments due upon a contract for the sale of real property situated in the state of New Jersey. The testimony adduced on behalf of the plaintiff showed that the contract was made at an office maintained by the stockholder's and directors of the plaintiff at 30 Church street, New York city, and the contract itself which was placed in evidence by the plaintiff provided that the deed for the property should be delivered to the vendee “ at the office of the vendor, 30 Church Street, New York City,” and that all payments of installments of the purchase price should “ be made in cash to the vendor at its offices, 30 Church Street, New York City.” It was also shown that the plaintiff had made three other contracts in New York city for the sale of its land. The defendants moved to dismiss the complaint on the ground that the plaintiff was a foreign corporation doing business within this state and had not procured the certificate required by section 15 of the General Corporation Law. The court denied the motion on the ground that it was not shown that the plaintiff was doing business within this state within the meaning of the said statute. The learned trial justice relied upon evidence adduced by the plaintiff that the office at 30 Church street was not its office but that of its directors personally and that only a few contracts had been made by it in this state. While I think the evidence was sufficient to show that the office at 30 Church street was in fact, though not in name, an office of the plaintiff, it is not necessary that a foreign corporation maintain an office in this state in order to transact business here and to come within the prohibition of the statute. The fact that the plaintiff was transacting business within this state is undeniable when the very contract in suit provided for payment of monthly installments of the purchase price at the office of the plaintiff at 30 Church street, New York city, during a period of nearly four years. The respondent’s contention that the failure of defendants to plead and prove that plaintiff was a stock corporation was fatal to the defense is untenable. The plaintiff’s first witness testified that the office at 30 Church street was maintained by stockholders of the plaintiff company and we can presume that only stock corporations have stockholders. Furthermore it has been held that a foreign business corporation doing business within this state will be presumed to be a stock corporation if under the laws of this state it could not have been organized to do the business in which the corporation in question was engaged under the Membership Corporations Law. Portland Co. v. Hall & Grant Const. Co., 123 App. Div. 495; South Bay Co. v. Howey, 190 N. Y. 240.

The judgment appealed from should be reversed, with thirty dollars costs, and the complaint dismissed, with costs.

Bijttr and Shearn, JJ., concur.

Judgment reversed, with thirty dollars costs.  