facts so alleged and stated, and if any defendant controverts any allegation or statement contained in said certificate of title, abstract, or searches, or survey, the facts controverting such allegation or statement must be specifically pleaded and set forth, and except as in this section otherwise provided must be established affirmatively by the defendant pleading or setting forth the same. * Where a party has controverted in his pleading specifically an allegation or statement contained in said certificate of title, abstract, searches or survey, any party who has appeared in person or by attorney or counsel at the trial may require that the ordinary rules of evidence and proof, unaffected by this section, shall apply to the matters so controverted." * * The learned counsel for the applicant asks us to construe this as meaning that, if a defendant has answered specifically controverting any allegation or statement contained in either of the papers above specified, the burden of proof is upon him to affirmatively establish the specific allegations of his answer, and that, in this case it devolved upon the defendants, the people of the state of New York, to affirmatively prove that defendant had no such title. If we are right in our previous construction of the act, to the effect that the provisions of section 389, requiring the specific statement of the interest of the answering defendant, does not apply to the people, the effect of this amendment need not be considered. But, if we are wrong in this respect, the answer of defendant did contain statements specifically controverting applicant's claim of title, and at the beginning of the trial the learned Attorney General gave notice that he should require that the ordinary rules of evidence and proof, unaffected by this section, should apply to the matters controverted, to wit, the sufficiency of applicant's title. The learned counsel for the applicant contends that this only means that a party defendant who has interposed such an answer must, upon the demand of any other party, either plaintiff or codefendant, establish his affirmative allegations by proof of this character. This construction of the act would make the provision in question meaningless. The only proof by which any party except the applicant could establish his contention would be by the ordinary rules of evidence and proof, unaffected by this section. The only person whose character of proof is thereby affected is the applicant. To construe it as appellant contends it should be construed would be to say in effect that a party defendant must, upon the demand of any other party to the proceeding, establish his allegations by the only character and quality of proof that under any circumstances, and with such demand or without it, would be available to him. We acquit the Legislature of any such foolish intention. After such demand, the burden was on the applicant to establish her alleged title by the ordinary rules of evidence and proof. She made no attempt to do so, and was properly dismissed. The judgment appealed from must be affirmed, with costs. All con cur. (79 Misc. Rep. 421.) AMERICAN INK CO. v. RIEGEL SACK CO. (Supreme Court, Appellate Term, First Department. February 14, 1913.) 1. CORPORATIONS (§ 661*)-FOREIGN CORPORATIONS-ACTIONS-NONCOMPLIANCE WITH STATUTORY PROVISIONS. Under General Corporation Law (Consol. Laws 1909, c. 23) § 15, providing that no foreign stock corporation doing business in the state shall maintain any action on any contract made in the state, unless, prior to the making thereof, it shall have procured from the Secretary of State a certificate authorizing it to do business as therein provided, such a corporation which has not complied with that section may, when sued, set up a counterclaim arising out of the contract sued on, but not one which does not arise out of that contract. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2539, 2543, 2544, 2546, 2563-2567; Dec. Dig. § 661.*] 2. CORPORATIONS (§ 661*) -FOREIGN CORPORATIONS-ACTIONS-NONCOMPLIANCE WITH STATUTORY PROVISIONS. Under Tax Law (Consol. Laws 1909, c. 60) § 181, providing that no action shall be maintained "or recovery had" by any foreign corporation, subject to the license fee thereby imposed, without obtaining a receipt for such license fee, a corporation which has not complied therewith cannot, when sued, set up any counterclaim, whether or not it arises out of the contract sued on. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2539, 2543, 2544, 2546, 2563-2567; Dec. Dig. § 661.*] Appeal from City Court of New York, Special Term. Action by the American Ink Company against the Riegel Sack Company. From an interlocutory judgment overruling in part defendant's demurrer to two separate defenses set up in the reply to defendant's counterclaims, defendant appeals. Affirmed. Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. King & Booth, of New York City (Frederick P. King, of New York City, of counsel), for appellant. Clarence J. Shearn, of New York City (Macdonald De Witt, of New York City, of counsel), for respondent. GERARD, J. This action was brought to recover the sum of $1,369.26, alleged to be the agreed price and reasonable value of certain inks sold and delivered by plaintiff to defendant. The defendant's answer includes two counterclaims, the first of which demands judgment against the plaintiff for $1,174.19 because of the alleged breach of warranty of some of the ink alleged to have been sold to defendant by plaintiff. The second counterclaim demands judgment against the plaintiff because of the alleged breach of warranty of certain other inks sold and delivered by plaintiff to defendant, but not included in the goods for the price or value of which this action was brought. Plaintiff pleaded two defenses to each of these counterclaims; the two defenses being in each case the same, and these were, first, that the defendant is a foreign stock corporation doing business in this state, and had failed to obtain a certificate of authority as prescribed by the provisions of section 15 of the General Corporations Law (Consol. Laws 1909, c. 23); and, second, that the defendant has failed to comply with the provisions of section 181 of the Tax Law (Consol. Laws 1909, c. 60), providing for the payment of a license tax by a foreign corporation engaged in business in this state. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes [1,2] To these two defenses to each counterclaim the defendant demurred, and the following questions were therefore presented: Where the counterclaim arises out of a contract upon which the action is brought, first, is failure by the corporation to comply with the provisions of section 15 of the General Corporations Law a defense; and, second, is failure by the corporation to comply with the provisions of section 181 of the Tax Law a defense, and, where the counterclaim does not arise out of the contract upon which the action is brought, is the failure of the corporation to comply with these two laws above set forth a defense? The court below held that one of these defenses only was bad, namely, the defense which sets up that failure to comply with the provision of section 15 of the General Corporations Law providing for the certificate of authority for a foreign corporation was a defense to a counterclaim arising out of the contract upon which the action is brought. The court, therefore, held that failure by a foreign corporation to comply with the provisions of section 181 of the Tax Law is a defense even to a counterclaim growing out of the contract on which the action is brought, and that this was also a defense to a counterclaim set up as an independent cause of action, as was also the failure of the corporation to comply with the provisions of section 15 of the General Corporations Law, providing for the obtaining of a certificate by foreign corporations doing business in this state. The language of this statute (section 15 of the General Corporations Law) is that no foreign stock corporation doing business in this state "shall maintain any action in this state on any contract made by it in this state" before obtaining a certificate of authority; while section 181 of the Tax Law is broader, in that its application is not limited to any class of actions and the prohibition is expressed in the words: "No action shall be maintained or recovery had." The court below correctly sustained defendant's demurrer to the first separate defense to the first counterclaim on the ground that section 15 of the General Corporations Law did not prevent a foreign corporation from recovering upon a counterclaim arising out of the transaction upon which the plaintiff sued on the authority of Alsing v. New England Quartz Co., 66 App. Div. 473, 73 N. Y. Supp. 347, affirmed without opinion in 174 N. Y. 536, 66 N. E. 1110, as this case expressly held that section 15 did not prevent a foreign corporation when sued from recovering on a counterclaim "arising out of the transaction that had been made the basis of plaintiff's complaint." The language of section 181 of the Tax Law has been construed in no case in the state of New York, except in the Alsing Case above stated, where the Appellate Division said that the language used was more comprehensive than the language used in section 15 of the General Corporations Law, and where the difference in the statutes was pointed out. It seems to me that the words "or recovery had," used in addition to the words "no action shall be maintained," makes it plain that the Legislature intended that the corporation which had not complied with section 181 of the Tax Law should be entitled to obtain no relief in the courts of this state, either as plaintiff or as defendant alleging a counterclaim, and this whether the counterclaim arose out of the contract on which plaintiff sues or not. As to the defense which pleads the failure to comply with section 15 of the General Corporations Law as a defense to the counterclaim which did not grow out of the contract on which plaintiff sued, it has been held in Wood & Selick v. Ball, 190 N. Y. 217, 83 Ν. Ε. 21, that, where a foreign corporation doing business in this state seeks to recover on a contract made in this state, compliance with section 15 is a fact which must be alleged in the complaint in order to state facts sufficient to constitute a cause of action, and must be proved on the trial in order to establish a cause of action in the courts of this state. In determining this question the fact must not be lost sight of that a counterclaim must contain all the elements of a cause of action. Code, § 501; Cragin v. Lovell, 88 N. Y. 258. The interlocutory judgment appealed from should be affirmed, with $10 costs and disbursements. All concur. (155 App. Div. 252.) SHAW v. SHAW. (Supreme Court, Appellate Division, Second Department. February 14, 1913.) 1. DIVORCE (§ 129*) -ADULTERY-GROUNDS. Circumstantial and indirect proof of adultery, relied on as a ground of divorce, is not necessarily conjectural or speculative. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 411-441, 454; Dec. Dig. § 129.*] 2. EVIDENCE (§ 43*)-JUDICIAL NOTICE-JUDICIAL RECORDS. The Supreme Court may take judicial notice of proceedings in the action which appear from its own records. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*] 3. APPEAL AND ERROR (§ 837*)-RECORD-EVIDENCE. Evidence which is only brought to the court's attention by the opinion on a former trial cannot be considered on the present appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 32623278; Dec. Dig. § 837.*] Appeal from Special Term, Kings County. Action by Gertrude L. Shaw against William Barrett Shaw. From a judgment for plaintiff, defendant appeals. Affirmed. See, also, 140 N. Y. Supp. 388. Argued before JENKS, P. J., and HIRSCHBERG, THOMAS, CARR, and RICH, JJ. William Ford Upson, of New York City (William Forse Scott and Francis J. McLoughlin, both of New York City, on the brief), for appellant. Robert F. Manning, of Brooklyn, for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes JENKS, P. J. We should not disturb the judgment. [1] As adulterous acts are naturally secret and clandestine, so proof thereof may naturally be circumstantial and indirect. But that kind of proof, legally speaking, is not necessarily described as conjecture, surmise, guess, or speculation, and the proof in this case is not thus to be catalogued, and hence condemned. While there is no proof of the specific act, even the undisputed evidence affords every indication of guilty relations at the time and place specified. It is, of course, possible that the act itself was not committed, but cogent appearances were entirely against any probability that it was not, and such a possibility was suggested only by the denials of the parties themselves, accompanied by explanations which seem to us incredible. [2] This court, however, may take judicial notice of certain proceedings in this action, which appear from its own records. Farmers' Loan & Trust Co. v. Hotel Brunswick Co., 12 App. Div. 628, 42 N. Y. Supp. 693; People ex rel. Platt v. Rice, 80 Hun, 442, 30 N. Y. Supp. 457; 4 Wigmore on Evidence, p. 3615; Beer's Stephens Digest of Evidence, p. 253; 1 Rice on Evidence, pp. 18, 19; 1 Chamberlayne's Mod. Law of Evidence, pp. 849, 850. After the interlocutory judgment in favor of plaintiff was signed, a motion was made to set it aside, and the co-respondent obtained an order to show cause why she should not be examined by a physician or physicians to be appointed by the court. An order was entered appointing a woman physician to examine the alleged co-respondent as to her virginity. That examiner reported in an ambiguous way at first, and then made a supplemental report that the co-respondent might or might not be a virgin, adding, "Being in doubt, I cannot condemn her." After the denial of the said motion, the co-respondent applied at Special Term for an order to settle the issue of fact herein for trial by jury. She submitted affidavits of three physicians, who went into the details of their examinations. One deposed that her general appearance was that of a virgin, and two that in their opinion she was a virgin. The order was denied, and on appeal was affirmed, December 30, 1912, with the following memorandum: "This order is affirmed for the reason that there is an interlocutory judgment herein. But the affirmance is not upon the merits, and is without prejudice to an application to the Special Term to set aside or to vacate or to open the interlocutory judgment, or the final judgment if it has been entered herein, and for the relief sought for by this motion." [3] Although, as I have said, the court may thus notice its records, yet it cannot, I think, consider that such medical testimony is in this record now up for review. Chamberlayne's Mod. Law of Evidence, supra, citing Cleveland, Columbus, Cincinnati & Indianapolis R. Co. v. Wynant, 134 Ind. 691, 34 Ν. Ε. 569. The possibility of innocence might have prevailed to judgment if the denials had been supported by such medical evidence. Indeed, the opinion of the court begins: "Upon the trial I entertained no doubt that the purpose of the defendant respecting the co-respondent was adulterous, but I hesitated to believe that purpose shared by her. I give no credit to the evidence of the detectives so far as they are contradicted, nor to the evidence of Mrs. Haggerty. But re |