Schmidt v. Nelke Art Lithographic Co. — 74 N.Y. St. Rep. 308

Majority

p. 308

John M. Schmidt, App'lt, v. The Nelke Art Lithographic Company, Resp't.

(New York City Court, General Term,

Filed March 16, 1896.)

Headnote

1. Corporation—Goods sold and delivered.

In an action for goods sold and delivered to a corporation, the vendor cannot recover where such corporation was not incorporated until several months after such sale and delivery.

3. Same—Proof of incorporation.

Plaintiff is not required to prove defendant’s incorporation, where the latter does not specifically deny such incorporation.

Appeal from a judgment in favor of defendant.

J. George Flammer, for app’lt; Albert E. Henschel (Fromme Bros., of counsel), for resp’t.

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 Hr. Yelke, who did business under the name of Yeilke 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.