International Petroleum Co. v. Mexican Sinclair Petroleum Co.

Headnote

Pleading — action for fraud and deceit ■ — • defense that plaintiff, a foreign corporation, had failed to pay the license fee as required by section 181 of Tax Law.

International Petroleum Co. v. Mexican Sinclair Petroleum Co., 208 App. Div. 704 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 7, 1923, which unanimously affirmed an order of Special Term granting plaintiff’s motion to strike out the second defense contained in the answer as insufficient in law upon the face thereof. The complaint set forth a cause of action for

fraud and deceit. The second defense was based on section 181 of the Tax Law, which provides for the fixing, for the purposes of taxation, of the amount of capital stock employed by a foreign corporation in this state, and for the payment by a foreign corporation of the tax thus fixed, and further that “ No action shall be maintained, or recovery had, in any of the courts in this state by such foreign corporation after thirteen months from the time of beginning such business within the state, without obtaining a receipt for the payment of the license fee upon the capital stock employed,” etc.

The following question was certified:

“ Do the facts set forth in the second defense in defendant’s answer (paragraphs ' eighth ’ to ' twelfth,’ inclusive) state a good and sufficient defense to the cause of action alleged in the complaint? ”