Schmidt v. Nelke Art Lithograph Co. — 37 N.Y.S. 1138

Majority

p. 1138

SCHMIDT v. NELKE ART LITHOGRAPH CO.

(City Court of New York, General Term.

March 16, 1896.)

Headnote

Goods Sold and Delivered—Action against Corporation.

Recovery cannot be had, in an action against a corporation, for goods sold and delivered, it appearing that it was not incorporated till several months after the sale and delivery.

Appeal from trial term.

Action by John M. Schmidt against the Nelke Art Lithograph Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FITZSIMONS, CONLAN, and O’DWYER, JJ.

J. George Flammer, for appellant.

Albert E. Henschel (Fromme Bros., of counsel), for respondent.

This action is for goods sold and delivered to defendant, a corporation, and the answer is a general denial. Under the issue so framed, the plaintiff was required to prove that he' sold and delivered the goods in question to the defendant. The entire testimony shows that he did not do so, and could not have done so, for the simple reason that the defendant was not incorporated until several months after such sale and delivery. Evidently, the sale was made to Mr. Nelke, who did business under the name of the Nelke Company, even, perhaps, under a name like defendant’s name; but that fact would not entitle him to judgment against the defendant. The plaintiff is correct in his contention that he is not required to, prove the defendant’s incorporation, because defendant did not specifically deny its incorporation. He was, nevertheless, under the issues framed, as before stated, required to prove a sale and delivery of the goods to the defendant corporation. The justice who tried this case dismissed the complaint because of .plaintiff’s failure to prove such sale and delivery to defendant, and he was right in doing so.

Judgment affirmed, with costs. All concur.