FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. forty-three cents, and Defendant's principal plaintiffs of the value of fifty-six dollars and seeks to recover as a counterclaim therefor. place of business is in the city of New York. In August, 1892, at No. 41 Dey street, the plaintiffs had an office for the transaction of business, and at that date and from that place made the proposal to the defendant, whose principal office was at No. 18 Broadway, to furnish the defendant with vertical automatic engines to be delivered as called for F. O. B., dock New York, and to furnish an engineer to operate each engine for three hours after it was erected; that proposition led to further correspondence and negotiations between the parties and to a contract for the two engines mentioned in the complaint. Baldwin & Baldwin, for the appellants. Edwin C. Ward, for the respondent. HARDIN, P. J.: It is very clear from the appeal book that the contract entered into between the parties in respect to the two engines mentioned in the complaint was made in the city of New York, and it is appar ent that the principal transactions, which are made the subject of inquiry by the issues of fact joined, occurred in the city of New York. In Goodrich v. Vanderbilt (7 How. Pr. 467) it was held that the place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, unless the preponderance of witnesses is so great as to warrant the court to retain the place of the trial in another county. Rule 48 of the General Rules of Practice authorizes a party who seeks to change the place of trial to state the nature of the controversy and to show how his witnesses are material, and to "show where the cause of action or the defense or both of them arose ;" and it then provides that "those facts will be taken into consideration by the court in fixing the place of trial.” We think the Special Term properly gave weight and force to the circumstance that the cause of action. accrued in the city of New York, and that the principal transactions which are involved in the issue of fact arose in that city and county. Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. (2) Upon an inspection of the pleadings and the affidavits used at the Special Term we see there was a substantial conflict in respect to the issues of fact presented by the papers to the Special Term, and that the Special Term was called upon to exercise its judgment, as well as its discretion, in determining whether the convenience of witnesses would be best subserved by a trial in the county of Chemung or in the county of New York. We are not prepared to say that the discretion of the Special Term, upon all the papers produced there, was abused or improperly exercised. It has been held in numerous cases that the discretion, when exercised, will not be disturbed "unless it clearly appears that it was improperly exercised." In Gilbert v. Shortsville Cart Company (39 N. Y. St. Repr. 763) this court held that the discretion of the Special Term, granting or refusing a motion, would not be disturbed unless it clearly appears that it was improperly exercised. And in Reuben v. Andorsky 39 N. Y. St. Repr. 764) we applied the same rule. That rule was also approved in the following cases: Schmidt v. Rochester Lithographic & Printing Co. (31 N. Y. St. Repr. 258); Carpenter v. Continental Ins. Co. (31 Hun, 78); McConihe v. Palmer (76 id. 116); Cromwell v. Romer (18 Wkly. Dig. 440); Fitzgerald v. Payn (78 Hun, 38). In Lane v. Town of Hancock (29 N. Y. St. Repr. 635) it was said: "Unless there has been a plain and evident misuse of such discretion the decision of the Special Term must stand." That rule was quoted and approved in Nelson v. Nelson (50 N. Y. St. Repr. 446). We have carefully looked into the affidavits and attended to the criticisms made thereon by the appellants, and we are of the opinion that, notwithstanding the criticisms made thereon, the Special Term was called upon to exercise its discretion and judgment in respect to the convenience of witnesses, and that the result reached at the Special Term does not indicate any impropriety in the action of the Special Term or any abuse of its discretion; we, therefore, should affirm its order. MARTIN and MERWIN, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. 88 254 1ap346 88 254 Бар562 8ap448 88 254 20a p555 88 254 25ap116, 88h 254 64ad141 FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. NOVELTY MANUFACTURING COMPANY, Respondent, v. LANSING W. Foreign corporation — what constitutes the transaction of business in the State of New Where an order for goods was given to a foreign corporation outside the State of New York, and a portion of such goods was shipped on January 4, 1893, to the State of New York by such corporation, the corporation cannot be said by reason thereof to have been doing business in the State of New York within the meaning of section 15 of chapter 687 of the Laws of 1892. The restriction contained in section 15 of chapter 687 of the Laws of 1892 prohibiting a foreign corporation, doing business within the State of New York without a certificate, from maintaining any action in the State upon any contract made by it in the State until it shall have procured such certificate, relates only to contracts made within the State of New York. The taking of a promissory note by a creditor does not extinguish the debt. Where there is a failure to pay the note the creditor has the right to bring an action on the original obligation and produce the note on the trial to be delivered up. The liability imposed upon the directors of a corporation for a failure to file the annual report, required by section 30 of chapter 688 of the Laws of 1892 is a liability created by the statute in the form of a penalty for specific acts of disobedience. Where an annual report of a corporation, made in pursuance of the provisions of chapter 688 of the Laws of 1892, is verified by a person who is both the vice-president and treasurer of the corporation, the verification is not irregular under section 30 of such act because the person verifying the same did not make separate oaths as vice-president and as treasurer. APPEAL by the defendants, Lansing W. Connell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 11th day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Onondaga Circuit. The plaintiff is a foreign corporation organized under the laws of the State of Connecticut. Hancock, Beach, Peck & Devine, for the appellants. George H. Sears, for the respondent. FOURTH DEPARTMENT, JULY TERM, 1895. Hun.] HARDIN, P. J.: Plaintiff's complaint states a sale of goods to, and thereby the creation of a debt in its favor against, the Syracuse Bamboo Furniture Company, a stock corporation organized under the laws of this State and having its principal place of business at Baldwinsville, in the county of Onondaga. The complaint also states that a judgment was recovered against the furniture company, and an execution on the judgment issued and returned wholly unsatisfied prior to the commencement of this action, and that the company is wholly insolvent. Defendants were directors of the company in 1892 and 1893, and this action is brought to collect plaintiff's debt of them by reason of their alleged statutory liability arising from a non-compliance with the statute as to annual reports of the officers of the company. Defendants' answer admits the incorporation of the plaintiff and the incorporation of the Syracuse Bamboo Furniture Company, and that it was a stock corporation, and that, at the times mentioned in the complaint, the defendants were directors of the furniture company. It also admits that said furniture company "did not within the month of January, 1892, or at any other time prior to the 30th day of January, 1893, make a report and file the same in the office of the Secretary of State or in the office of the clerk of the county where its principal business office was located; that said company neglected to file any annual report required by law previous to the 31st day of January, 1893; that the defendants did not make and file a report with the Secretary of State within thirty days after 1st day of January, 1892, or the 1st day of April, 1892, or at any other time, a verified certificate stating they, or either of them, had endeavored to have such annual report made and filed, and that the officers or majority of the directors had refused and neglected to make and file the same." They also admit the recovery of a judgment by plaintiff on account of said sale against the company for $534.43 and the docketing of the judgment, and that an execution was issued to the sheriff of Onondaga county before the commencement of this action and that it was returned wholly unsatisfied. When the proofs were all before the court a verdict was directed for the plaintiff for $566.94, being $514 debt and $52.94 interest thereon. Defendants challenge plaintiff's right to recover $90.38 of the debt which was for goods sold FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. and delivered January 4, 1893, and insist that the plaintiff had not complied with chapter 687 of the Laws of 1892. That chapter was approved May 18, 1892. In its section 15 it is provided that "No such corporation now doing business in this State shall do business herein after December 31, 1892, without having procured such certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the State subsequent to such date." The principal order for goods given to the plaintiff was November 1, 1892. It was delivered to plaintiff at Waterbury, Connecticut, and the goods were shipped from that State to the furniture company. The plaintiff was not thereby doing business within this State within the terms of the act, by making the shipment of January 4, 1893. (Murphy Varnish Co. v. Connell et al., 10 Misc. Rep. 553.) We think the objection is unavailing to the defendants. (Lancaster v. A. I. Co., 140 N. Y. 576; Demarest v. Flack, 128 id. 205; Providence Steam & Gas Pipe Co. v. Connell, 86 Hun, 319; S. C., 33 N. Y. Supp. 482.) It is provided further in section 15: "No 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 until it shall have procured such certificate." That restriction seems to relate to contracts made in this State. However, the Secretary of State issued to plaintiff the certificate required by the statute January 10, 1893. This action was not brought until the 23d of January, 1894. We think the objection to the item of ninety dollars and sixty-eight cents was properly overruled by the trial court. (Bertha Zine & Mineral Co. v. Clute, 7 Misc. Rep. 123.) (2) No error was committed in refusing to treat the unpaid promissory note of the bamboo company as a payment upon the indebtedness held by the plaintiff against it. The note was long past due and unpaid when this action was commenced, and could not be used to relieve the defendants of their liability for the indebtedness which accrued in favor of the plaintiff while such neglect existed. (Providence Steam & Gas Pipe Co. v. Connell, supra.) The note did not merge or extinguish the debt. (Parrott v. Colby, 6 Hun, 55.) The liability of defendants here is in the nature of a penalty for failure to file a report required by the statute. (Gadsden v. Woodward, 103 N. Y. 244; Rogers v. Decker, 131 id. 492.) |