Independent Trembowler Young Men's Benev. Ass'n v. Somach

Majority

p. 495

(52 Misc. Rep. 538)

INDEPENDENT TREMBOWLER YOUNG MEN’S BENEV. ASS’N v. SOMACH.

(Supreme Court, Appellate Term.

February 11, 1907.)

Headnote

1. Trial—Dismissal—Failure of Proof.

Where, in an action for breach of contract, there was no issue as to plaintiff’s legal capacity to sue, it was not error to refuse to dismiss for plaintiff’s failure to prove legal capacity to sue.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 360.]

2. Parties—Capacity to Sue—Answer.

Plaintiff’s want of legal capacity to sue must be raised by answer, where it does not affirmatively appear from the pleadings that plaintiff had capacity to sue, as in that case the objection cannot be taken by demurrer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Parties, § 118.]

3. Corporations—Contract—Actions—Officers—Evidence.

In an action by a corporation ofL an oral contract, it was not error to receive oral evidence as to thS' official standing and authority of those who entered into the contract with defendant on plaintiff’s behalf and in its name, since plaintiff, by suing for breach of the contract, ratified the same.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 1736.]

p. 496

4. Damages—Breach of Contract—Evidence.

Where, in an action for breach of a contract for the renting of a hall on a certain evening for a ball, there was no evidence that plaintiff at; tempted to secure another hall for the same night, nor that plaintiff had suffered more than nominal damages, with the exception of the sum deposited at the time the contract was made and the sum paid to watchers to warn people that the ball would not be held there that night, plaintiff was not entitled to recover more than nominal damages.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by the Independent Trembowler Young Men’s Benevolent Association against Morris Somach. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLBEVF, MacLEAN, and AMEND, JJ.

Henry Kuntz, for appellant.

Rouis M. Block, for respondent.

Upon oral complaint the plaintiff claimed for breach of contract, and the defendant orally interposed a general denial, payment of breach of contract. There was, therefore, no issue as to the legal capacity of the plaintiff to sue, and the refusal of the. trial justice to dismiss, upon motion by the defendant, for failure of the plaintiff to prove legal capacity, was not reversible error. The proper practice for the defendant was to interpose that objection by answer, as all that may be said is that it does not affirmatively appear from the pleadings' that the plaintiff has capacity to sue, which would not be ground for demurrer. Phoenix Bank v. Donnell, 40 N. Y. 410 .

Nor was it reversible error herein to receive oral testimony as to the official standing and authority of those who on behalf and in the name of the plaintiff entered into a contract with the defendant, because by suit upon that contract and for its breach the plaintiff has ratified and so authorized their acts. Wilmot v. Richardson, 4 Abb. Dec. 614; Shoninger v. Peabody, 57 Conn. 42 , 47, 17 Atl. 278 , 14 Am. St. Rep. 88 .

The trial justice rendered judgment in favor of the plaintiff for $120 damages, $2 costs, and $15 extra costs; but the evidence of damage was insufficient. There is no evidence of any attempt by the plaintiff to secure another hall for the same night on which the defendant had contracted to furnish the hall of which he testified he was the lessee, no sufficient evidence to support the' cost of printing testified to by the plaintiff, or proof that the printing was a total loss in consequence of ■the return in part of tickets sold for the evening recited in the contract; in a word, with .the exception of the sum deposited at .the time of the contract, and possibly the sum paid to watchers at the entrance to the hall of the defendant to warn people that the ball would not be held there that night, there was no evidence to warrant more than nominal damage for the breach of the contract herein. The judgment should therefore be reversed,.and a new trial ordered, with costs to appellant .to abide the event.

Judgment, reversed,, and new. trial .ordered,, with', costs to. appellant to abide the event. All concur. ■

Cases cited

Phœnix Bank v. Donnell 40 N. Y. 410 N.Y. 1869-06-12 p. 496