South Bay Company v. . Howey

Chase, J. The respondent has not asked that this appeal be dismissed, or made any objection to its being heard in this court upon the merits. During the consultations among the members of the court it has been suggested that the appeal cannot be heard in this court without a case prepared and settled by or under the direction of the court below and annexed to the judgment roll “ containing a concise statement of the facts, of the questions of law arising thereupon, and of the determination of those questions by the Appellate Division.” Such a case must be prepared and settled and a certified copy thereof transmitted to the Court of Appeals instead of the case upon which the judgment of the court below was rendered when a verdict is rendered in the trial court subject to the opinion of the Appellate Division. (Code Civil Procedure, sec. 1339.) The only authority for directing a jury to render a verdict subject to the opinion of the court is found in section 1185 of the-Code of Civil Procedure, which provides: “ Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict, subject to the opinion of the court.” That section also provides: “Notwithstanding that such a verdict has been rendered, the judge holding the trial term may, at the same term, set aside the verdict, and direct judgment to *245 be entered for either party, with like effect ánd in like manner, as if such a direction had been given at the trial.” A motion for judgment upon a verdict subject to the opinion of the court may be made by either party, and must be heard and decided at a term of the Appellate Division of the Supreme Court. (Code Civil Procedure, sec. 1234.) In such a case the practice prescribed by said section 1339 must be followed or the appeal will be dismissed. (People v. Featherly, 131 N. Y. 597; Cowenhoven v. Ball, 118 N. Y. 231; Jaycox v. Cameron, 49 N. Y. 645.) The verdict in this case was not rendered subject to the opinion of the court. Even the application to have the defendant’s exceptions heard in the first instance in the Appellate Division of the Supreme Court, pursuant to section 1000 of the Code of Civil Procedure, was denied. After the verdict was rendered a motion was made pursuant to and upon the grounds stated in section 999 of the Code of Civil Procedure, which motion was entertained, and the decision thereof was subsequently announced by the trial judge in a formal opinion. By the express language of said section 999, it was necessary that the appeal taken from the order made upon the motion be heard upon a case prepared and settled in the usual manner. Such a case was prepared and settled in the usual manner. The appeal from the order setting aside the verdict was heard thereon. The appeal to this court is from the judgment entered upon the verdict pursuant to the order of the Appellate Division reversing the order setting aside the verdict and denying the motion to set the same aside. (Code Civil Procedure, sec. 1336.) The appeal should not be dismissed. The constitutional and statutory limitation of the jurisdiction of this court to the review of questions of law does not prevent this court from an examination of the record to ascertain whether the verdict rendered is contrary to law. The statutes of this state prescribe in detail what must be done to organizo a domestic corporation. They direct the filing of certain papers and the paying of certain taxes and fees, The firticles of incorporation become a matter of public *246 record and the rights, duties and powers of the corporation thus formed, and the obligations of its officers and directors, are all defined by our statutes. There are also certain requirements of law which must be complied with before a foreign corporation is authorized to do business in this state. It is provided by section 15 of the General Corporation Law: “No foreign stock corporation other than a monied corporation, shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the recpiirements of law to authorize it to do business in this state, and that the business of the corporation to be carried on in this state is such as may be lawfully carried on by a corporation incorporated under the laws of chis state for such or similar business, * It is provided by section 16 of the General Corporation Law that “ Before granting such certificate the secretary of state shall require every such foreign corporation to file in his office a sworn copy in the English language of its charter or certificate of incorporation, and a statement under its corporate seal, particularly setting forth the business or objects of the corporation which it is engaged in carrying on or which it proposes to carry on within the state, and a place within the state which is to be its principal place of business, and designating, in the manner prescribed in the Code of Civil Procedure, a person upon whom process against the corporation may be served within the state. * * * ” After a foreign corporation is authorized to do business within this state it is required to make an annual report the same as a domestic stock corporation (Stock Corporation Law, sec. 30), and it is subject to our laws and to service of process in this state. It is also provided by said section 15 of the General Corporation Law that “ No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state unless prior to the making of such contract it shall have procured such certificate.” The plaintiff has not procured such certificate. If, there *247 fore, it is a foreign stock corporation doing business in this state, and the contract of insurance is a contract made by it in this state, it cannot maintain this action. It is not an answer to the position of the defendant to say that his defense is technical because if the plaintiff comes within the provisions of the statutes quoted the defense is interposed in accordance with the express policy of this state. Foreign corporations doing business in this state should comply with the laws of this state. As we have seen, it is alleged in the complaint that the plaintiff is engaged in the business of manufacturing and dealing in fish fertilizer in this state. It appears further from the record that the plaintiff maintains but a nominal office in Hew Jersey at the house of its president. Its capital is invested in its plant and manufacturing business at Fire Island Beach, in this state, and had been so invested for about a year prior to the making of the contrast of insurance. The business of the plaintiff other than that done at the factory is done in part at the office of the president of the corporation, in the city of Hew York, and in part at the office of the treasurer of the corporation, which is also in the city of' Hew York. The letter paper of the plaintiff bears the name “ South- Bay Company, Treasurer’s Office, Ho. 138 Front Street, Hew York.” That the plaintiff is a stock corporation is shown beyond controversy by the nature and character of its business. The plaintiff could not have been organized to do the business in which it is engaged under either article of the Membership Corporations Law. It is provided by section 30 of the Membership Corporations Law (L. 1895,chap. 559), that “A membership corporation may be created under this article (Art. 2) for any lawful purpose, except a purpose for which a corporation may be created under any other article of this chapter, or any other general law than this chapter.” The plaintiff could have been incorporated in this state as a stock corporation and it could not have been incorporated in this state for manufacturing purposes under the Membership Corporations Law. It will be assumed that its incorporation in another state was for the purpose of exercising the rights and performing the work in *248 which it was engaged for pecuniary profit. It appears from the complaint and also from the record of the trial that the policy of insurance was headed “Home Office, Hew York City,” and the attestation clause recites that it was subscribed “ at the City of Hew York.” There is nothing in the record to overcome the presumption that the contract' of insurance was delivered in the city of Hew York. The contract of insurance covered the real and personal property constituting the plant upon and with which the plaintiff 231'osecute(l its ordinary business, and such contract of insurance was incidental to and a 2iart of the plaintiff’s doing business in this state. As the 2>laintiff is doing business in this state it cannot "maintain any action íyi this state upon any contract made by it in this state unless prior to the making of such contract it shall have procured such certifícate.” The judgment should be reversed and a new trial granted, with costs to abide the event.