Majority
p. 660The Havana City Railway Co. et al., Plaintiffs, v. Juan M. Ceballos et al., Defendants. (Supreme Court, New York Special Term, December, 1898.)
Headnote
1. Practice — Authority to sue for a foreign corporation — Its existence not in issue, nor the power of its president to direct suit.Upon a motion by a defendant to compel the plaintiff’s attorneys to produce their authority for bringing an action for their client, a foreign corporation, and to disclose the addresses and residences of certain individual plaintiffs, and to make the latter give security, if nonresidents, the court will not go into the question whether the foreign corporation has forfeited its charter, and, if such a contention is available, it must be raised by answer; nor upon such a motion will the court pass upon the question whether the president and trustee for the stockholders has authority to authorize an action by the corporation.
8. Same — Insufficient description of a party’s residence.
A description of the residence of an individual plaintiff, as being in the “ city, county and state of New York ”, is too vague.
This was a motion by defendants to compel the plaintiff’s attorneys to produce their authority for commencing this action in the name of the corporation plaintiff, and to disclose the address and place of residence of the individual plaintiffs, and if said individual plaintiffs are nonresidents then to require that security for costs be given. The railway company was a corporation organized under the laws of a foreign state; one of the individual plaintiffs was a nonresident. The residence of the other individual plaintiff is as stated to be in the “ city, county and state of Hew York.”
Kisch & Roberts, for plaintiffs.
Adams & Adams, for defendants.
I cannot on this motion consider the question whether or not the Havana City Bailway Company has ceased to exist under th'e laws of West Virginia. Although it may have failed to pay its taxes and has thereby subjected itself to the forfeiture of its char
p. 661
tecr, there is grave doubt whether that contention can prevail in the present action. Lumber Co. v. Ward, 30 W. Va. 43 . H it can be maintained, it must be raised by answer. The attorneys for the plaintiffs show that their authority to represent the plaintiff corporation is derived from Hugh Alexander, who is alleged to be its president and the trustee for its stockholders. Whether he is in fact such president and trustee, or whether, being president and trustee, he had power to authorize the commencement of the action are questions which do not arise on the present motion, which is directed solely to obtaining information. The residence of Hugh Alexander is also given with sufficient particularity. To this extent the defendants’ demand for information is already complied with. Not so, however, as to .the plaintiff Sweeney. A careful reading of the complaint does not show that he is a necessary party to the action, and it is doubtful whether he is even a proper party. His residence is given very generally as being in the “ city, county and state of New York.” The affidavits show that the defendants have -exhausted all the usual methods of finding him, if he is a resident of this city, but without success. It can do- the plaintiffs no harm to disclose the particulars as to Mr. Sweeney’s residence, unless, indeed, as was intimated upon the argument, he has been joined as plaintiff merely to obviate giving security for costs, the other plaintiffs being admittedly nonresidents. If any such purpose exists the defendants are certainly entitled to such information as will enable them to ascertain, and, if necessary, test the fact of his residence. Motion granted to the extent of requiring plaintiffs’ attorneys to furnish to defendants’ attorneys the address and place of residence of the plaintiff Eugene Sweeney.
No costs. Settle order on notice.