Adams v. Lamson Consolidated Store-Service Co.

state of Massachusetts. The complaint contains no distinct averment that the defendant is a corporation, nor does it contain any averment as to plaintiff’s present residence. The grounds of demurrer are stated to be (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that it does not state facts sufficient to'show that the court has jurisdiction of the defendant, or of the subject of the action. The demurrer is based on section 1775 of the Code, which states what must be averred in the complaint in an action by or against a corporation; but the difficulty is that the defendant requires us to assume that it is a corporation. How, although we may naturally suppose from the name of the defendant that it probably is a corporation, still there is no allegation to that effect in the complaint. The defendant may be a partnership or a joint-stock association. True, if that were the case, the plaintiff’s action might have been improperly brought. But that is not the question here. All we have to decide is whether the complaint is demurrable. In Fox v. Preserving Co., 93 N. Y. 54 , an action had been commenced in justice court, and in the complaint in that court there was no allegation that defendant was a corporation. The cause was removed to the supreme court after plea of title; and in the complaint in that court an allegation was inserted that defendant was a corporation. A motion was made to strike this allegation out, under section 2957. The court of appeals held it ought not to be stricken out, saying: “The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character and capacity of the defendant.” If this be correct, demurrer could not be sustained in this present case on the ground that the complaint does not state facts sufficient to constitute a cause of action; for, if the allegation that the defendant is a corporation is no part of the cause of action, then the absence of that allegation cannot be ground of a demurrer for insufficiency. In harmony with this is a dictum in Society v. Foote, 5 N. Y. Supp. 236 , and the decision in Bank v. Corbett, 10 Abb. N. C. 85 . In Furniture Co. v. Grumme, 10 Civil Proc. R. 176, the complaint alleged that plaintiff was a corporation, but did not allege whether it was foreign or domestic. The court held the complaint good on demurrer, referring to the rule as being the same under the former Code. Bank v. Donnell, 40 N. Y. 410 . See, also, Rotkchild v. Railway Co., 10 N. Y. Supp. 36 . We have not overlooked the decisions cited by the defendant holding a different rule. It is not necessary to cite or comment on them. As to the point of the demurrer that the court has not jurisdiction of the subject, or of the person of the defendant, we do not see that this appears by the complaint. Facts may perhaps appear on the trial which will showa-want of jurisdiction. We understand that the defendant relies on section 1780 of the Code. It may be also that the defendant, under section 546, may require the complaint to state the corporate existence of defendant (if defendant be a corporation) more fully. We have, however, only to pass on the question of the demurrer. Judgment affirmed, with costs, with leave to defendant, in 20 days after notice of judgment, on payment of costs below and of this court, to withdraw demurrer, and answer over. All concur.