Majority
p. 749(8 Misc. Rep. 490.) ABRAM FRENCH CO. v. MARX. (City Court of New York, General Term. May 18, 1894.) Argued before EHRLICH, C. J., and VAN WYCK, J.
Headnote
•Judgment—Motion to Vacate.An application to vacate a judgment will not be granted where it was founded, not on a meritorious defense, but on a technical objection to plaintiff’s capacity to sue, and such objection did not appear on the face of the complaint.
Appeal from special term.
Action by Abram French Company against Philip Marx. From an order setting aside a judgment, plaintiff appeals. Reversed.
Hayes & Greenbaum, for appellant.
Samuel Mullen, for respondent.
The application made by the defendant was for an order vacating and setting aside the judgment herein, and not. to open the default as á matter of favor. The application was not founded on any defense meritorious in its character, but upon a technical objection as to the plaintiff’s capacity to sue. The ob
p. 750
jection did not appear on the face of the complaint, and was one that could not be urged by way of demurrer, but, in the nature of things, would have to be taken advantage of by special plea in the answer, calling upon the plaintiff to make proof that it had the necessary legal authority to transact business in this state. We think the application made below should have been denied, if it was granted as matter of right. Such decision would be erroneous, and, if granted as a matter of favor, the discretion was not wisely exercised. In either case, the order appealed from would have to be reversed, with costs.