Opinion
March, 1910.
Ver Planck, Prince Flanders, for motion.
Putney, Twombly Putney, opposed.
Action is for rent of premises in this city. Defendant demurs in effect on the ground that it appears on the face of the complaint that plaintiff is a foreign corporation doing business in this State and suing on a contract made in this State without having obtained the certificate required by section 15 of the General Corporation Law. Plaintiff moves for judgment on the pleadings. The only fact pleaded from which it might be inferred that the plaintiff is doing business in this State is the statement that plaintiff leased to defendant certain premises in this city. I think the statute intended to refer only to the doing of the regular and customary business for which the corporation was organized. Union Trust Co. v. Sickels, 125 A.D. 105; Commercial Coal Iron Co. v. Polhemus, 128 id. 247. Investment in real estate in the State which is leased is an independent investment, in no sense employed within the State in the transaction of ordinary business. People ex rel. Singer Co. v. Wemple, 150 N.Y. 46; People ex rel. Niagara River H. Co. v. Roberts, 157 id. 676. Of course, if the foreign company is organized for the immediate purpose of taking title or leasing land a different question would be presented (People ex rel. Wall Hanover St. R. Co. v. Miller, 181 N.Y. 328), but in this case such fact does not appear on the face of the complaint. The foreign corporation may be presumed to be a stock corporation (Portland Co., v. Hall Grant Const. Co., 123 A.D. 495), but it cannot be presumed that because it is a foreign stock corporation it is doing business in this State. The statute in question reads not only "foreign stock corporation" but "foreign stock corporation doing business in this State," and, as above stated, the mere owning and leasing of real estate in this State held for investment is not necessarily doing business in this State, and that is the only fact which can be inferred from the complaint. The recent cases in the Court of Appeals (Wood Sellick v. Ball, 190 N.Y. 217; South Bay Co. v. Howey, Id. 240, etc.) all refer to corporations actually doing business in this State. I do not think that every foreign stock corporation which sues on a contract made here must be presumed to be doing business in the State, especially when it has been held that the holding of real estate for investment does not mean that it is carrying on business within the meaning of our laws.
Motion granted with costs.