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for which it may be read. Such proof of the charter is prima facie only. Howell . Ruggles, 1 Selden, 414. See Laws 1832, p. 251.

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, 1 Selden. 447.

b. As to the proper method of proving public records of other States, see Markoe y. Aldrich, 1 Abbott, 55.


Actions in Particular Cases.

Chapter I. Actions against foreign corporations.

11. Actions in place of scire facias, quo warranto, and of informations in

the nature of a quo warranto.
III. Actions for the partition of real property.
IV. Actions to determine conflicting claims to real property, and for waste

and nuisance.
V. General provisions relating to actions concerning real property.


Actions against Foreign Corporations.

SECTION 427. Where and by whom brought.

$ 427. 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 code of 1843 had no section corresponding to this; and in an action commenced against a foreign corporation in the court of common pleas for the city and county of New York while that code was in operation, and called on for trial after the code of 1849 went into effect,-on the cause being called, it was objected that the court had no jurisdiction; to which it was answered, that, by appearing and answering without objection, the defendant had waived his right to object to the jurisdiction ; but it was held, that the court had no jurisdiction of the action, and that the right to reserve the objection to the time of trial was expressly conferred by the code, and that there had been no waiver so as to confer jurisdiction. Case v. Ohio Ine. Co., 2 Code Rep., 82.

a. 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 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 defendants' property. Hulbert v. Hope Mutual Ins. Co., 2 Code Rep., 148; 4 Pr. R., 275; ib., 415; Brewster v. Michigan Central R. R, Co., 3 Code Rep., 215; 5 Pr. R., 183.

b. Every insurance and other corporation created by the laws of any other State, doing business in this State, shall within 30 days after the passage of this act (act passed 10th April, 1855), designate some person residing in each county where such corporation transacts business, on whom process issued by authority of or under any law of this State may be served, and within the time aforesaid shall file such designation in the office of secretary of state, and a copy of such designation, duly certified by said officer, shall be evidence of such appointment, and it shall be lawful to serve on such person so designated any process issued as aforesaid ; such service shall be made on such person in such manner as shall be prescribed, in case of service required to be made on any resident of this State ; and such service shall be deemed a valid service thereof. (Laws of 1855, ch, 279, p. 470, s. 1.)

c. In all cases where such designation shall not be made as aforesaid, and such foreign corporation cannot be served with such process according to the present provisions of law, it shall be lawful to serve such process on any person who shall be found within this State acting as the agent of said corporation, or doing business for them. (16., s. 2.)

d. Service made in accordance with any provision of this act, shall be as effectual as if made in the form and manner required by law, and shall be deemed a full compliance with any statute requiring personal or other service to be made. (Ib., s. 3.)

€. The term process, in this act, shall be held and deemed to include any writ, summons, or order whereby any action, suit, or proceeding shall be commenced, or which shall be issued in or upon any action, suit, or proceeding, by any court, officer, or magistrate. (16., 8. 4.)

f. An action against a foreign corporation is now, as a suit was formerly, a proceeding against its property only, unless there is a voluntary appearance by the defendant. Hulbert v. Hope Mut. Ins. Co., 4 Pr. R., 275.

g. The law authorizing suits against foreign corporations was not changed by the code as originally adopted (code of 1848), but the amendment of 1849 introduced into that act provisions regulating such actions which probably supersedo pre-existing statates on that subject. Laws of 1845, c. 234, p. 256; Laws of 1848, c. 53, p. 69; Laws of 1849, cap. 107, p. 142; 1 Rep. of Commrs. on Practice, p. 39 ; Code ss. 227 to 243 ; 2 R. S., 459.) Before 1849 the only mode of proceeding against a foreign corporation was by attachment (1 Pr. R., 250 ; 2 R. S., 459. g. 15). By chapter 107 of laws of 1849, the revised statutes were amended so as to require a summons and complaint to accompany the attachment, but now it is not required that the attachment should accompany the service of the summons. It may be served afterwards. Ib.

h. A suit against a foreign corporation cannot be commenced and prosecuted to judgment in the courts of this State unless the cause of action arose in this State, or the corporation has property in this State which can be reached by attachment. Eggleston v. Orange and Alexandria Railroad Co., 1 Code Rep. N. S. 212.

i. A foreign corporation has the same right to sue in the courts of this State as any other non-resident, if the nature of the claim is such as should be enforced by a corporation ; and as to suits against a foreign corporation, except section 427, the code and the revised statutes make no distinction between a resident and non-resident plaintiff (Bank of Commerce v. Rutland and Wash. R. R. Co., 10 Pr. R., 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. West. ern Bank v. City Bank of Columbus, 7 Pr. R., 238.


Actions in place of scire facias, quo warranto, and of inform

ations in the nature of quo warranto.

Section 428. Scire facias and quo warranto abolished, and this chapter substituted. 429. Action may be brought by attorney-general to vacate a charter, by

direction of legislature. 430. Action to annula corporation, when and how brought by attorney.

general, by leave of supreme court. 431. Leave, how obtained. 432. Action upon information or complaint, of course. 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 action. 437. Assumption of office, &c., by relator, when judgment is in his favor. 438. Proceedings against desendant on refusal to deliver books or papers. 439. Damages, how recovered. 440. One action against several persons claiming office or franchise. 441. Penalty for usurping office or franchise, how awarded. 442. Judgment of forfeiture against a corporation. 443. Costs against corporation or persons claiming to be such, how col.

444. Restraining corporation and appointment of receiver.
445. Copy of judgment roll against corporation, where to be filed.
446. Entry of judgment relating to letters patent in records of commission.

ers of land office.
447. Actions for forfeiture of property to the people.

$ 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 proceeding 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 judg. ment, is superseded by the provisions for an action therefor under the code. Cameron v. Young, 6 Pr. R., 372.

6. From the language used, 'by civil action under the provisions of this chapter," it would be supposed that special provision would be found in that chapter for every case where relief had before been obtained by scire facias. But that is not so, and the only cases specially provided for are usurpations of franchises. And as scire facias was one mode of testing a right to a franchise, and quo warranto and information

in nature of a quo warranto were others, and this section abolishes all three of these ancient remedies, there is room for argument that the only scire facias intended to be abolished was that which was of the same nature with the two other writs, and for which this chapter specially provides. This, however, is contrary to the general understandiug, and to the object of the code in getting rid

of the old system, and to the broad language used in this section.” Mitchell, J. Thurston v. "King, 1 Ab. bott, 127.

a. 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 Cameron v. Young, 6 Pr. R., 372.

b. 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. Martine, 2 Duer, 655.

c. Where a judgment was obtained in 1842, and the plaintiff on May 4, 1849, is sued a writ of scire facias quare executionem non, the court, on defendant's motion, sot aside such writ, saying, The amended code took effect prior to the issue of this writ, and must control the rights of the parties. By section 428 the writ of scire facias is abolished, and the remedies prescribed by sections 283 and 284 substituted. The saving clause in section 428 relates only to proceedings by scire facias commenced before the code took effect, whether judgment had been rendered therein or not. The motion contemplated by section 284 renders a scire facias unnecessary. Catskill Bank v. Sandford, 4 Pr. R., 100. It was held otherwise under the code of 1848, but that code had no section corresponding to this. Anon., 1 Code Rep.,


d. In an action in the nature of a quo warranto, the place may properly be laid in any county in the State. The people are a party whose residence extends to every county. The People v. Cook, 6 Pr. R., 448.

e. In quo warranto commenced before July, 1848, motions for judgment must be made to the general term. People ex rel. Coon v. Gilbert, 2 Code Rep., 31; ib., 181.

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$ 429. Action may be brought by attorney-general to vacate a charter, by direction of legislature.

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.

$ 430. Action to annul a corporation, when and how brought by attorney-general by leave of supreme court.

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

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