Carter v. Herbert Booth King & Brother Publishing Co.

26 Misc. 652, 56 N.Y.S. 382

• Court: City of New York Municipal Court
• Decided: March 15, 1899
• Status: Published

Opinion

Conlan, J.

This is an appeal by the plaintiff from a final judgment entered upon the trial of issues of law and seeks to review also an interlocutory judgment thereon.

The action is brought by the holder of a promissory note against an indorser.

The defendant is a foreign corporation. The complaint does not state where the plaintiff resides or where the indorsement was madp.

The defendant demurs to the complaint on the following grounds:

“ First: The said complaint does not state facts sufficient to constitute a cause of action. .

“ Second: Upon the ground that the court has no jurisdiction of the subject of the action.

“Third: Upon the ground that the court has no jurisdiction of the person of the defendant.”

The reasons assigned by the trial court for its judgment are stated as follows:

The complaint alleges that the defendant is a foreign corporation. It fails to allege that the plaintiff is a resident of the state and fails to state the place where the contract of indorsement was made.

As an incident of the trial, the assertion is made by the learned counsel for the defendant that there is no such court as the City Court of the city of Hew York, and this subject has been elaborated in his brief, but we are willing to be content with the provisions of the Code of Civil Procedure on that point, and do not think that the learned counsel is serious in advancing his proposition that there is no such court.

The respondent contends that there is something lacking in the allegations which are set out as to the maker of the note in question and that there is an omission of all averments as to what the 'American Eibre Chamois Company was.

He says we may infer that this was not the name of a human being, for in relation to it, the word “ it ” is used, and the complaint also negatives the idea that it was a fictitious name.

It was said in Adams v. Lamson Store Service Co., 59 Hun, 127, that an allegation in a complaint that the defendant was a corporation constitutes no part of the cause of action, but simply relates to the character or capacity of the defendant, and, therefore, a complaint which does not allege that the defendant was a corporation, although such might be inferred to be the fact from its name, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.

If, therefore, it is not necessary to allege this as a party to be charged in order to save the condemnation of ’the statute, how does it become necessary to allege it concerning a party against whom or which no recovery is sought?

' Where, also, the plaintiff has sued by a name representing no person, natural or artificial, the objection must be raised by motion and not by demurrer. Bank of Havana v. Magee, 20 N. Y. 355, affg. 16 How. Pr. 97.

And a demurrer to the complaint on the ground that the plaintiff has no legal capacity to sue, because there was no allegation that the plaintiff was a corporation and the action was by an incorporated bank, was held bad. Phoenix Bank v. Donnell, 40 N. Y. 410; affg. 41 Barb. 570.

In all these cases it did not appear that the parties were within the condemnation of the statute because of affirmative allegation.

Unless, therefore, it affirmatively appears that the status of the individual or corporation or party be not what of necessity it ought to he, or, in other words, that it does not affirmatively appear that he, she or it is anything else than what it ought to be,, then the statute will not condemn the pleading and the demurrer will not lie, and this rule, we think, applies to questions of residence, as well as to any other thing necessary to be alleged.

It was said in Gervais v. Chicago, etc., R. R. Co., 18 Civ. Pro. 404, that where the Supreme Court has jurisdiction of the subject-matter of an action against a foreign corporation, the objection that it has not jurisdiction of the person of the defendant, for the reason that the plaintiff is a nonresident, cannot be taken by demurrer where the nonresidence of the plaintiff does not appear on the face of the complaint; and in Fisher v. Charter Oak L. I. Co., 52 N. Y. Supr. Ct. 179, it was held that a demurrer is not well taken unless the fact showing want of jurisdiction affirmatively appears, and, therefore, a complaint in an action against a foreign corporation upon contract, which does not show where the contract was made, executed, or delivered, is not demurrable for want of jurisdiction of the person or the subject-matter.

In addition to what we have said above, the court has uniformly held that in order to confer jurisdiction, it is not necessary, in a,. case like the one at bar, that it affirmatively appear in the pleadings that the plaintiff is a resident.

It is sufficient that it does not affirmatively appear that he was-not such resident, and this ruling appears to be in harmony with the cases heretofore cited.

It follows from this reasoning that the final and interlocutory judgment appealed from must be reversed and the demurrer overruled, with costs to. the plaintiff, with leave, however, to the defendant to answer, on payment of costs, within ten days after service of a copy of the order of reversal herein.

Fitzsimons, Ch. J., concurs.

Judgments reversed and demurrer overruled, with costs to-plaintiff, with leave to defendant to answer on payment of costs, within ten days after service of copy of order of reversal.