National Park Bank v. Gunst

Headnote

Security eor Costs.—National Bank.

A national bank, organized under the act of Congress, is a foreign corporation within the statute of security for costs.

Motion to compel plaintiff to file security for costs.

The National Park Bank of the city of New York, brought this action against Charles A. Gunst.

I. Plaintiff is a foreign corporation, incorporated and existing by virtue of the National Banking Act, and not by or under any statute of this State (U. S. Rev. Stat. title 62, p. 998).

II. A foreign corporation created by the laws of “ any other State or country,” can, upon giving security for costs, prosecute in the courts of this State, the same as corporations created under the laws of this State (2 N. Y. Rev. Stat. 477, Edm. Ed.), and the national banks are created by the laws of another “ State.”

' IIL A national bank is a foreign corporation within section227 of the Code, respecting the remedy of attachment against foreign corporations (Bowen v. First National Bank of Medina, 34 How. Pr. 409 ).

IV. The reason of the last case cited, applies equally to the point presented by this motion. In section 227 of the Code, the language is “ corporation created by or under the laws of any other State, government, or country,” and such corporation is in Code, § 229, called foreign.

V. Plaintiff was not created under the laws of this

ing with domestic corporations, it would not be com- „ pelled, upon the trial under this section, to prove its existence, except against a plea of defendant, in abatement, or in bar, that it is not a corporation at all; and judgment upon the answer as frivolous, in the cases cited, would have passed as matter of course. That the contrary was adjudged can only be because within the article of the Revised Statutes under review, the bank is foreign, and not domestic. Its locality may be here; but whether foreign or domestic, depends upon the law of its creation, and not the place of its being. Many of the steamship lines, for instance, incorporated in Great Britain, are as much localized here, and have here property and interests as large as the national banks, yet no one disputes their “foreign” character, nor that in suing in our courts, they must first file security.

VII. 2 R. S. 457, § 1, seems to require the filing of security as a condition precedent to the commencement of the action. The authorities, however, allow it to be' done subsequently, upon payment of costs (Bank of Michigan v. Jessup, 19 Wend. 10 ; 1 Wait Pr. 100).