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Bank of Toledo v. International Bank

21 N.Y. 542 Court N.Y. English

Delivered by Denio, J.

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p. 583
Bank of Toledo v. International Bank.

Headnote

Proof of corporate capacity.
In an action hy a foreign corporation against one who had dealt with it as such, a user of corporate franchises, under color of a statute of the state where it is located, is sufficient evidence that it is a corporation defacto.
Appeal from the general term of the Superior Court of the city of Buffalo, where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.
On the trial of this case, the defendant moved for a nonsuit, on the ground that the plaintiff had not proved that it was a corporation, upon which question an issue had been raised by the pleadings. It was objected, that there was no evidence that the governor of Ohio had issued his proclamation, declaring the plaintiff to be a corporation, as- prescribed by the laws of Ohio. The defendant excepted to the refusal of a nonsuit; and the judgment entered on the verdict having been affirmed at general term, this appeal was taken.
Talcott, for the appellant.
Oanson, for the respondent.

The only question arising upon this appeal is, whether the plaintiff sufficiently proved itself to be a corporation, under the laws of the State of Ohio. The statute of that state authorized individuals to associate and form banking companies, by signing and acknowledging a certificate stating ^certain particulars, and causing it to be recorded in the office of the recorder of the county. The act further provides for an

p. 584
examination of the institutions which shall have recorded certificates, by the bank commissioners, or a special agent appointed by them, to ascertain whether they have complied with the act; and the commissioners are to certify to the governor as to such as shall have been approved of, and if he is also satisfied that the law has been complied with, he is to issue his proclamation, setting forth that they are authorized to commence and carry on the business of banking.

The plaintiff (the issue being on its having been created a corporation) proved that a certificate, containing the requisites mentioned in the act, had been recorded in the proper county, in the year 1845; and it examined its cashier, who proved that it had been doing business as a bank, under its articles of association, at Toledo, for several years last past, and that the defendant, during all that time, had acted as its collecting agent at Buffalo, corresponding with it and' addressing it letters under its corporate name. The supreme court held the proof sufficient, and the plaintiff recovered.

I am of opinion, that the judgment was in accordance with the decisions of this court in the cases of The Methodist Episcopal Church v. Pickett ( 19 N. Y. 482 ), and Eaton v. Aspinwall (Id. 119), and that it ought to be affirmed.

Judgment affirmed.[1]

1 See Buffalo and Allegheny Railroad Co. v. Cary, 26 N. Y. 75 ; Leonardsville Bank v. Willard, 25 Ibid. 574; Hyatt v. Osmond, 37 Barb. 601 . But a party who has dealt with a corporation as such, is only estopped from denying the incorporation, when the same is properly pleaded. Howe Machine Co. v. Robinson, 7 Daly 399 .

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