Hyperlawhypertext legal database Western National Bank v. Kelly 95 N.Y.S. 574

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Western National Bank v. Kelly

95 N.Y.S. 574 Court N.Y. App. Term Decision date 1905-11-03 English

Delivered by FITZGERALD, J.

Contents

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p. 574
(48 Misc. Rep. 366.)
WESTERN NAT. BANK OF LOUISVILLE v. KELLY.
(Supreme Court, Appellate Term.
November 3, 1905.)

Headnote

1. Cobpobations—Filing Certificate by Foreign Corporation—Doing
Business—Bringing Action.
Bringing an action is not doing business, within Banking Law, Laws 1802, p. 1861, c. 689, § 31, providing that no foreign corporation incorporated for carrying on the business specified in article 5 shall transact business in the state without a certificate from the Superintendent of Banks.
[Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, § 2527.]
2. Same—Right to Sue.
Right of a foreign corporation to sue, under Code Civ. Proc. § 1779, providing that an action may be maintained by a foreign corporation in like manner and subject to the same regulations as by a domestic corporation, is not limited by Municipal Court Act, Laws 1902, p. 1489, c. 580, § 1, snbd. 18, extending jurisdiction to actions “against” foreign corporations having an office in New York City.
[Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 2544, 2563-2567.]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action hy the Western National Bank of Louisville against Thomas Kelly. From a judgment for defendant, plaintiff appeals.
Reversed.
Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.
Floyd & Leary, for appellant.
Thomas R. Lane, for respondent.

Plaintiff, a foreign corporation, instituted this action upon a promissory note claimed to have been given by the defendant to L. Oppenheimer & Co. and transferred to it for value. Complaint was dismissed upon the grounds that it was not shown that plaintiff had an office for the transaction of business in the city of New York, nor that the certificate required by section 31 of the banldng law (Laws 1892, p. 1861, c. 689) had been filed.

In Citizens’ Bank v. Cowles, 89 App. Div. 281 , 86 N. Y. Supp. 38 , it was directly held “that the mere bringing of an action to recover a sum of money upon a negotiable instrument is not doing business within this state”; and, although this case was reversed upon another point in the Court of Appeals, the court did not disapprove the proposition above cited. 180 N. Y. 346 , 73 N. E. 33 . Section 1779, Code Civ. Proc., provides that:

“An action may be maintained by a foreign corporation in like manner and subject to the same regulations as where the action is brought by a domestic corporation.”

The extension of jurisdiction to actions against foreign corporations having an-office in the city of New York, conferred by section 1 of subdivision 18 of the municipal court act (Laws 1902, p. 1489, c. 580), cannot well be twisted into a limitation of former rights, but confers additional power. It does not limit, alter, or affect former jurisdiction, ex

p. 575
cept to the extent expressly enacted. Parmele v. Haas, 67 App. Div. 457 , 73 N. Y. Supp. 986 , was reversed by the Court of Appeals ( 171 N. Y. 579 , 64 N. E. 440 ) upon the very point upon which it is cited to sustain the judgment herein.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

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