Irving National Bank v. Corbett

10 Abb. N. Cas. 85

Opinion

Barrett, J.

The demurrer is limited to the eighth ground specified in section 488 of the Code of Civil Procedure, namely, that the complaint does not state facts sufficient to constitute a cause of action. That ground has no applicability to the capacity of the plaintiff to sue (40 N. Y. 410). It relates only to the statement of facts constituting the cause of action. Here that statement is sufficient. The real objection is that it is not averred, as required by section 1770, that the plaintiff is a corporation. But we cannot assume, in aid of the demurrer, that the action is brought by a corporation. If it is, the objection should be taken by answer. The complaint does not fail to state facts sufficient to constitute a cause of action (even if it fails . to show legal capacity to sue) merely because there is no averment that the plaintiff is a corporation.

The motion must be granted, with $10 costs.

There was no appeal.