#### William Stern, Respondent, *v.*Johh C. Childs, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

Foreign corporation — When the defense, that cannot sue because it is doing business without having paid a license fee, is not available.

The statute (Laws of 1896, chap. 908, § 181), declaring that a foreign corporation cannot maintain an action in the courts of the state of New York without obtaining a receipt for the license fee, imposed by the statute, within thirteen months after beginning business within the state, cannot be successfully invoked as a defense to an action brought by the assignee of a foreign corporation which has not paid thé license fee in question, where the defendant merely introducesi inconclusive testimony tending to show that the foreign corporation was doing business within this state at the time of the trial of the action, and offers no proof in this regard as to any anterior period.

Appeal from a judgment in favor of the plaintiff of the Municipal Court of the city of New York, borough of Manhattan, for the first district.

Bernard Naumberg, for appellant.

C. N. Ironside, for respondent.

*420Leventritt, J.

The pleadings are written. The plaintiff, aa assignee, brings this action to recover the unpaid balance for goods sold and delivered to the defendant by an Illinois corporation. The defendant resists recovery upon the plea that the plaintiffs assignor is a foreign corporation and as such has been doing business in the city of New York, continuously for more than thirteen months; that it has a present place of business in said city and that it has failed to pay to the state treasurer the license fee and obtained the receipt therefor, as required by the statute.

The sole question litigated was the applicability of that statute, which reads as follows:

> *“*License tax on foreign corporations.— Every foreign corporation, joint-stock company .or association, except banking, fire marine, casualty and life insurance companies, and corporations wholly engaged in carrying on manufactures in this state, cooperative fraternal insurance companies, and building and loan associations, authorized to do business under the general corporation law, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state during the first year of carrying on its business in this state. No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation without obtaining a receipt for the license fee hereby imposed within thirteen months after beginning such business within the state.” Laws of 1896, chap. 908, §. 181.

The only evidence disclosed by the record upon that issue, is the Hlinois certificate of incorporation and the New York certificate of nonpayment of the license fee.

There was random and inconclusive testimony introduced to show that the corporation was doing business in this state at the time of trial but no proof was offered as to any anterior period.

The facts proven do not render a foreign corporation amenable to the provisions of the statute quoted. Hence the judgment must be affirmed for failure to establish the defense.

Judgment affirmed, with costs to the respondent.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs.