Henry Huber Co. v. Warren , 61 N.Y.S. 247 ( 1899 )

Contain*, J.

The plaintiff is a foreign corporation, having an office and place of business in the city of Hew York. A foreign corporation is not a person, within the meaning of section 3268 of the Code of Civil Procedure, and is not, therefore, exempt for that reason from the obligations of that section, simply because of its having a place of business or an office within the city of Hew York. In construing section 3268, the court, in the Republic of Honduras v. Soto, 20 N. Y. St. Repr. 750, says: “ The word ‘person’ was, we think, used in its enlarged sense as comprising all legal entities except foreign corporations.” The section itself expressly designates, in subdivision 2, a foreign corporation as liable to give security for costs, and this, too, without regard to whether it has an office or place of business within the city; and it was distinctly held in Kennedy Co. v. McCormack, 18 N. Y. St. Repr. 287, that a foreign corporation, having a place of business within the city of Hew York, is not deemed a resident of that city, constructively or otherwise, and it may be required to give security for costs. The language of section 3160 is not ambiguous; it says the 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 Hew York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of the Code of Civil Procedure; but it was distinctly held in Kennedy v. McCormack, supra, that a foreign corporation is not a person and could not be so held to be, because it has not and cannot transact business in person, but must do it necessarily through its officers and agents. A special definition is given to the word “ person ” in section 3358 of said Code, in proceedings for the condemnation of real property, where it is made to include a corporation, joint-stock association, and the like, and this section lends additional force to the belief that the Legislature did not intend, under any of the general provisions of the Code, to thus far extend its signification. The word “person” is expressly omitted from among the definitions contained in section 3334 of said Code, and we are, for the reasons given, of the opinion that a foreign corporation is not exempt for any reason whatever from the provisions of section 3268, requiring a nonresident plaintiff to give security for costs.

Upon the further ground of laches — we do not think that anything short of an overstrained interpretation of what constitutes laches can be found in the record before us, and we are unwilling to say that the defendant was guilty of such laches as to lose the benefit of the remedy given him by the section considered.

The order appealed from must, therefore, be reversed, with costs, and the plaintiff be required to give security, in accordance with the requirements of section 3268 of the Code.

Eitzsimons, Oh. J., and McCarthy, J., concur.

Order- reversed, and plaintiff required to give security.