Wood & Selick v. Ball

114 A.D. 743, 100 N.Y.S. 119, 1906 N.Y. App. Div. LEXIS 2173

Opinions

Williams, J.:

The judgment should be affirmed, with costs.

The ground of the nonsuit was that the complaint did not state facts sufficient to constitute a cause of action. The plaintiff was a foreign corporation. The action was brought to recover the purchase price of “ Liquid Egg ” (so called), sold to defendant at the city of Watertown, 17. T. The complaint did not allege that the plaintiff had complied with section 15 of the General Corporation Law (Laws of 1892, chap. 687, as amd. by Laws of 1901, chap. 538

Footnotes

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*). The question was not raised by demurrer or answer, but by motion for nonsuit after the evidence had been taken on the trial. It is provided by section 499 of the Code of Civil Procedure that the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to raise the question by demurrer or answer. Welsbach Co. v. Norwich Gas & Electric Co. (96 App. Div. 52; affd., 180 N. Y. 533) seems to be decisive upon the question that it is necessary to allege the compliance with this statute in order to make a valid complaint. The question was there raised by demurrer The trial court overruled the same, but the Appellate Division reversed, holding that the demurrer should have been sustained. On appeal to' the Court of Appeals the court affirmed the Appellate Division,"holding distinctly that the complaint was demurrable. The former decisions of the Court of Appeals were considered by the Appellate Division, and distinguished. It is useless to go over them again here.

It is suggested that it does not appear that the plaintiff is a stock corporation. The complaint contains the same allegation as the one in the Welsbaoh Co. Oase, and it is admitted in the answer that the plaintiff is a foreign corporation. Upon the trial, while there was much discussion as to whether the question of the inability of the plaintiff to sue without alleging its right to do business in this State should be raised by demurrer or answer, no suggestion was made that the corporation was not a stock corporation, and hence within the provision of the statute. Had any suggestion of that kind been made on the trial proof could have been given.

Again, the character of the transactions, the sales of the goods made, indicate that the plaintiff was a stock corporation.

It is suggested that a recovery ought to be permitted, if possible. The logic of that suggestion might do away with the statute in every instance.

All concurred, except McLennan, P. J., and Kiítjse, J., who dissented in an opinion by Kruse, J.

This statute was also amended by chapter 490 of the Laws of 1904.—- [Rep.