Onondaga County Bank v. Carr

17 Wend. 443

• Court: New York Supreme Court
• Decided: July 15, 1837
• Status: Published

Opinion

By the Court,

Nelson. Ch. J.

The demurrer is not frivolous. The defendant is entitled to rejoin, either hv taking issue upon the replication or settingup an ouster, or dissolution of the corporation, if such be the fact, and to have enabled him to do so, the replication should have concluded with a verification. The short mode of pleading permitted by the statute was not intended to relieve corporations from proving their existence in the manner heretofore required. Bad the plaintiffs averred in their declaration, pursu ant to the statute (2 R. S. 459, § 13), that they were a corporation, setting forth the title of the act creating the corporation and the date of its passage, the plea of nul tiel corporation itself must have concluded to the country, and the necessity of a replication and rejoinder, and the delay consequent thereon, would have been avoided. The motion in this case must be denied, and the cause argued when regularly reached on the calendar, unless the plaintiffs elect to have judgment rendered against them now, with leave to amend.

Eule accordingly.