Osborne Co. v. Walters , 155 N.Y.S. 434 ( 1915 )

PAGE, J.

The plaintiff is a foreign corporation. An agent of the corporation took a written order for 300 calendars, which were made in, and shipped from, the state of New Jersey. At the conclusion of the plaintiff’s case the defendant moved to- dismiss the complaint, upon, the ground that the plaintiff was a foreign stock corporation doing business in this state, and that the complaint did not allege that it had obtained the certificate of the secretary of state pursuant to section 15 of the General Corporation Law.

The sole evidence of the alleged doing business in this state was the talcing of the order in suit and reference therein to a similar order taken the previous year. The mere solicitation of orders, which are to be filled in another state and shipped to this state, is not doing business in this state, within the purview of the statute. There was no allegation in the complaint from which it could be inferred that plaintiff was engaged in business in this state. If, therefore, the defendant desired to- avoid the contract on this ground, the defense should have been appropriately pleaded in the answer.

Judgment reversed, and a new trial granted, with $30 costs to the appellant to abide the event. All concur.