Majority
p. 486James Shanks, Respondent, v. The Magnolia Metal Company, Appellant.
Headnote
Attachment — allegation in the alternative in regard to the incorporation of a foreign corporation — insufficient.The affidavit upon which an attachment was granted against a corporation alleged that the plaintiff had “a cause of action against the above-named defendant which is or holds itself out to be a foreign corporation,” etc.
Held, that there was no sufficient allegation of the fact that the defendant was a corporation to sustain the attachment; that the allegation in the alternative was not sufficient to satisfy the requirements of sections 685 and 636 of the Code of Civil Procedure authorizing the issuing of an attachment in certain cases where the defendant is a foreign corporation.
Appeal by the defendant, The Magnolia Metal Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1895, denying its motion to vacate an attachment granted in the action.
The affidavit upon which the attachment in this action was granted was as follows :
“James Shanks, being duly sworn, deposes and says, I am the plaintiff ; I have a cause of action against the above-named defendant which is, or holds itself out to be, a foreign corporation, which claim arises out of contract other than a contract to marry and the amount of which said claim is $7,600, over and above all counterclaim and all offsets known to me.”
The allegation of the complaint in regard to the defendant’s incorporation was as follows :
“ That at all the time herein stated defendant was an association or combination of persons, and held and holds itself out to be a foreign corporation created under the laws of "West Yirginia.”
A. S. Bacon, for the appellant.
L. A. Gould, for the respondent.
"We are of opinion that there was no sufficient allegation of the fact that the defendant was a corporation. The allegation in the
p. 487
alternative is not sufficient to satisfy tlie requirements of the Code wliicli authorizes tlie issuing of an attachment in certain cases where the defendant is a foreign corporation. If the plaintiff is not willing to make his allegation in a definite form when lie proceeds against a foreign corporation, he cannot procure the benefits of the statute, given him as against foreign corporations.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Present — Van Brunt, P. J., and Parker, J.
Order reversed, with ten dollars and disbursements, and motion granted, with ten dollars costs.