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a. Foreign laws are regarded as facts, and should be alleged and proved like other facts of which the courts do not take judicial notice (Monroe v. Douglass, 5 N. Y. 447; and see 2 Laws U. S. 102, § 1; Monroe v. Guilleaume, 3 Keyes, 30).
b. As to the proper method of proving public records of other States (see Markoe v. Aldrich, 1 Abb. 55; and see Laws 1858, pp. 498, 500; 24 N. Y. 394; Toulandou v. Lachenmeyer, 6 Abb. N. S. 215.)
c. Books offered in evidence as the "printed statute book" of a sister State, must purport" to be printed under the authority of such " State (Bright v. White, 8 Mo. R. 421; and see Bailey v. Lincoln Academy, 12 id. 177).
d. A land patent may be proved by a constat or exemplification of the record (McKineron v. Bliss, 31 Barb. 180).
e. As to proving incorporation of foreign corporation (see Waterville Manuf. Co. v. Brown, 9 How. 27; Persee Paper Works v. Willett, 1 Rob. 131; 19 Abb. 416; see Laws 1863, ch. 206; 1869, ch. 589); records of courts in Canada (see Lazier v. Westcott, 26 N. Y. 146); records of inferior courts (see Simons v. De Bare, 4 Bosw. 547; 6 Abb. 188); corporation ordinances (see 7 How. 81; Logue v. Gillick, 1 E. D. Smith, 398); records in supervisors' office (Laws 1855, ch. 249, p. 383); records in office of collectors of customs (Laws 1862, ch. 251, p. 450); judgment of foreign state (Black's Case, 4 Abb. 162).
Actions in Particular Cases.
CHAPTER I. ACTIONS AGAINST FOREIGN CORPORATIONS.
II. ACTIONS IN PLACE OF scire facias, quo warranto, AND OF IN-
IV. ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROP
ERTY, AND FOR WASTE AND NUISANCE.
V. GENERAL PROVISIONS RELATING TO ACTIONS CONCERNING REAL
Actions against Foreign Corporations.
Where and by whom brought.
An action against a corporation created by or under the laws of any other State, government, or country, may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases:
1. By a resident of this State, for any cause of action.
2. By a plaintiff not a resident of this State, when the cause of action shall have arisen, or the subject of the action shall be situated within this State.
a. The Law of 1849, p. 142, is not repealed by the code, and the courts, therefore, have jurisdiction against foreign corporations for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed or delivered within this State, or upon any cause of action arising therein (Jones v. Norwich Trans. Co. 50 Barb. 191; Dart v. Farmers' B'k, 27 Barb. 337).
b. Although it is essential to the jurisdiction of a court of this State over a foreign corporation, that either the plaintiff should be a resident of this State, or the cause of action should have arisen, or the subject of the action should be situated within it, yet it is not necessary to the validity of proceedings against a foreign corporation that proof of either of these facts should be made prior to the commencement of proceedings. It is sufficient if a state of facts which sustains the jurisdiction is made to appear, upon motion to set the proceedings aside (Bates v. N. O. Jackson and Gr. North. R. R. Co. 4 Abb. 72; 13 How. 516; and see Elizabethport Manufac. Co. v. Campbell, 13 Abb. 86).
c. The act (ch. 234, of 1845) in relation to suits against foreign corporations does not undertake to establish any new liability on the part of stockholders or debtors of such corporations, but only provides for subrogating creditors of the corporation, proceeding against it by attachment in this State, to such rights as the corporation itself under the local law or lex loci contractus might have enforced against the stockholder or debtor (Seymour v. Sturgis, 26 N. Y. 134).
d. The service of a summons upon the president of a foreign corporation who happens to be temporarily in this State, and who does not voluntarily appear, does not give the court jurisdiction of the defendant (the corporation) for the purpose of rendering a personal judgment upon contracts made in this State, or for debts due to residents of this State. Such a service must be regarded, for all practical purposes, as simply a statutory notice that proceedings are about to be instituted against the defendant's property (Hulbert. v. Hope Mut. Ins. Co. 4 How. 275; ib. 415; Brewster v. Michigan Cent. R. R. Co. 5 How. 183).
e. A foreign corporation has the same right to sue in the courts of this State as any other nonresident, if the nature of the claim is such as should be enforced by a corporation; and as to suits against a foreign corporation, except § 427, the code and the revised statutes make no distinction between a resident and nonresident plaintiff (Bank of Commerce v. Rutland and Wash, R. R. Co. 10 How. 7); but a foreign corporation is not authorized either by the revised statutes or the code, to sue another foreign corporation in the courts of this State by attachment, unless the cause of action has arisen, or the subject of the action is situated, within this State (Western Bank v. City Bank of Columbus, 7 id. 238).
f. In an action against a foreign corporation, it must appear, in order to give the court jurisdiction, either that the cause of action arose, or that the subject of the action is situate, within this State, or that the plaintiff is a res ident of this State and the defendant has property within it (Harriott v. N. Jersey R. R. Co. 8 Abb. 284; 2 Hilton, 262; Cumberland Coal Co. v. Hoffman Steam Coal Co. 30 Barb. 159; 20 How. 62; Campbell v. Proprietor of Champlain, &c. R. R. 18 How. 412). It seems that if the cause of action arose, or the subject of the action is situated within this State, the question of the defendant's having property becomes immaterial, whether the plaintiff is a resident or not (Cumberland Coal Co. v. Sherman, 8 Abb. 243).
g. That act of 1855 (Laws 1855, ch. 279), requiring foreign corporations, doing business within this State, to designate a person to receive service of
process, does not operate to give the court jurisdiction of cases not included in sections 134 and 427 of the code (id.)
a. A foreign corporation, by appearing and answering, does not waive the objection that the court has not jurisdiction (Harriott v. N. Jersey R. R. Co. 8 Abb. 284; 2 Hilton, 262; see Murray v. Vanderbilt, 39 Barb. 141; Hulbert Hope Mut. Ins. Co. 4 How. 275).
b. Where the demand on which the action was brought arose upon written contracts for the payment of money, made, delivered, and payable in Canada, and all the labor done and materials furnished were pursuant to those contracts, and upon work located in Canada, for the corporation created by the laws of Canada, and existing there, except a small part which was performed in this State, pursuant to said contracts,-held not a case where the subject of the action was situate in this State, and although the defendant, the foreign corporation, had property in this State, it could not be attached (Campbell v. Propriet of Champlain & St. Lawrence R. R. 18 How. 412).
c. The courts of this State will not entertain jurisdiction of a suit between two corporations both chartered by the laws of Maryland respecting lands lying in that State, the object of which suit is to annul, on the ground of fraud, a conveyance of such lands to the defendants, executed and recorded in Maryland (Cumberland Coal Co. v. Hoffman Coal Co. 30 Barb. 159; 20 How. 62).
d. Chap. 107, of Laws of 1847, providing for suits against foreign insurance corporations, on contracts made within this State, authorizes an attachment as a provisional remedy, in an action on a policy of insurance issued in this State (Burns v. Provincial Ins. Co. 13 Abb. 425).
e. The supreme court has no power over a foreign corporation in a proceeding commenced by a stockholder to wind up its affairs (Murray v. Vanderbilt, 39 Barb. 141; and see Howell v. Chicago R. R. Co. 51 Barb. 378; Fisk v. Rock Island R. R. 4 Abb. N. S. 378).
f. Pleadings in actions by and against foreign corporations. In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even the title of the act or grant or the date of its passage (Holyoke Bank v. Haskins, 4 Sand. 675; but see 9 Abb. 168; and Marine Ins. Co. v. Jauncey, 1 Barb. 487).
g. The provisions of the revised statutes (art. 1, tit. 10, ch. 8, p't 3), modifying the rule of pleading in actions by corporations, do not apply to foreign corporations (Waterville Manuf. Co. v. Bryan, 14 Barb. 182). And in an action by a foreign corporation, under a general denial, it must prove its corporate existence (id.) The complaint in an action against a foreign corporation should, it seems, state the residence of the plaintiff, or state if he be a resident or nonresident, or it should show that the cause of action arose or is situated within this State (House v. Cooper, 16 How. 293). In an action against a foreign corporation for equitable relief, it is improper to join a claim for damages against individual defendants (House v. Cooper, 30 Barb. 157; see ante, 172, h, 222, b.
h. The statute of limitations is a good defense to an action against a foreign corporation (Olcott v. Tioga R. R. Co. 20 N. Y. 210). See, as to proceedings against, Grand Trunk and Great Western Railroad of Canada, Laws 1857, p. 188; Laws 1868, p. 1690. Buffalo and Lake Huron Railway, Laws 1858, ch. 121; Whitehead v. Buffalo &c. R. R. Co. 18 How. 218.
Actions in place of scire facias, quo warranto, and of informa tions in the nature of quo warranto.
Action may be brought, by direction of the legislature, by the attorney general, to vacate a charter.
Action to annul a corporation, when and how brought by the attorney general, by leave of the supreme court. 431. Leave to sue, how obtained. 432. Action upon information or complaint of course.
Scire facias and quo warranto abolished, and this chapter substituted.
433. Action, when and how brought to vacate letters patent. 434. Relator, when to be joined as plaintiff.
435. Complaint and arrest of defendant in action for usurping an office
436. Judgment in such actions.
437. Assumption of office, &c., by relator, when judgment is in
438. Proceedings against a defendant, on his refusal to deliver books or papers.
439. Damages, how recovered.
440. One action against several persons claiming office or fran
441. Penalty for usurping office or franchise, how awarded. 442. Judgment of forfeiture against a corporation,
443. Costs against a corporation, or persons claiming to be such, how collected.
444. Restraining corporation, and appointment of a receiver. 445. Copy of judgment-roll against corporation, where to be
446. Entry of judgment relating to letters patent.
§ 428. Scire facias and quo warranto abolished, and this chapter substituted.
The writ of scire facias, the writ of quo warranto and proceedings by information in the nature of quo warranto, are abolished; and the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of this chapter. But any proceedings heretofore commenced, or judgment rendered, or right acquired, shall not be affected by such abolition.
a. The remedy heretofore given by scire facias, to obtain execution of a judgment, is superseded by the provisions for an action therefor under the code (Cameron v. Young, 6 How. 372; Alden v. Clarke, 11 id. 209; and see Thurston v. King, 1 Abb. 127; Ireland v. Litchfield, 8 Bosw. 634; Connor V. Such, 9 Bosw. 221). The action in the nature of a quo warranto is in substance
the same, and is governed by all the rules regulating proceedings under the former practice (The People v. Pease, 30 Barb. 588).
If, after the death of one of several defendants pending the action, his heirs appear voluntarily without any order to revive against them, and the action proceeds to judgment, they are bound by it (Requa v. Holmes, 19 How. 430).
b. The executors of a deceased judgment creditor may maintain an action against the judgment debtor, "for and to obtain an execution to be issued in their names to be levied of any lands which the judgment debtor held when the judgment was docketed" (ib.; and see Ireland v. Litchfield, 22 How. 179; Tallman v. Varick, 5 Barb. 277).
c. An assignee of a judgment, after the death of the judgment debtor may maintain an action to have execution of the original judgment (Jay V. Martin, 2 Duer, 655).
§ 429. Action to vacate a charter.
An action may be brought by the attorney general, in the name of the people of this State, whenever the legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent.
d. If it be conceded that the attorney general may maintain an action in the name of the people to restrain a municipal corporation, it can only be to restrain them from making a fraudulent or illegal disposition of the corporate property (The People v. Lowber, 28 Barb. 65; see The People v. Clark, 53 Barb. 172).
e. The attorney general may maintain an action in the name of the people to restrain a municipal corporation from exercising authority not possessed by it under its charter or by law (The People v. Mayor of N. Y. 10 Abb. 444; 32 Barb. 35; 19 How. 155).
§ 430. Action to annul a corporation.
An action may be brought by the attorney general, in the name of the people of this State, on leave granted by the supreme court, or a judge thereof, for the purpose of vacating the charter or annulling the existence of a corporation, other than municipal, whenever such corporation shall
1. Offend against any of the provisions of the act or acts creating, altering, or renewing such corporation; or,
2. Violate the provisions of any law by which such corporation shall have forfeited its charter by abuse of its powers; or,
3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers; or,
4. Whenever it shall have done or omitted any act which