Abram French Co. v. Marx — 59 N.Y. St. Rep. 398

Majority

p. 398

Abram French Company, App’lt, v. Philip Marx, Resp’t.

(New York City Court, General Term,

Filed May 18, 1894.)

Headnote

Judgment—Default—Opening.

An application by defendant to vacate and set aside a judgment upon a technical objection as to the plaintiff’s capacity to sue will be denied.

Appeal from, order setting aside judgment.

Hayes & Greenbaum, for app’lt; ¡Samuel Mullen, for resp’t.

The application made by the defendant was for an order vacating and setting aside the judgment herein, and not to open the default as a 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 objection did not appear on the táce 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.

Yan Wyck, J., concurs.