Charles Roome Parmele Co. v. Hass

• Decision Date: 27 June 1902
• Parties: CHARLES ROOME PARMELE CO. v. HASS.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 579

64 N.E. 440

CHARLES ROOME PARMELE CO.

v.HASS.

Court of Appeals of New York.

June 27, 1902.

Appeal from supreme court, appellate division, First department.

Action by the Charles Roome Parmele Company against Joseph A. Haas. From an order of the appellate division (73 N. Y. Supp. 986) reversing an order of the special term denying a motion to vacate an order of arrest, plaintiff appeals. Reversed.

Joseph J. Baker and Arthur A. Michell, for appellant.

Stillman F. Kneeland, for respondent.

O'BRIEN, J.

The order appealed from reversed an order of the special term which denied the defendant's motion to vacate an order of arrest, and granted the motion. It is stated in the order that the reversal was upon matters of law and not of discretion. The court allowed an appeal to this court and certified the following question: ‘Upon an application by a foreign corporation doing business in this state for an order of arrest, must the papers show, for the purpose of the order of arrest, that the corporation has complied with the provisions of section 181 of chapter 908 of the Laws of 1896, or that it comes within the exceptions thereto?’ The order of arrest was granted upon the complaint in the action and an affidavit. The complaint avers that the plaintiff is a foreign corporation, engaged in business in this state, and that it had procured from the secretary of state a certificate that it has complied with all requirements of law to authorize it to do business in this state as provided by section 15 of the general corporation law. It then alleges that the defendant, at the time and place stated therein, took and stole from the plaintiff certain gold bars of the value of over $5,000, which he fraudulently converted to his own use. Clearly, this is a cause of action for which the defendant might be arrested and held to bail. It appears that, by section 181 of chapter 908 of the Laws of 1896, additional restrictions were imposed upon the right of certain foreign corporations, of which the plaintiff is one, to do business in this state. It was for a failure to allege affirmatively that the plaintiff has complied with these restrictions that the learned court below held that the papers upon which the order was granted were insufficient. That statute provides, in substance, that the plaintiff shall pay to the state a license fee for the right to do business of oneeighth of 1 per cent. on the capital stock employed in this state, and then provides that no action shall be maintained or recovery had by such corporation without obtaining the receipt for the license fee so imposed within 13 months after the beginning such business within the state. It is assumed that the statement in the complaint referred to is not broad enough to show compliance with this law, and we will so assume.

But we do not think that the complaint is defective for that reason. It states a good cause of action, and we would have to so hold upon a demurrer. Before these statutes were passed, the plaintiff could maintain this action under general provisions of law containing no restrictions whatever of the character referred to. The statutes in themselves give no right of action, and are not essential elements of the cause of action stated in the complaint. They are mere revenue regulations, compliance with which is made necessary in order to acquire the right to do business here and to enforce causes of action in our courts. They may possibly be matters of defense, but not essential to be stated as part of the cause of action or right to sue....