Crown Point Iron Co. v. Fitzgerald — 14 N.Y. St. Rep. 427

Majority

p. 427

Crown Point Iron Company, Resp’t, v. William Fitzgerald, App’lt.

(Supreme Court, General Term,, Third Department,

Filed February, 1888.)

Headnote

1. Justice’s courts—Authority of attorney—What is sufficient proof OF.

Where a person appeared, in a justice’s court, as the attorney of a corporation in an action on an account, upon which an indebtedness accrued in their favor, and there was present, at the time of such appearance, the manager of the corporation’s store, who was sworn as a witness, Held, that the authority of the attorney was sufficiently established, although he did not swear to the fact of his authority.

2. Same—Default—Proceedings upon—Code Crv. Pro., § 2891—Limit of plaintiff’s case.

Held, that by force of Code Civ. Pro., § 2891, the plaintiff was, upon the defendant’s default, required to prove its case, but that its corporate existence formed no part of the case, and it was not necessary that it should be established by proof.

3. Same—Action by corporation—When proof of corporate existence necessary—Code Civ. Pro., 1775, 1776.

Held, that by force of Code Civ. Pro., § 1775, a corporation, being an artificial body, must give a description of itself in its complaint, so that it might be identified, but Code Civ. Pro., § 1776, provides that this need not be proven unless put in issue.

4. Same—Principles embodied in Code Crv. Pro. §§ 1775; 1776, apply to justice’s court.

Held, That the principles embodied in Code Civil Procedure, §§ 1775, 1776, had application in justice’s courts, even if the express statute provisions did not extend thereto.

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5. Same—Appeal from judgment of—Regularity of proceedings presumed WHERE RECORD IS SILENT.

Held, That on an appeal from a judgment rendered in a justice’s court upon a default, it would not be presumed that the justice did not wait an hour before proceeding to trial in the absence of any return upon that subject.

6. Evidence—Action on account—Introduction of books of account— When failure to introduce is not ground of objection.

Held, That the objection that the books of account of the corporation were not produced was not well taken, it not appearing that the sum total of the accounts which the defendant promised to pay was stated therein.

7. Same—When statement of witnesses as to sum total of account is competent.

Held, That it was not error to allow the manager of the corporation's store as a witness to state the sum total of the account.

Waldo, Grover & McLaughlin, for resp’t; P. C. Me Rory, for app’lt.

The return of the justice shows that the plaintiff appeared by Mr. Reed, who was not sworn as to his authority. But Mr. Myers also appeared as a witness, and he testified: “I am manager of the Crown Point Iron Company’s lake store; I have charge of their books; there appears by the books of the lake store that there is due from the defendant to the plaintiffs the sum of $70.59; I have looked over the account with the defendant, and he acknowledged the account to be correct and agreed to pay the same.” The defendant did not appear. The justice rendered judgment for the plaintiff for $70.59 and costs.

Although Mr. Reed was not sworn as to his authority to appear for the corporation, yet as the manager of the corporation with respect to its store, was present and sworn as a witness, we ought to presume, in order to uphold the judgment, that the corporation was present by this agent, and ratified, if that were necessary, the formal appearance of Mr. Reed. Underhill v. Taylor, 2 Barb., 348 ; Rickey v. Christie, 40 Hun, 278 .

Suppose Mr. Reed had sworn that he was authorized by Mr. Myers, the company’s manager of its store, to appear, we think that would have been regarded as sufficient authority.

We think the presence and testimony of Mr. Myers cured the omission of Mr. Reed to be sworn as to his authority.

It was not necessary for the company to prove its corporate existence. Upon the default of the defendant it was required to prove its case. Code Civ. Pro., § 2891. But its own life, existence or capacity to sue, forms no part of its case. No issue as to either of these characteristics of the plaintiff was put in issue by the default of the defendant. Since a corporation is an artificial body the statute

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requires that it must in its complaint give some description oí itself. Code Civ. Pro., § 1775.

What for ? So that it can be identified, found, pursued, made to give security if necessary. But this account of itself need not be proved unless the defendant puts it in issue. Section 1776. Some question is made whether these sections apply in a justices’ court.

If they do not, the principles which they embody do.

The corporation, in its complaint, gives all the particulars needful to enable the defendant to identify, pursue, find the plaintiff, and if it is a non-resident exact security from it If the defendant is content to raise no question about any of these things, the law is not so unreasonable as to vex the court with a compulsory investigation. Cases cited in which the issue was raised, do not apply.

We will not presume against the judgment that the justice did not wait an hour before proceeding to trial, in the absence of any return upon that subject. An amended return would have shown the fact, if it had existed.

The objection that the books were not produced is not well taken. It does not appear that the sum total of the accounts which the defendant promised to pay was stated in the books, and it was not error for the witness to state it.

The complaint alleged that the plaintiffs “are a corporation doing business under the name of the Crown Point Iron Company, in the town of Crown Point, Essex county, IST. Y.”

We think that is an allegation, sufficient in a justice’s court, that the plaintiff is a domestic corporation.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.