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Second Department, October, 1911.

[Vol. 146. this, ratified the change, bought back the property from the vendee's

brother and resold it. Held, that the subsequent assent of the vendor to the change of the name

of the grantee in the deed was under the circumstances equivalent to the

substitution of a new deed for the old one; That the vendee named in the contract of sale could recover from the

vendor all payments made on the purchase price and the expenses to which he had been subjected, for the vendor should not be allowed to retain the proceeds of a sale which was never consuminated in addition to the money which he had received when he resold the property.

1

APPEAL by the defendant, Herbert J. Callister, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

William F. Timm [Jacob Rieger with him on the brief], for the appellant.

Edward J. Maxwell, for the respondent. HIRSCHBERG, J.:

The action is brought in equity to compel the specific performance by the defendant of a contract for the sale of real estate, and has resulted in a judgment for damages, the specific performance being impossible. The parties had executed a written agreement whereby for a stipulated consideration the defendant agreed to convey to the plaintiff the real estate in the month of August, 1906. Subsequently the defendant conveyed the property to another, and the judgment covers the payments made by the plaintiff under the contract and the expenses to which he has been subjected in the premises.

At the time set by the contract for the transfer of the title the plaintiff was absent from the country, but he intrusted the consummation of the sale to his brother, empowered by written attorney to act for him. The defendant was not present, but had executed and delivered to an agent a deed of the premises in which the plaintiff was named as grantee. Without the plaintiff's knowledge or consent, but with the consent of his attorney in fact, the name of the latter was substituted for that of the plaintiff in the deed as grantee. Some time afterward

App. Div.] Second Department, October, 1911. the defendant learned of this substitution and alteration, but ratified the change and bought the property back from the plaintiff's brother, and, as I have said, sold it for value to another purchaser.

The appellant cites numerous authorities in support of the proposition that the change in the name of the grantee was in law a forgery and that there can be no ratification of a crime. I think, however, in view of the subsequent assent to the change and the repurchase of the property by the defendant, that the transaction may be regarded as equivalent to a change in the deed made at the time by the appellant or a destruction of the deed by the appellant at the time and the substitution therefor of a new one, executed to the plaintiff's brother as grantee. The learned court at Special Term was of the opinion that the subsequent manipulations of the title by the defendant indicated that he knew of the alteration at least at the time of the repurchase, and it would certainly be unjust to allow him to retain the proceeds of a sale which was never consummated, in addition to whatever he may have received on the sale as subsequently effected.

The judgment should be affirmed.
JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred.
Judgment affirmed, with costs.

ALPHA PORTLAND CEMENT COMPANY, Appellant, v. SCHRATWIESER FIREPROOF CONSTRUCTION COMPANY, Respondent.

Second Department, October 6, 1911. Pleading-action by foreign corporation - failure to allege authority

to do business in this State. It is error to dismiss the complaint, before evidence is taken, in an action

on a promissory note brought by a foreign corporation against a domestic corporation on the ground that there is no allegation that the plaintiff was authorized to do business in this State within the provisions of section 15 of the General Corporation Law, although the note set forth was payable at a bank in this State, if there be no allegation of the time and place of its delivery, the consideration, or where the transaction out of which it arose took place, or that the plaintiff is doing business in this State or has any office therein.

Second Department, October, 1911.

[Vol. 146. There is nothing on the face of such complaint to warrant the pre

sumption that plaintiff was doing business in this State, and until such fact appears in some form a dismissal of the complaint is unauthorized.

APPEAL by the plaintiff, the Alpha Portland Cement Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of April, 1911, dismissing the complaint.

Louis H. Porter [William C. Dodge with him on the brief], for the appellant.

George E. Miner, fof the respondent. RICH, J.:

This appeal is from a judgment of the Municipal Court dismissing the plaintiff's complaint before the cause was opened or any evidence given upon the ground that it contained no allegation that the plaintiff had complied with the provisions of section 15 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28) by procuring the certificate authorizing it to do business in this State, and that because of such omission the complaint did not state facts sufficient to constitute a cause of action.

The plaintiff's cause of action is upon a promissory note in the usual form, dated at Brooklyn in this State. The complaint alleges that the plaintiff is a foreign corporation duly organized and existing under the laws of the State of New Jersey; that the defendant is a corporation organized and existing under the laws of the State of New York; that on the 21st day of December, 1910, the defendant executed the note which is set forth in full; that at maturity it was presented at the Brooklyn Bank, where it was made payable, for payment; that plaintiff is still its owner; that no part thereof has been paid; and that $296.35 is due and unpaid thereon. There is no allegation of the time and place of its delivery, what it was given for, where the transaction out of which it arose took place, or that the plaintiff is doing business in this State or has any office therein. For all that appears on the face of the complaint a recovery was authorized without proof that plaintiff had complied with the statutory provision entitling it to transact business in this State. (Commercial Coal & Ice Co. v. Polhemus, Nos. 1 & 2, App. Div.] Second Department, October, 1911. 128 App. Div. 247; Penn Collieries Co. v. McKeever, 183 N. Y. 98; Stone v. Penn Yan, K. P. & B. Railway, 197 id. 279; Vio Chemical Co.v. Studholme, 53 Misc. Rep. 470; Haddam Granite Co., Inc., v. Brooklyn Heights R. R. Co., 131 App. Div. 685; Union Trust Co. v. Sickels, 125 id. 105; New York TerraCotta Co. v. Williams, 102 id. 1; Rundle Spence Mfg. Co. v. Gainsborough C. Co., 123 N. Y. Supp. 785; Singer Mfg. Co. v. Granite Spring Water Co., 66 Misc. Rep. 595.) The complaint upon its face alleged a good cause of action. There was nothing before the trial court warranting the presumption that the plaintiff was doing business in this State, and until such fact appeared in some form the dismissal of the complaint was una uthorized. The court based his ruling upon Manufacturers' Commercial Co. v. Blitz (131 App. Div. 17), but that decision rests upon the fact that the corporation was doing business in this State and that the contract sued upon was made here. It had an office in the city of New York at which the note sued on was made payable. The case is not an authority in favor of the contention here made. Nor does Wood & Selick v. Ball (190 N. Y. 217) aid the respondent, as in that case it appeared from the complaint that the plaintiff was a foreign corporation “having its principal office for the transaction of business in the city of New York," and that the cause of action was for goods, wares and merchandise sold and delivered to defendant by plaintiff at Watertown, N. Y. In Welsbach Co. V. Norwich Gas & Electric Co. (96 App. Div. 52), which the IL'ood case followed, the complaint contained the same allegati ons, thus showing upon its face the existence of all of the conditions which under the provisions of the statute made it o bligatory upon the plaintiff, in order to allege a cause of action, to aver the procurement of the statutory certificate, and it follows that the dismissal of the complaint was reversible error. (St. Albans Beef Co. v. Aldridge, 112 App. Div. 803, 805.)

The judgment of the Municipal Court should be reversed and a new trial ordered, with costs to abide the event.

BURR, THOMAS, CARR and WOODWARD, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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Insurance — when mortuary benefit conditional – evidence – oonditions precedent to recovery

admission.

Where the constitution of a society having a mortuary benefit fund for

members provides that the society will pay $200 on the death of a member, but that if there is not more than $500 in the treasury at the time of a member's death, the beneficiary will receive no benefit, save as certain assessments may be made upon members, the payment of the

mortuary benefit is conditional, not absolute. Hence, it is incumbent upon a beneficiary suing the society for the $200

benefit to establish that at the time of the member's death, or when the benefit became payable, there was more than $500 in the defendant's

treasury. That fact is not proved by an admission of the defendant that at the time

of the member's death there was $500 in its treasury, of which $200 were put in in lieu of a bond of the society's treasurer, such bond being required by the constitution.

APPEAL by the defendant, St. Peter's Lithuanian Society, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of March, 1911.

Elias Rosenthal, for the appellant.

Charles L. Fasullo, for the respondent.

RICH, J.:

The defendant appeals from a judgment in favor of the plaintiff in an action to recover a death benefit. The sole question presented on the former appeal (1+1 App. Div. 852) was whether deceased was a member in good standing at the time of his death. The same question is presented on this appeal, but the contention is without merit. Article 5 of defendant's constitution, section 1, provides that in case of a member's death, after having been such member for six months, the society will pay $200. Section 3 provides, among other things. “If in the Society's Treasury there is found not more than

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