Hyperlawhypertext legal database F. A. Kennedy Co. v. McCormack 3 N.Y.S. 214

← Cases

F. A. Kennedy Co. v. McCormack

3 N.Y.S. 214 Court N.Y. City Ct. Decision date 1888-10-08 English

Delivered by McAdams, C. J.

Contents

Majority

p. 214
F. A. Kennedy Co. v. McCormack.
(City Court of New York, Special Term.
October 8, 1888.)

Headnote

Costs—Security for—Non-Residents—Foreign Corporations.
Code Civil Proc. N. Y. § 8160, which provides that a plaintiff in the city court “who has an office for the regular transaction of business in person within the city of New York, is deemed a resident of that city within the meaning of” the statute-in reference to security for costs, does not apply to a foreign corporation having, a place of business in that city, and such corporation, on bringing an action, is properly required to give security for costs.
Action by the F. A. Kennedy Company, a foreign corporation, against Bernard J. McCormack. Motion to vacate order requiring plaintiff to file security for costs.
Arthur Murphy, for motion. Freeman <6 Green, contra,

Section 3160 of the Code, which provides that “a plaintiff in an action brought in the (city) court, who has an office for the regular transaction of business ‘ in person ’ within the city of New York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of the act, ” in reference to security for costs, does not apply to a foreign corporation having a place of business in this city. A corporation can transact business only through agents, and cannot in any case be said to transact- it “in person.” This is particularly so with a foreign corporation, which cannot migrate, but must live and have its being in the place of its creation. Section 3160 was evidently intended to apply to natural, and not to artificial, persons,—to those who do business “in person, ” not to those who necessarily do it through agents. The distinction is not subtle, but obvious. It is observable in section 3268, which treats of “foreign corporations” as well as “persons residing without the state, ”— a useless duplication of terms, if these phrases are to be held to mean one and-the same thing. The order requiring the plaintiff to file security for costs was properly made, and the motion to vacate it must be denied,, but without costs.