The plaintiff, a foreign corporation, recovered a judgment against the defendant in an action for goods sold and delivered. The only-defense interposed was that at the time mentioned in the complaint the plaintiff was doing' business in the city of New York, where the contract of sale referred to in the complaint was made, and that at that time and prior thereto it had not procured from the Secretary of State of New York a certificate that it had complied “with all-the requirements of law to authorize it to. do business in this State,” and that by reason of the failure to obtain such certificate this action could not be maintained.' Upon the trial, Which was before the court without a jury, it was held, under the proofs, that the plaintiff was not doing business in the State within the meaning of section 15 of the General Corporation Law (Laws of 1892, chap. 687), as amended by chapter 538 of the Laws of 1901.
I think the court below was right in so holding. The plaintiffs’ office is in Philadelphia. It had an agent .in New York city, and there was maintained there what is called a branch office, but it was for the agent’s convenience. It does not appear that the plaintiff was conducting business at that office, and the agent says he did not have, exclusive control of. the business of the plaintiff in this city. The merchandise sold to the defendant was a cargo of coal, and the business of the plaintiff was the selling of coal and shipping it to buyers. The agent in New York did not make contracts for the sale of coal. He reported everything to Philadelphia. No books Of account of the plaintiff Were kept in the State of New York; the plaintiff had no.bank account in the State and did not keep coal or other goods therein. Apart from the coal sold to defendant, no merchandise offered for sale through .the New York - agent-was situated in the State at the timé it was sold; and in every instance,, except six, out of 350 sales made through the agent, the sales were to parties outside the State' of New. York. This particular cargo of' coal which the defendant received and now refuses to pay for was, at the time of the sale, within the State of New York, but it had been sold in Philadelphia to a party to whom it was to be delivered here, but who had rejected it.
The case resembles in its facts that of Cummer Lumber Co. v. Associated Mfrs.’ Ins. Co. (67 App. Div. 151). There, the evidence *305established the fact that the plaintiff employed an agent -within this State to solicit orders and that agent had an office within the city of Yew York and orders were sent from New York to the Cummer Lumber Company in Florida where they were accepted and the bills and goods were sent direct from the home office of the plaintiff corporation to the customers. It was held in that case that by maintaining the agency here, the company was not doing business in this State within the meaning of section 15 of the General Corporation Law.
I am of the opinion that' the judgment should be affirmed, with costs.
Van Brunt, P. J., Ingraham and McLaughlin, JJ.,. concurred; Laughlin, J., dissented.