Phoenix Bank v. Donnell, 40 N. Y., 410.

9 no application to the question under the Code. There are a few cases in which similar opinions have been expressed since the Code. (Stoddard v. The Onondaga Annual Conference, 12 Barb., 573; Elizabethport Mfg. Co. v. Campbell, 13 Abb., 86.) In some cases the contrary has been held. (Union Ins. Co. v. Osgood, 1 Duer, 107; Kennedy v. Colton, 28 Barb., 59.) In Bank of Havanna v. Magee, DENIO, J., in giving the opinion of the court, speaking of a complaint precisely like that in the present case in this respect, says: But there was not here any defect on the face of the complaint. For aught that appeared, the plaintiff was a corporate body. This indicates clearly the view of the learned judge upon the point under consideration, although it was not directly involved in that case. The weight of authority under the Code is against sustaining the demurrer upon this ground.

10

The appellant's counsel insists that if the demurrer is not sustainable upon the second ground specified in section 144, it is upon the sixth. In this, the counsel is in error. That relates only to the statement of facts constituting the cause of action. 11 If this statement fails to show a right of action, then a demurrer on this ground may be interposed. But it has no application to the capacity of the plaintiff to sue or to the other grounds of demurrer specified. Each of these is to be determined by itself in like manner as were the grounds of a special demurrer under the former practice. The judgment appealed from must be affirmed with costs.

12

HUNT, Ch. J., MASON, LOTT and DANIELS, JJ., concurred with GROVER, J., for aflirmance.

WOODRUFF, J., thought that legislation, either special or general, was necessary always to give an artificial body authority to sue. And, therefore, where there is no allegation of incorporation in an action by such a body, in the complaint, there does appear on the face of the pleading substantially a want of capacity to sue. He was therefore for reversal.

JAMES, J., was for reversal upon the same ground.
Judgment affirmed.

Harmon v. Vanderbilt Hotel Co., 79 Hun, 392.

HARMON v. VANDERBILT HOTEL CO.

New York Supreme Court, General Term, Second Department, 1894.

[Reported in 79 Hun, 392.]

1. The omission to state, in a complaint in an action by or against a corporation, whether it is domestic or foreign, and, if foreign, in what jurisdiction incorporated, as required by Code Civ. Pro., § 1775, is not a ground of demurrer.

2. The incorporation of a party as showing its capacity to sue or be sued, is not a part of the cause of action, and the remedy for the omission of the statement required by that section should be sought by motion.

CULLEN, J. This is an appeal from an interlocutory judgment entered upon an order sustaining a demurrer to the plaintiff's complaint. The objection taken to the complaint is, that while it states that the defendant is a corporation, it fails to state whether it is a domestic or foreign corporation, and, if foreign, under the laws of what sovereignty incorporated.

That the complaint is defective in failing to make such an averment, which is required by section 1775 of the Code, cannot be doubted. But the question here involved is, whether such 2 defect is ground for demurrer or the subject of motion. It has been the subject of numerous conflicting decisions in this court and in the superior city courts. The exact point has not been determined by the Court of Appeals or passed on in this General Term. We are, therefore, at liberty to decide it as a new question.

The grounds of demurrer are specified by section 488 of the Code. The only specified ground under which the demurrer in this case can be brought is that the complaint fails to state facts sufficient to constitute a cause of action, for the cause of action arose in this State, and, even if the defendant were a foreign corporation, the court would have jurisdiction of the subject of the action.

The cause of action is the facts which constitute the grounds of the claim against the defendant. In Fox v. The Erie Preserving Company (93 N. Y., 54) it is said: "The allegation that

3

Goddard v. Benson, 15 Abb. Pr., 191.

4 the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.” This dictum is not obiter, as suggested, but strictly in point to the question involved in that case. It is true that the provisions of section 1775 of the Code were not under consideration in that case, and that the provision of that section, that the complaint shall state the character of the corporation, is mandatory. But section 481 is equally mandatory that the complaint shall specify the place of trial and the names of all the parties. For defects in these respects it is settled practice that demurrer will not lie, but that the remedy is by motion. If the complaint stated erroneously the character of the defendant, whether a domestic or foreign corporation, it would not affect the right of the plaintiff to recover. We do not see that an allegation can be deemed part of a cause of action, the successful controversion of which cannot defeat the action.

5

6

The order appealed from should be reversed, with costs, and judgment given for plaintiff on demurrer, with costs, with leave to defendant to answer within twenty days on the payment of such costs.

BROWN, P. J., and DYKMAN, J., concurred.

Judgment and order reversed, with costs, and judgment given for plaintiff on demurrer, with costs, with leave to defendant to answer in twenty days on payment of such costs.

GODDARD v. BENSON.

New York Common Pleas, General Term, 1862.

[Reported in 15 Abb. Pr., 191.]

1. A demurrer lies to a supplemental pleading.

2. To render a former adjudication a bar, it must appear that the litigation was between the same parties or their privies.

3. By privies are meant persons who are represented by the parties, and who claim under them or in privity with them, who have mutual or successive relationship to the same right or thing.

4. A defence that in an action by one K. against plaintiffs, they set up the same matter and cause of action, and that K. had verdict and judg ment,—Held, bad, as not showing privity between K. and defendants.

Goddard v. Benson, 15 Abb. Pr., 191.

Appeal from an order sustaining a demurrer to a supplemental 1

answer.

This action was brought to recover the value of goods which it was claimed defendants had converted to their own use. The original answer was a general denial. The defendant Benson was allowed to put in a supplemental answer, which alleged that in November, 1860, judgment was recovered in an action brought in this court by one Daniel Kempton against the present plaintiffs, in which they set up as a defence thereto, and litigated therein, the same matter and cause of action as that set forth in 2 the complaint, and the jury, on the trial thereof, rendered a verdict on the merits of their defence, and decided the matters set forth in the complaint, which are recited, and that judgment was rendered therein, and that the same remained of record in the office of the clerk of this court.

The plaintiffs demurred, assigning, as a ground of demurrer, that upon the face of the answer it did not constitute a defence.

DALY, F. J. Where the Code allows a supplemental answer, it necessarily allows what is incident to such a pleading, the right 3 to demur to it. This was the rule before the Code, where a plea was put in puis darrien. (Abbot v. Rugerly, Freem., 252.)

The demurrer was well taken. The answer did not allege, nor show, a verdict and judgment upon the same subject-matter between the parties to this suit or their privies. The rule is, that the same point or question when once litigated and settled by a verdict and judgment, shall not be again contested in any subsequent controversy between the same parties or their privies (Doty v. Brown, 4 N. Y., 71), and by privies are meant persons who are represented by the parties, and who claim under them, or in privity with them, who have mutual or successive relationship to the same right or thing (1 Greenl. Ev., §§ 189, 523). It does not appear from anything in the supplemental answer, that the defendants in this suit stood in any such relation to Kempton, the plaintiff in the former action. It is not shown what that action was about. All that is averred is, that the plaintiffs in the present suit were defendants in the one brought by Kempton, and that they set up as defence to his suit, that they, as partners in busi

4

Corning v. Roosevelt, 25 Abb. N. C., 220.

5 ness, delivered to Crosby and Benson, the defendants in the present action, a quantity of raw silk to be manufactured, and that the jury found and decided by their verdict that the present plaintiffs did not jointly, and as partners, deliver to Crosby and Benson, silk to be manufactured, as alleged. That would not exclude them from maintaining their present action against Crosby and Benson, unless it is made to appear that there existed that identity of interest between Kempton and the present defendants, in the subject-matter, as would make the defense set up against him equally conclusive in their favor. This is not shown by the answer, and judgment, therefore, was properly given for the plaintiffs upon the demurrer.

6

1

The order made at Special Term must be affirmed.

CORNING v. ROOSEVELT.

New York Supreme Court, Special Term, 1890.

[Reported in 25 Abb. N. C., 220.]

1. In determining a demurrer to one of the later pleadings in an action [other than a plea in abatement*], the court should consider the sufficiency of all the prior pleadings and render judgment against the party who has interposed the first insufficient pleading. Where, therefore, upon a demurrer for insufficieney to a reply to a counterclaim, the court finds that the reply is sufficient, but that the counterclaim and the complaint are both defective, judgment should be rendered in favor of the defendant upon the insufficient complaint.

2. It seems that a plea of a counterclaim is defective in substance where it' contains no demand for judgment in defendant's favor against the plaintiff.

3. A complaint for specific performance in an action by an assignee of a contract for the sale of certain securities by plaintiff's assignor, which alleges that such assignor (but not plaintiff) is ready and willing to transfer the subject of the sale to defendant, upon the latter paying plaintiff therefor, is insufficient, where the assignor is not a party to the action. It seems that in such case the assignment should have included the subject of the sale, or the assignor should have been united as a party.

Demurrer to reply.

The nature of the pleadings is fully set forth in the opinion.

* See note in 25 Abb. N. C., 224, and cas. cit.