#### The Singer Sewing Machine Company, Appellant, *v.*William H. Foster, Respondent.

(Supreme Court, Appellate Term,

March, 1912.)

Pleading — Matters relating to pleadings generally — Complaint or declaration — Answer.

Appeal — Judgments and orders appealable — Orders relating to motions for new trial — When authorized.

Where neither the complaint nor the answer in an action for rent alleged that' the plaintiff’s assignor, a foreign corporation, was doing business in this State, evidence offered by defendant, that the corporation was doing business at the time of the execution of the lease without having the certificate required by section 15 of the General Corporation Law, is properly excluded.

An order granting defendant’s motion to set aside a verdict in plaintiff’s favor and for a new trial, on the ground that it was error to exclude defendant’s offer of proof, will be reversed.

Appeal by the plaintiff from an order of the City Court of the city of Few York, setting aside the verdict of a jury in its favor and granting a new trial.

*642. Ver Planck, Prince & Flanders (Henry A. Prince, of counsel), for appellant.

Walter Underhill, for respondent.

Seabtjry, J.

The action was for rent. The plaintiff was the assignee of the Singer Manufacturing Company, a foreign corporation. The verdict of the jury established the fact that the defendant was liable for the rent sued for. The correctness'of this determination'is not‘disputed upon this appeal. The complaint alleged that the plaintiff’s assignor was a foreign corporation, but neither the complaint nor the answer alleged that the plaintiff’s assignor was doing business in this State. The plaintiff is a foreign corporation and duly procured from the Secretary of State of Hew York the certificate prescribed by section 15 of the General Corporation Law. A motion to set aside the verdict and for a new trial was entertained by the.learned court- below “ upon the sole ground that it was an error not to permit the defendant to show that plaintiff’s assignor was a foreign corporation doing business within-this State at the time the lease, the subject of the action, was made without complying with section 15 of the General Corporation Law.” Upon this ground alone the court set aside the verdict and ordered a new trial. The learned court below took this action upon the supposed authority of Wood & Selick v. Ball, 190 N. Y. 217.

We do not think that the case -cited is authority for the action taken by the court below. That case, as we understand it, is authority merely for the proposition that where a foreign stock corporation sues, which is *“*doing business in this State ” compliance with section 15 must be alleged as a condition precedent to its right to maintain the action, and that, when the complaint fails to contain such an alie-gation, it fails to state-facts sufficient-to constitute a cause of action, and that such an objection is not waived by the failure to raise it by demurrer or answer. We do not understand that that case intended by construction to extend the legislative provision. The purpose of that.case was to affirm *643the necessity for observing that statutory provision. Assuming that the plaintiff in this action stands in no better position than its assignor, it does not follow that, because the plaintiff’s assignor is a foreign corporation, it was doing ■business in this State. The statute applies only to the case (1) of a foreign stock corporation, (2) doing business in this State and (3) suing on a contract made in ¡New York. Unless all of these elements are present the statute has no application. There is no allegation in the proceedings that .the plaintiff’s assignor was doing business in Hew York. Certainly there is no presumption that the plaintiff’s assignor was doing business in this State merely because it was a foreign corporation.

As was well said by Mr. Justice Gerard,in Singer Mfg. Co., v. Granite Spring Water Co., 66 Misc. Rep. 595: “ The foreign corporation may he presumed to be a stock corporation (Portland Co. v. Hall & Grant Const. Co., 123 App. Div. 495), but it cannot be presumed that because it is a foreign stock corporation it is doing business in this State.”

Where it does not appear, either from the complaint or the proofs, that the foreign stock corporation is doing business in this State and the defendant seeks to avoid the cause of action alleged on the ground that such corporation was doing business'in this State, it can do so only by pleading this new matter by way of defense and sustaining it by proof. Fuller & Co. v. Schrenk, 58 App. Div. 222; affd., 171 N. Y. 671; St. George Vineyard Co. v. Fritz, 48 App. Div. 233; Parmele Co. v. Haas, 171 N. Y. 579, 583; Eclipse Silk Mfg. Co. v. Hiller, 145 App. Div. 568.

It follows that, in the absence of such a defense being pleaded and it not appearing either from .the complaint or the plaintiff’s evidence that the plaintiff’s assignor was doing business in this State, the court below correctly excluded evidence tiffered by the defendant on this point, and that the court erred in setting aside the verdict of the jury.

Gut and Bijub, JJ., concur.

Order reversed, with costs, and verdict reinstated, with costs."