Union Mutual Insurance v. Osgood & Alden — 8 N.Y. Super. Ct. 707

Majority

p. 707

The Union Mutual Insurance Co. v. Osgood and Alden.

At Special Term,

May, 1853.

Headnote

When plaintiffs sue in a name which is appropriate to a corporate body, it is not necessary to aver in the complaint that they are a corporation.

A demurrer to the complaint on the ground that it contains no such averment will be adjudged frivolous.

When "the want of a legal capacity to sue does not appear on the face of the complaint, the objection must be taken in an answer; it cannot be raised by a demurrer. , >

The plaintiffs moved for judgment on a demurrer to their complaint, on account of the frivolousness of the demurrer.

The causes assigned for demurrer were, that the plaintiff has not legal capacity to sue, because,

First, that the complaint does not show whether the plaintiffs are a voluntary association or a corporation. Second, that the complaint does not set forth the title of any act incorporating the plaintiffs. •

Also, that it does not state facts sufficient to’ constitute a cause of action, in that it does not state that the plaintiffs had any power or authority to receive, hold, or own, the promissory note counted upon.

p. 708

There was no averment in the complaint that the, plaintiffs are a bpdy corporate.

Wm. M. Evarts, for plaintiff.

C. A. Rapallo, for defendant.

There are two cases in Harrison’s Eeports, and two in Blackford’s, adjudging the precise point; that it is unnecessary to aver that the plaintiffs are a corporation. 3 Harrison’s R. 105, ed. 158, 4 Black. R. 267 , 5 ed. 146.

The following cases in this state favor the same proposition: (1 J, C. 132, Bank of the U. S. v. Hoskins, 2 Cowen, 770; Bank of Utica v. Smalley,) and cases cited in the latter in the opinion of the court (4 Sand. S. C. R. 675, The Holyoke Bank v. Hoskins).

It is a general rule that it is unnecessary to aver anything in the complaint that is not required to be proved.

By 2 R. S. 458, § 3, it is provided that a corporation plaintiff created by the laws of this state, need not prove its existence on the trial of the cause, unless the defendant shall have pleaded in abatement, or in law, that the plaintiffs are not a corporation.

If the defendants deem such to be the fact, they can set up in their answer that the plaintiffs are not a corporation. 2 R. S. 458, § 3.

It does not appear on the face of the complaint that the plaintiff is not a corporation. It does not, therefore, appear that the plaintiff has not legal capacity to sue. Unless that appears, a demurrer cannot be sustained which is based on that objection. Code, § 144, sub. 2.

■ The name In which the suit is brought being an appropriate corporate name, the plaintiff will be intended, for all the purposes of the suit, to be a corporation, unless the contrary be averred by plea. 3 Harrison’s R. 105; 2 R. S. 458, § 3; Laws of 1845, chap. 345.

The plaintiff must have judgment on the demurrer, but with liberty to defendants, on serving on plaintiff’s attorney within five days from the service of this order, an affidavit of merits,

p. 709

to withdraw demurrer, and answer in twenty days, on payment of the costs of the demurrer.

Approved by all the judges on consultation,