The objects sought to be attained by section 15 of the General Corporation Law and by section 181 of the Tax Law are widely different. The purpose of section 15 of the General Corporation Law is to prevent foreign stock corporations other than moneyed corporations from coming into the State and doing any business which cannot be lawfully carried on by a domestic corporation, and also to safeguard our own corporations by preventing a foreign one having the same name, or a name so nearly resembling it as to be calculated to deceive, from engaging in business within the State. If such foreign stock corporation shall submit proofs that it has complied with all the requirements of law, and that the business to be carried on by it in this State is one that can be lawfully carried on by a domestic corporation, and that its name does not infringe *425upon the name of any domestic corporation, then it becomes the duty of the Secretary of State to issue a certificate to that effect, and thereupon such foreign corporation is authorized to carry on business. The penalty for doing business without this certificate is that it shall not maintain any action in the courts of this State upon any contract made by it in this State, nor shall any assignee have that privilege. When such action is brought, an allegation that it has obtained this certificate and was lawfully doing business is a necessary part of the complaint. (Welsbach Co. v. Norwich Gas & El. Co., 96 App. Div. 52; affd., 180 N. Y. 533.)
The license fee or tax provided for by section 181 of the Tax Law is a, part of the general taxing scheme of the State for raising revenue That section provides that every foreign corporation, except those of a certain specified kind which has been authorized by certificate of the Secretary of State to do business under the General Corporation Law, shall pay a license fee of one-eiglith of one per centum for the privilege of exercising its corporate franchises or carrying on its business, to be computed upon the basis of the capital stock employed by it within this State. This tax requires computation and assessment by the Comptroller. One of the penalties for not paying this license fee is that such corporation shall not-, without obtaining a receipt therefor, maintain any action in any of the courts of this State. The fact that it does not obtain this receipt is a matter of defense dr demurrer based on the ground of the capacity of the plaintiff to sue. (Parmele Co. v. Haas, 171 N. Y. 579.)
In the course of the opinion in the above case O’Brien, J., says: “ The objection (that the plaintiff had not paid the license fee or tax) at most is one as to the character or capacity of the plaintiff to sue. That objection, if the defect appears upon the face of the complaint, must be taken by demurrer. (Code, § 488.) If it does not appear upon the face of the complaint it may be taken by answer. (Code, § 498.) ” This conclusion is the only logical one, for, being authorized to do business, its contracts were valid and its disability related only to its capacity to bring suit.
The plaintiff in this action is an individual who is a citizen of this State and has capacity to sue. Lack of capacity according to the Haas case is the only defense which could have been interposed *426had the corporation itself brought suit. That defense is not available against this plaintiff.
In order to hold the answer good, we must go further and say that although the plaintiff has capacity to sue and the privilege of. coming into the courts and asserting the rights that he obtained by his assignment, yet because his corporation assignor could not sue he himself must be debarred. ■
The contract that the plaintiff’s assignor made was perfectly legal for the corporation had a certificate giving it the right to do business in this State at the time it was made. It was a corporation organized under the laws of the State of New Jersey, and it made its assignment to plaintiff in that State. Presumably it had a right to assig’n a valid contract to a citizen of this State, and having that right, in the absence of express prohibition by legislative enactment, I do not see how its assignee can be prevented from enforcing the obligation. The Legislature has seen fit to say that if any foreign stock corjioratioii other than a moneyed corporation shall make any contract in this State without procuring the certificate giving it the right to do business, neither it nor its assignee shall come into our courts to enforce an obligation arising therefrom. It has carefully omitted making any such provision with respect to non-payment of a license fee. It has only prescribed that the corporation itself cannot come into the courts. The contract being legal, the assignment being legal, the plaintiff having capacity to sue, I can see no ground for saying that the defense that plaintiff’s assignor had not paid the license fee is a good one. Ample jiro vision is made in the Tax Law for collecting the license fee as well as the annual tax upon foreign corporations. Such taxes are made a lien upon their property. Eight to bring suit therefor is granted, and heavy penalties are imposed for non-payment. The collection of the tax is a matter between the State and the corporation, and payment could be enforced or penalties by way of interest be allowed to increase, as the State saw fit. The Legislature could not and did not attempt to say that the valid contract entered into by plaintiff’s assignor should be forfeited or annulled in case the license fee was not paid, nor has it expressly said that one to whom it has been assigned should not come into court to enforce its provisions. It simply provided that the corporation *427itself should not be permitted to bring action until it had obtained a receipt for payment. Not having provided that an assignee could not bring action, I see no authority for the court so determining. If the doctrine of prohibition against bringing action is to grow beyond the strict wording of the statute, we shall shortly have answers interposed that foreign corporations which have not paid the license fee have transferred and assigned in the course of its circulation commercial paper upon which action is brought, by our domestic financial institutions. It would be unfortunate if the mere passing of a negotiable instrument through the hands of a foreign corporation should prevent its collection by a citizen of our State who became its owner; but no more so than that this plaintiff should be prohibited from enforcing a valid contract validly assigned to him.
That part of the answer demurred to was insufficient in law upon its face, and the demurrer should have been sustained instead of overruled, and the interlocutory judgment should he reversed.
O’Brien, P. J., concurred.
Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrers on payment of costs in this court and in the court below. Order filed.