First Department, May, 1906. [Vol. 113. milk mixed with water, labeled "Buttermilk," whereupon the department of health of the city of New York, after notice to the plaintiff and after a hearing upon all the facts, revoked the license or licenses of the plaintiff to sell milk in the city of New York, as it had a right to do, and as it was its duty to do, and not otherwise. To these separate defenses demurrers were interposed by the plaintiff, which were overruled. The learned counsel for the defendants do not attack the sufficiency of the complaint, although it is somewhat difficult to see how any act of the board of health, acting under an authority conferred by the State to regulate the sale of impure and unwholesome milk in the city of New York, can impose an obligation upon the municipality. As this point, however, is not taken by the defendant, it will not be considered. The first seven permits were issued on March 10, 1896, under the Consolidation Act (Laws of 1882, chap. 410, as amd.). By section 34 of that act the board of health was created a department of the said city. Section 575 provides that the Sanitary Code "adopted and declared as such at meeting of the board of health of the health department of the city of New York, held in the city on the second day of June, one thousand eight hundred and seventy-three, as amended in accordance with law, is hereby declared to be binding and in force in said city.” Section 576 provides that the board of health "shall cause to be enforced the provisions of its Sanitary Code." In People ex rel. Lieberman v. Vandecarr (175 N. Y. 440) it was held that section 66 of the Sanitary Code, which reads, "No milk shall be received, held, kept, offered for sale or delivered in the city of New York without a permit in writing from the board of health and subject to the conditions thereof," was valid; that it was lawful for the health authorities in the city of New York to require the relator to obtain a permit under section 66 of the Sanitary Code in order to receive, hold, offer for sale and deliver milk, and failing so to do to arrest and punish him; that the vesting of powers more or less arbitrary in various officials and boards is necessary if the work of prevention and regulation is to ward off fevers, pestilence and the many other ills that constantly menace great centers of population. The board of health, thus having power to issue permits authorizing a person to carry on the business of dealing in milk in the city of App. Div.] * * First Department, May, 1906. New York, this power was continued by the subsequent charters of the city of New York. By sections 96 and 1167 of the present charter (Laws of 1901, chap. 466) the board of health is constituted. Section 1172 of the charter, as amended by chapter 628 of the Laws of 1904, provides that "The Sanitary Code which shall be in force in the city of New York the first day of January, nineteen hundred and two, and all existing provisions of law fixing penalties for violations of said code are hereby declared to be binding and in force in the city of New York, and shall continue to be so binding and in force, except as the same may, from time to time, be revised, altered, amended or annulled, as herein provided." By section 1169 it was made the duty of the board "to enforce all laws of this State, applicable in said district, to the preservation of human life, or to the care, promotion or protection of health; and said board may exercise the authority given by said laws to enable it to discharge the duty hereby imposed; and this section is intended to include all laws relative to cleanliness, and to use or sale of poisonous, unwholesome, deleterious or adulterated drugs, medicines or food, * The board of health shall use all reasonable means for ascertaining the existence and cause of disease or peril to life or health, and for averting the same, throughout said city." The board being charged with the duty of protecting the health of the inhabitants and preventing the sale of impure or adulterated food, ascertained that the plaintiff, acting under the permits which it had issued, was engaged in selling impure and adulterated milk. The board gave to the plaintiff notice of these charges, and after a hearing it revoked the permits, and to sustain the contention of the plaintiff we must hold that such permit thereby becomes irrevocable and authorizes the person to whom it was granted to continue forever to sell milk, although the conditions under which the permit was issued were continually violated, the provisions of the Sanitary Code in relation to milk sold disregarded, and that a person acting under a permit from the board of health is selling to the inhabitants of the city of New York poisonous and impure articles for food, endangering the public health. The sole authority that the health board would have, if this contention were correct, would be to prosecute the person selling the poisonous article in the shape of milk, fine him, and in the meantime such person could go on poison First Department, May, 1906. [Vol. 113. ing the people under a permit or license from the health authorities, a proposition which is so unreasonable that a mere statement is sufficient to refute it. There is nothing in either the Penal Code or the charter that makes such a permit irrevocable. The perinit itself provides that it is revocable at the pleasure of the board, and the plaintiff accepted it with that condition; there is nothing unreasonable in this condition; and irrespective of the general power of the board of health to revoke a permit which is being abused and under which the person accepting it and using it is persistently violating the law, it is certainly not an unreasonable condition to insert into such a permit a provision that it is revocable by the board that issues it. To hold that a permit once granted is irrevocable would be to totally defeat the object of the statute in requiring such a permit before a person should engage in the business of supplying to the inhabitants of a city food. We think it entirely clear that the court below was justified in overruling the demurrer, and the judgment appealed from is affirmed, with costs, with leave to the plaintiff to withdraw the demurrer within twenty days on payment of costs in this court and in the court below. O'BRIEN, P. J., PATTERSON, LAUGHLIN and CLARKE, JJ., concurred. Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below. Order filed. SOUTH BAY COMPANY, Appellant, v. WILLIAM J. HOWEY, Respondent. First Department, May 11, 1906. Corporations pleading — when foreign corporation need not allege authority to do business in this State-in order to bar suit by corporation not authorized to do business it must be shown to be a stock corporation - place of contract of insurance determined by delivery of policy a foreign corporation by insuring its buildings in this State is not doing business in this State. -- When it does not appear in the complaint of a foreign corporation suing in this State that it is a stock corporation, the complaint should not be dismissed because it does not set out that the corporation was authorized to do business App. Div.] First Department, May, 1906. in this State as required by section 15 of the General Corporation Law. The presumption is that a foreign corporation has a right to sue in this State, and none but foreign stock corporations are within the prohibition. Nor does proof at trial that the plaintiff did business within the State bring it within the prohibition of said section 15, if it be not also proved that the plaintiff was a foreign stock corporation. A provision in a policy of fire insurance that an action thereon must be brought in the Supreme Court of the county of New York is not a waiver by the insurance company of any defense available under section 15 of the General Corporation Law. A policy of fire insurance executed in this State and issued to a foreign corporation by a New York company, is not a contract made in this State within the terms of said statute, unless it is shown to have been delivered here. It is the delivery, not the execution of the contract, that determines the place where it is made. Moreover, a contract of fire insurance issued on property in this State owned by a foreign corporation, is not a contract the enforcement of which is forbidden by said statute, unless the foreign corporation be authorized to do business here. The contracts on which suit is forbidden are those made as part of a general business, and a contract for the protection of corporate property is not of that nature. O'BRIEN, P. J., and CLARKE, J., dissented. APPEAL by the plaintiff, the South Bay Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1906, setting aside the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term. John David Lannon, for the appellant. Mortimer M. Menken, for the respondent. INGRAHAM, J.: The first question presented on this appeal is whether a cause of action was alleged without an allegation that the plaintiff had obtained from the Secretary of State a certificate that it had complied with the requirements of law which authorized it to do business in this State. In Parmele Co. v. Haas (171 N. Y. 581) it is said that "when a foreign corporation brings a suit in the courts of this State and states a good cause of action in the complaint, it will be assumed 1 First Department, May, 1906. [Vol. 113. that it is rightfully in the State and properly in court until the contrary is made to appear." Welsbach Co. v. Norwich Gas & Er. Co. (96 App. Div. 52; affd., 180 N. Y. 533) held on demurrer to the complaint that obtaining such a certificate being a condition precedent to maintaining an action in the courts of this State, it was a fact necessary to be proven and, therefore, necessary to be alleged. In the opinion in the Welsbach Co. case it was stated that it appeared from the complaint that the corporation was a foreign stock corporation within the provision of section 15 of the General Corporation Law (Laws of 1892, chap. 687), as amended by chapter 538 of the Laws of 1901, and the decision of the court rested on that assumption. It, therefore, appeared from the complaint that the plaintiff was not rightfully within this State and not properly in court, and it follows that no cause of action was alleged. The fact that the plaintiff was a foreign stock corporation, within the provision of section 15 of the General Corporation Law (as amd. supra), did not appear in the complaint in this case. The only allegation in this complaint is that the plaintiff is a foreign corporation. The defendant is a resident of this State. Section 1779 of the Code of Civil Procedure provides that "An action may be maintained by a foreign corporation, in like manner, and subject to the same regulations, as where the action is.brought by a domestic corporation, except as otherwise specially prescribed by law." The complaint alleges that the plaintiff is a foreign corporation, and that being conceded, it had a right to bring this action, unless restricted by section 15 of the General Corporation Law (as amd. supra) which applies only to stock corporations. I think, therefore, that as it did not appear from the complaint that the plaintiff was a stock corporation, the motion that the complaint should be dismissed because it did not state facts sufficient to constitute a cause of action was properly overruled. It was then proved that the plaintiff did business within this State, and one of the facts necessary to bring it within the provision of section 15 of the General Corporation Law (as amd. supra) was proved, but there was no proof that plaintiff was a stock corporation. I do not know that there is any presumption of law that a membership corporation organized under the laws of the State of New Jersey could not engage in business as manufacturer of and dealer i |