The allegation of the defense is “ That prior to the making of said contracts and agreements the said Locomobile Company (plaintiff’s assignor) had not procured from the Secretary of State the certificate required by section 15 of the General Corporation Law.”
The contract upon which the action is based is alleged to have been made in 1900, at which time section 15 of the General Corporation Law provided inter alia, “ Ro foreign stock corporation * * * doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state, unless * * * it shall have procured such certificate.”
Under this provision, an action was maintainable by a foreign corporation if, at any time before bringing an action, it procured the certificate. Neuchatel Asphalt Co. v. Mayor, 155 N. Y. 373.
The amendment to section 15 of the General Corporation Law, made by chapter 538 of the Laws of 1901, after the decision in the Neuchatel case, supra, provided: “ Bo foreign stock corporation * * * in the state shall maintain any action in this state upon any contract made by it in this state, unless prior to the making of such contract, it shall have procured such certificate.”
Manifestly, by its very language, this amendment had no application to contracts made prior to April 25, 1901, the date of the passage of the amendment.
To hold otherwise would result in an impairment of the contract obligation into which the corporation entered in the year 1900.
“ The obligation of a contract is' impaired in the constitutional sense by any law which prevents its enforcement *456or which materially abridges the remedy for enforcing it which existed when it was contracted and does not supply an alternative remedy equally adequate and efficacious. (McGahey v. Virginia, 135 U. S. 662).” People ex rel. Reynolds v. Common Council, 140 N. Y. 30; Lewis Publication Co. v. Lenz, 86 App. Div. 452.
There is no allegation in the answer that the Locomobile Company did not, subsequently to the making of the contract and before the commencement of the action, obtain the authority to do business. Such omission is fatal.
Assuming all that the pleader set forth, no valid defense is alleged.
It was error to set aside the judgment upon the ground that plaintiff cannot maintain the cause of action. Such a defense is an affirmative one, unless the facts upon which it may be predicated are declared in the complaint, in which case a demurrer would lie. Emmerich Co. v. Sloane, 108 App. Div. 330; C. R. Parmele Co. v. Haas, 171 N. Y. 583.
Order reversed and judgment directed to be entered in favor of plaintiff, with costs and disbursements to appellant in this court and the court below.
Scott, J., concurs in result.
Order reversed, with costs and disbursements to appellant in this court and the court below.