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Bischoff v. Automobile Touring Co.

97 A.D. 17 Court N.Y. App. Div. English

Delivered by Hirschbebg-, P. J.:

Contents

Majority

p. 17
Henry Bischoff, Respondent, v. Automobile Touring Company, Appellant.

Headnote

Negligence — use of a city street by an automobile belonging to a foreign corporation which has not the statutory certificate authorizing it to transact business in the State of New York — it does not constitute a nuisance or a trespass—the statute has no application to actions for toi't.
In an action brought to recover damages resulting from a collision on one of the public streets of the borough of Brooklyn between a truck belonging to the plaintiff's assignors and an automobile operated by and belonging to the defendant, a foreign corporation, the fact that the defendant has failed to pro
p. 18
cure the statutory certificate authorizing it to do business in the State of New York, prescribed by chapter 687 of the Laws of 1892, as amended b.y chapter 538 of the Laws of 1901, does not constitute the defendant’s use of the public street a nuisance or a trespass, or prevent it from availing itself of contributory negligence on the part of the plaintiff as a defense to the action.
The failure of a foreign corporation to procure the statutory certificate only operates to prevent it from maintaining any action in the State of New York . upon contracts made by it, and has no application to an action for tort against such corporation.
Appeal by the defendant, the Automobile Touring Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 18th day of March, 1904.
Richard L. Sweezy, for the appellant.
Ira Leo Bamberger, for the respondent.

The action is for damages resulting from a collision on one of the public streets of Brooklyn between a truck belonging to plaintiff’s assignors and an automobile operated by or belonging to the defendant. The defendant is a foreign corporation, and the plaintiff was permitted to prove against the defendant’^ objection that it had no certificate from the Secretary of State authorizing it tó do business in this State, as provided by section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd. by Laws of 1901, chap. 538). The object of this evidence, as appears by the brief of the learned counsel for the respondent, was to -establish that the defendant was a trespasser, and entitled only to the protection accorded to such in the law of negligence cases. Its reception was error. The penalty provided by the statute for foreign corporations doing business -in this State without a certificate is a prohibition against the maintenance of any action in this State upon any contract made by such a corporation in this State unless prior to the making of such contract the certificate has been procured. The use of the public streets or highways in the State by foreign corporations to which no certificate has been issued does not constitute a nuisance or involve the commission of a trespass; and such corporations when sued for negligence are entitled to avail themselves of contributory negligence

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on the part of the plaintiff as a defense. In other words, the statutory requirement which is made a. condition precedent to the maintenance of an action upon contract by a foreign corporation has no application to an action against such corporation for tort. A violation of a statute does not necessarily place the offender beyond the protection of the law. (Carroll v. Staten Island R. R. Co., 58 N. Y. 126 ; Wood v. Erie Railway Company, 72 id. 196 ; Platz v. City of Cohoes, 89 id. 219 ; Tebo v. Jordan, 147 id. 387, 392.)

The judgment should be reversed and a new trial ordered.

All concurred.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.

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