Opinion
October, 1898.
Dill, Seymour Kellogg, for appellant.
H.B. Wesselman, for respondent.
The motion to set aside the warrant of attachment was made on the original papers upon which the attachment was granted. The averments, contained in the affidavits and papers, upon which the attachment was issued, as well as the fair inferences to be drawn therefrom, are to be deemed to be true, for the purposes of the motion. See Phillips v. Wortendyke, 31 Hun, 192; Condouris v. Turkish Co., 3 Misc. 66. The papers aver that plaintiff is a foreign corporation, doing business in this state, and has complied with all the requirements of sections 15 and 16 of chapter 687 of the Laws of 1892, and that it has complied with all the requirements of law to authorize it to do business in the state of New York; that defendant is a foreign corporation; and that the parties entered into a contract, by which plaintiff was to manufacture for defendant and sell, furnish and deliver to defendant a freight elevator; and that defendant broke the contract by refusing to purchase said elevator or pay the sum agreed upon.
Section 181 of chapter 908 of the Laws of 1896 provides as follows: " Every foreign corporation, joint-stock company or association, except banking, fire, marine, casualty and life insurance companies, and corporations wholly engaged in carrying on manufactures in this state, co-operative fraternal insurance companies and building and loan associations, authorized to do business under the general corporation law, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises, or carrying on its business in such corporate or organized capacity, in this state, to be computed upon the basis of the capital stock employed by it within this state during the first year of carrying on its business in this state. No action shall be maintained, or recovery had, in any of the courts in this state by such foreign corporation, without obtaining a receipt for the license fee hereby imposed, within thirteen months after beginning such business within the state."
There is no allegation in the attachment papers to show whether, or not, plaintiff had complied with the requirements of this statute; or whether, or not, it came within the exceptions specified in the statute; or whether, or not, the thirteen-months' limit had passed since plaintiff commenced to do business within this state. After a careful examination of the affidavit and complaint, we cannot agree with the General Term in their statement that "the affidavit, on which the attachment was granted, shows affirmatively, that the first business done by plaintiff in this state was the contract which is the subject of the cause of action herein, which was made on November 24, 1896. The attachment was issued, and this action commenced, about November 15, 1897, which was within the thirteen months after plaintiff had begun business within the state, as provided by said statute, and plaintiff was, therefore, not liable to pay said tax at that time."
We can find no such allegation in the papers, and the conclusion based thereon by the learned General Term cannot, therefore, be sustained. It appears from the papers, upon which the attachment was granted, that the plaintiff was organized about eighteen months before the granting of the attachment, and had its principal place of business at No. 31 Tenth avenue, New York city; and certainly we cannot draw any inference to the effect that it remained without doing any business for about five months, or that it waited that length of time before commencing to do business in this state.
The learned General Term was of opinion that the allegation that plaintiff has complied with all the requirements of law of this state, to authorize it to do business therein, was prima facie sufficient to entitle plaintiff to maintain the action, and that it was incumbent on defendant to controvert the allegation of fact. We cannot concur in this view. The prohibition contained in the statute is not directed against doing business, but is specially and specifically directed against maintaining an action in any of the courts of this state. This allegation clearly had reference to the Corporation Law of 1892, and not to the Tax Law under consideration.
As it definitely appears that plaintiff made and sold elevators, the only exception, specified in the statute, under which plaintiff could, in any way, claim to come, would be that applying to "corporations wholly engaged in carrying on manufactures in this state." As we have already said, there is no allegation that plaintiff is, or is not, a corporation wholly engaged in carrying on manufactures in this state; nor can a fair inference, one way or the other, be drawn with any satisfactory degree of certainty. There is nothing, upon which we can base a conclusion that plaintiff comes under any of the exceptions of the statute.
The rule governing this case is well settled in this department. In Sawyer Lumber Co. v. Bussell, 84 Hun, 114, the court held that, in order to sustain attachments, all facts relating to the jurisdiction of the court, or right of the plaintiff to maintain the action, must be affirmatively set forth in the motion papers, and a defect in this respect is fatal to the attachment. If a statute, as a preliminary to jurisdiction, or to plaintiff's right to maintain the action, requires certain facts to exist, such facts cannot be presumed. The papers, upon which a foreign corporation, doing business in this state, in relation to a transaction arising in such state, procures an attachment, must show, for the purposes of the attachment, that the corporation has complied with the provisions of the statute; and if such fact does not appear in the papers, upon which the warrant of attachment was granted, the omission of such allegation therefrom is legal cause for vacating the warrant of attachment.
Again, in the case of Ladenburg v. Commercial Bank, 87 Hun, 269, it is held that, unless jurisdictional facts appear in the papers, upon which the attachment is granted, the attachment must be set aside; as it is the plain meaning of the Code that it must appear by affidavit, to the satisfaction of the judge granting the warrant of attachment, that a cause of action exists of which the court has jurisdiction. Ordinarily, jurisdiction in a court of general jurisdiction need not be alleged, but where the provisions of the law are that the court shall have jurisdiction of a certain class of cases only where certain facts exist, it is necessary to allege, in order to show that a cause of action exists, that the facts essential to such jurisdiction are present.
This rule that no presumptions are to be relied upon, to sustain an attachment, is fortified by the principle that, in sustaining attachments, strict construction of the statutes and the affidavits is required in favor of the person against whose property the attachment is obtained. See Penoyar v. Kelsey, 150 N.Y. 77.
With regard to the suggestion that plaintiff may have come within one of the exceptions of the statute, we may further point out that the statute in question provides that every foreign corporation shall be debarred from maintaining an action, without obtaining the receipt referred to, except certain specified corporations; and, as plaintiff alleges that it is a foreign corporation, it ought also to have shown either that it came within one of the exceptions specified in the statute; or that it had not been doing business in this state for so long a period as thirteen months prior to the time of the application for the attachment and commencement of the action, and, consequently, that its time had not expired; or it should have shown that it had complied with the requirements of the statute, and obtained the receipt.
We do not see that the cases of People v. Roberts, 29 A.D. 585; Lukens Iron S. Co. v. Payne, 13 id. 11; O'Reilly Co. v. Greene, 18 Misc. 424; Galligan v. Groten, 18 id. 428; 76 N.Y. St. Repr. 22; Bondy v. Collier, 13 Misc. 15; Wright v. Brown, 67 N.Y. 1; Romeo v. Garofalo, 25 A.D. 191, and Liddell v. Paton, 67 N.C. 393, apply to the facts presented in the case at bar.
As we have reached the conclusion that the order should be reversed for the reasons above set forth, it is unnecessary to discuss the other questions raised upon the appeal.
The order of the General Term is reversed, with $10 costs and disbursements, and the order of the Special Term affirmed.
BEEKMAN, P.J., and GIEGERICH, J., concur.
Order of General Term reversed, with $10 costs, and order of Special Term affirmed.