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F. A. Kennedy Co. v. McCormack

18 N.Y. St. Rep. 287 Court N.Y. City Ct. English

Delivered by McAdam, C. J.

Contents

Majority

p. 287
F. A. Kennedy Company v. Bernard J. McCormack.
(City Court of New York, Special Term,
Filed October, 1888.)

Headnote

Security for costs in city court of New York.
A foreign corporation having a place of business within the city of New York, is not deemed a resident of that city, constructively or otherwise, and it may be required to give security for costs.
Motion to vacate order for security for costs.
Arthur Murphy, for motion; Freeman & Green, opposed.

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

p. 288
“ foreign corporations” as well as “persons residing with-' out 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.