Farmers & Mechanics' Bank v. Rayner — 2 N.Y. Super. Ct. 195

Majority

p. 195

The’ Farmers and Mechanics’ Bank versus John Rayner.

Headnote

A plea of nuZ tiel corporation, is bad upon special demurrer, as amounting to the general issue: for whatever the plaintiff is bound, in the first instance, to prove, in order to support his cause of action, cannot be specially pleaded by the defendant. And this principle applies as well to foreign corporations, as.to our own.

Assumpsit brought by the plaintiffs, as the endorsees, against the defendant as endorser of three several promissory notes, drawn by one William S. Rayner.

The defendant pleaded, I. The general issue; and II. That the plaintiffs iyere not “ a body politic or corporate, and had not a right, by the laws of the land, to sue as such.”

To this last plea the plaintiffs demurred specially, and set forth for cause, that if amounted to the general issue.

Mr. J. Hoyt for the plaintiffs, and in support of the demurrer, contended,

I. That any matter of defence which denies what the plaintiff is bound to prove, or be non-suited, in the first instance, on the general issue, ought not to be pleaded specially. [Bank of Auburn v. Weed and others, 19 John. R. 300.]

II. That a corporation when plaintiff is bound to prove itself such on the trial, or be non-suited. [ 14 John. Rep. 238 . 8 Ib. 378.]

Mr. A. S. Garr for the defendant, contra,

contended that the plea was good; but if bad, the defendant was entitled to judgment, because the declaration was defective. That the plaintiffs were a foreign corporation, and the declaration should therefore have set forth where and by what authority they were incorporated. There was nothing in any part of the pleadings to show, that the bank was a foreign corporation, and the declaration commenc

p. 196

ed in the usual form: “ The Farmers and Mechanic’s Bank, “ plaintiffs in this suit,” complain, &c. He referred to the case of The Auburn Bank v. Aiken, (18 J. R. 137.) and the authorities there cited. Childress v. Emory, ( 8 Wheat. Rep. 643 .) D'Wolf v. Rabaud et al. (1 Peter's S. C. Rep. 498.) 1 Chitty's Plead. 255. Rev. Stat. part 3, chap. 8, tit. 4. art. 1. sec. 3. 13.

The case of the Bank of Auburn v. Weed, (19 J. R. 300.) decides the point raised on this demurrer. The plea of ml tiel corporation, was there held to be bad on special demurrer, as amounting to the general issue, on the principle, that, whatever the plaintiff is bound, in the first instance to prove, in order to support his cause of action, cannot be specially pleaded by the defendant. And it has been settled by the Supreme Court, that where a Corporation sues, it must show itself to be such on the trial, or be non-suited. [14 J. R. 238. 8 Ib. 378.]

This principle applies as well to foreign corporations as to our own; and there is no ground in this respect for any distinction between them. If it were otherwise, the iact, that the plaintiffs in this case are a corporate body, created by the laws of another state, is not averred on the record, so as to enable us to notice it.

Judgment for the plaintiffs on the demurrer.

[Ward and Hoyt, Attys. for the plffs. A. S. Garr, Atty. for the deft.]