Elizabethport Manufacturing Co. v. Campbell

13 Abb. Pr. 86

• Court: New York Supreme Court
• Decided: July 15, 1861
• Status: Published

Opinion

Leonard, J.

—1. The demurrer is frivolous.

2. The act of incorporation is not properly attested, and cannot be read.

“The acts of the Legislature of the several States shall be authenticated by having the seal of their respective States affixed thereto.” (2 Laws of U. S., 102, § 1 ; Cow. & Hills' Notes, note 776.)

The affidavits of plaintiffs do, however, prove the existence of the corporation, and that it is engaged in business. The defendants were called upon to show why the plaintiffs were not a corporation.

The plaintiffs’ affidavits, not being contradicted, satisfactorily prove that every denial included in the second answer is false. The authority of The People a. McCumber (18 N. Y., 315), is sufficient for striking out those denials, under such circumstances.

The complaint, when amended, is the pleading which is before the court, and not the original one. A reference to the original complaint will not falsify the statements of the amended one, however inconsistent, unless there are some other circumstances to corroborate or show that the statements of the former pleading, which have been amended, were not the result .of mistake.

The amendment of a pleading is an acknowledgment of the pleader that he has been mistaken. That is the prima-facie effect, and not that the party or the pleader has wilfully or knowingly made a false statement in the pleading so amended.

The first and second answers are stricken out as false.

The third and fourth answers are frivolous, and-in respect to them, judgment is granted to the plaintiffs on that account.

There is no consideration for the agreements referred to as defences in the third and fourth answers, and they are inconsistent with the tenor of the notes mentioned in the complaint.

Judgment is, therefore, rendered for the plaintiffs, as to the demurrer and the third and fourth answers, on account of the frivolousness thereof, and the first and second answers are stricken out as false: with $10 costs of this motion to the plaintiffs, and the costs of the action.