Savage v. Atlanta Home Insurance

Hirschberg, J.: In the voluminous brief filed on behalf of the appellant, considerable space is devoted to the main point presented, viz., that the complaint should have been dismissed, because the insured, plaintiff’s assignor and a foreign corporation, liad not complied with the provisions of sections 15 and 16 of chapter 681 of the Laws of 1892, by procuring the certificate to do business in this State therein provided for, and had not complied with the provisions of section 1 of chapter 240 of the Laws of 1895, and of section 181 of chapter 90S of the Laws of 1896, by paying the license fee and obtaining the receipt and certificate of authority therein referred to. The learned trial justice reserved the consideration of the questions involved in this point until after the rendition of the verdict, and having then taken them under advisement with the aid of briefs submitted by the parties, decided that the plaintiff’s assignor had not done business in the State of New York within the meaning of the statutes, We think his conclusion in this respect was -correbt. The plaintiff’s assignor was a New Jersey corporation, and its business was confined to the running or the leasing by charter of t-lie steamboat which the defendant insured, and which was substantially all its property. It had no place of business in this State, no agent or representative here, and no contract in, or relating to, its specific business was ever made within the State. The steamboat did run during the naval parade accompanying Admiral Sampson’s fleet in August, 1898, but this was done by the captain, individually, under a charter party executed in New Jersey. The year before, the [22] vessel ran between New York and Bay Badge as a terminal ferry under a contract with the' Long Island Railroad Company and the Newark Traction Company. The statutes under consideration should not be construed as applicable to such an engagement, or they might violate the provision of the Federal Constitution/ conferring upon Congress the power to regulate Commerce among the States,.and the interstate commerce laws passed pursuant thereto. As was said by Judge O’Brien in People ex rel. S. C. O. Co. v. Wemple (131 N. Y. 64, 71): “ The property of a foreign corporation engaged in foreign or interstate commerce may be taxed equally with like property of a domestic corporation engaged in the same business, but a tax or other burden imposed upon the property of either corporation because it is used to carry on that commerce or upon the transportation of persons or property, or-for the navigation of the public waters over which the transportation is made, is invalid and void, as interference with and obstruction of the power of Congress in the regulation of commerce. (Gloucester Ferry Co. v. Penn., 114 U. S. 211.) ” The tax or burden imposed by the statutes under consideration upon foreign corporations is laid, not upon their property, but upon their business and cannot be lawfully imposed upon the business of interstate commerce or transportation. (See, also, Robbins v. Shelby Taxing District, 120 U. S. 489, and McCall v. California, 136 id. 104.) The other acts referred to by the appellant as constituting the transaction of business within this State are clearly alien to the contemplation of the law. There were numerous questions raised upon the trial with respect to the payment of the premium, the proofs of loss, the amount of damage, the veracity of the parties representing the insured when under examination subsequent to the loss, the validity of the assignment to the plaintiff and the sufficiency of the proof on that subject, and several exceptions were taken to the charge ; but we find no 'error in the disposition of them by the court or in the rulings complained of. The judgment and orders should be affirmed. All concurred, except Bartlett, J., absent. Judgment and orders affirmed, with costs.