Note on Putting Corporate Existence in Issue.

the contract alleged by plaintiff, or of the supposed defamatory words 6 charged by him to have been spoken, or any other fact absolutely inconsistent with any of his essential allegations-may be proved under a denial.

NOTE ON PUTTING CORPORATE EXISTENCE IN ISSUE.

Code Civ. Pro., § 1776: "In an action brought by or against a corpora- 1 tion, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified, and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation."

This section applies to foreign as well as to domestic corporations. Vulcan v. Myers, 58 Hun, 161; McElwee Mfg. Co. v. Trowbridge, 68 id., 28. The following allegations have been held insufficient to raise an issue : "Upon information and belief they deny the plaintiff ever was or now is a corporation." Vulcan v. Myers, 58 Hun, 161. Defendant "has no knowledge or information sufficient to form a belief" as to the organization of plaintiff as a domestic corporation, Concordia Sav. and Aid Ass. v. Read, 93 N. Y., 474; as a foreign corporation, McElwee Mfg. Co. v. Trowbridge, 68 Hun, 28.

"The defendant denies on its information and belief that at the time mentioned in the complaint, or at any other time, the defendant was a foreign corporation, as is alleged in the complaint." Bengston v. Thingvalla S. S. Co., 31 Hun, 96.

"For a second and separate defence, the defendant alleges on information and belief that it is not and never was a corporation." Bengston e. Thingvalla S. S. Co., 3 Civ. Pro., 263; aff'd in 31 Hun, 96 without passing on this defence. The Court (BROWN, J.) was of opinion that a party intending to raise the issue should be held to a positive allegation; at least such should be the rule where a company, holding itself out to the world as a corporatic n, denies its own existence.

But so far as the opinion indicates that an allegation that defendant is 3 not a corporation is not an "affirmative allegation," if made on information and belief, it is not in harmony with settled usage, for an affirmative as well as a negative allegation may be either positive, or on information and belief.

See Note on THE EFFECT OF DENIALS, p. 489 of this vol.

[Voluntary Association.] Where, under Code Civ. Pro., § 1919, an action is brought by the president or treasurer on behalf of the association, an allegation in the complaint "that the Racket Club is a joint-stock company or association, consisting of more than seven shareholders or associates" is put in issue by a simple denial. Tiffany r. Williams, 10 Abb. Pr., 204.

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Walker v. The Granite Bank, 1 Abb. Pr. (N. S.), 406.

WALKER v. THE GRANITE BANK.

Supreme Court, First District, Special Term 1865.

[Reported in 1 Abb. Pr. (N. S.), 406.]

1. In an action to recover securities pledged, on the ground that the amount for which they were pledged had been paid, an answer alleg ing that the amount had not been paid, but that a large sum still remains unpaid, is not obnoxious to a motion to make it more definite and certain. A simple denial that all the money for which the securities had been pledged had been paid would have been enough.

2. Where an amended complaint is served in pursuance of leave given by the court, a new answer becomes necessary; and the time within which to move to compel an amendment of the answer runs from the time of filing it.

Motion by plaintiff to require the defendants' answer to be made more definite and certain.

INGRAHAM, P. J. The portion of the answer which sets out special causes why the gratuity was not voted by the directors, should not have been inserted in the answer. The general allegation that the services were of no value to the defendants is proper, but all the rest is mere evidence to prove the truth of the foregoing allegation.

The application to have the defendant state in the answer how much is due to the defendants from Holbrook, is denied. It is very immaterial what the amount is. The plaintiff claims to recover the securities on the ground that the amount for which they were pledged had been paid in part by collections and in part by sales. The defendants answer that the amount has not been paid, but that a large sum still remains unpaid. I do not think the plaintiff has any right to require this allegation to be 3 made more specific by stating the amount actually unpaid. That must be matter of proof on the trial. The issue could have been as well formed by a simple denial that all of the moneys for which the securities had been pledged were paid to the defend

ants.

The objection that it is too late to make the motion is not well taken. The leave to serve an amended complaint destroyed the

White v. Drake, 3 Abb. N. C., 133.

further pleadings, and rendered a new answer necessary. The 4

time within which to move to amend the answer runs from the filing of it.

Motion granted in part, as above stated.

WHITE v. DRAKE.

New York Supreme Court, First Department, Special Term,

1877.

[Reported in 3 Abb. N. C., 133.]

A defence merely alleging that plaintiff is not the real party in interest, but that W. is, is demurrable; because it attempts to set up new matter which could not be proved unless specially pleaded, and states no fact, but only a conclusion of law.

Demurrer to a portion of an answer.

Plaintiff sued as assignee of several choses in action, alleged to have been assigned by one Robert Woodruff. Defendant, as his fourth defence, alleged as follows: "Defendant for a further and separate defence, alleges on his information and belief that the plaintiff is not the real party in interest, but that said Woodruff is the real party in interest."

To this part of the answer plaintiff demurred on the ground that it was insufficient in law upon its face, and constituted no answer or defence to the complaint or any part thereof.

BARRETT, J. I.-The answer is demurrable. It attempts to set up new matter; that is, matter which could not be proved under a denial nor unless set up. (Jackson v. Whedon, 1 E. D. Smith, 142; Savage v. Corn Ex. Fire Ins. Co., 4 Bosw., bottom of page 15, and top of page 16.)

II.-And it is bad on demurrer, for the reason that no fact is stated-nothing but a conclusion of law. The action must of course be prosecuted in the name of the real party in interest, but whether it is so prosecuted depends upon the facts. (Russell v. Clapp, 3 Code R., 65; Bentley v. Jones, 4 How. Pr., 204; Brown v. Ryckman, 12 How. Pr., 314; Witherspoon v. Van

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Traver. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Dec., 421.

4 Dolar, 15 How. Pr., 266.) There may be a question when ownership in another is pleaded (see Holstein v. Rice, 15 How. Pr., 1 and note), enough certainly to put the plaintiff to his demurrer; which was all that was held in Tamisier v. Cassard, 17 Abb. Pr., 187.* None, however, where the averment is limited to the phraseology of the Code.

Judgment for the plaintiff on the demurrer with costs, and with the usual leave to the defendant to amend his answer within twenty days upon payment of such costs.

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TRAVER v. EIGHTH AVENUE R. R. CO.

New York Court of Appeals, September, 1857.

[Reported in 4 Abb. Ct. of App. Dec., 421.]

1. Under the Code of Procedure, the only way to take advantage of a mere misnomer, e. g., the bringing of an action by a married woman in her maiden name, is by answer; if not set up by answer, advantage cannot be taken of it on the trial.

2. A mere misnomer in pleading is a formal error, amendable in the court of original jurisdiction; and will not be noticed in this court.

3. Where a minor child is injured by negligence, the parent may recover for the loss of service for the remainder of the period of minority; and if the disability continue beyond that period, the child may recover for such further loss.

Amelia Traver, by A. Bull, her guardian, sued to recover damages for an injury alleged to have been caused by defendants' negligence. After the injury, but before suing, plaintiff intermarried with one Collins; in the summons and complaint in the action, however, she was designated by her maiden name. She was a minor at the time of the injury, but a few months past twenty-one, at the time of the trial.

Upon the trial, evidence was received under exception, as to

* In Tamisier v. Cassard, 17 Abb. Pr., 187, plaintiff alleged that he was the lawful owner and holder of the note sued on. The defendant in his answer denied that plaintiff was the owner and holder and alleged that one G. was the real owner and holder thereof, and the real party in interest. On motion for judgment on the answer as frivolous,-Held, that a material issue was presented, and the motion must be denied.

Traver v. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Dec., 421.

how much she could earn per week, prior to the injury, and that 2 some money had been expended in taking care of her the last year preceding the trial.

Defendants moved to dismiss the complaint, on the ground, among others, that the action was improperly brought in plaintiff's maiden name, instead of the name acquired by marriage. The motion was denied.

It appeared that an action had been previously brought by plaintiff's mother, and a recovery had for loss of plaintiff's services, and the expense of taking care of her.

The court charged the jury that nothing could be recovered for those causes in the present action. Plaintiff recovered.

The Superior Court at Special Term, denied a motion for a new trial.

The General Term affirmed the judgment.

The Court of Appeals affirmed the judgment.

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GROVER, J. Commencing the action in the maiden name of the plaintiff, instead of that acquired by marriage, was a mis- 4 nomer merely. There was no pretence but that the plaintiff was the proper person to sue, and the only one that could maintain an action for the injury sought to be redressed. Under the practice prior to the Code, misnomer of either party could only be pleaded in abatement of the action (2 Grah. Pr., and cases cited). Neglecting to interpose such plea waived any advantage to the defendant therefrom. The mistake was amendable by the court. The misnomer was not ground of non-suit upon the trial. It was not like the case of bringing an action by the wrong party; that was ground of non-suit. By the Code, pleas in abatement are abolished (Code, § 142-151). The only mode of presenting such a defence is, under the Code, by answer. No such defence is set up in the answer in the present case. It was, therefore, unavailable upon the trial. In Bank of Havana . Magee (20 N. Y., 355), it was held that although there was no such corporation, and that it was only a name assumed by Charles Cook for the transaction of his banking business, yet bringing the action by Cook in such name was but a mere formal error,

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