Majority
p. 573Chandler v. Erie Transfer Co. (City Court of New York, Special Term. September 24, 1890.)
Headnote
Corporations—Actions against—Pleading.Where a corporation has been permitted to interplead, and has been substituted as defendant in the action, a supplemental complaint filed by plaintiff against it, which fails to state whether it is a foreign or domestic corporation, and, if the latter, the state or government by which it was incorporated, as required by Code Civil Proc. N. Y. § 1775, is fatally defective, and a demurrer to such complaint will be sustained.
Action by plaintiff, Chandler, against the Erie Bailroad Company, for coaling defendant’s ferry-boats. Defendant paid the sum alleged to be due into court, and obtained an order substituting as defendant the Erie Transfer Company, a New Jersey corporation, which claimed the money for the same serv
p. 574
ices. A supplemental complaint was served on the substituted defendant, and leave given it to answer within six days. The substituted defendant demurred to the supplemental complaint, on the ground that it failed to state a cause of action. Plaintiff now moves for judgment on the demurrer as frivolous.
Campbell <& Murphey, for plaintiff. A. W. Kent, for defendant.
The Code, § 1775, requires the complaint by or against a corporation to state whether it is a domestic or foreign corporation, and, if the latter, the state, country, or government by or under whose laws it was created. See, also, Clegg v. Union, 8 Civil Proc. R. 401; Bank v. Doying, 11 Civil Proc. R. 61. For failure to observe this provision, the complaint is defective, and the demurrer well taken. The demurrer is a plea, and was neither waived nor excluded. Motion for judgment denied, with leave to the plaintiff to amend on payment, within six days, of $10 costs.