166 Misc. 904 | N.Y. App. Term. | 1938
Lead Opinion
The plaintiff corporation, through its attorneys, has sued the defendant corporation in the Municipal Court by summons and informal complaint for work, labor and services performed for defendant at the latter’s request in the amount of Thirty-eight dollars and ninety cents. Defendant has filed by way of answer a written statement of general denial, breach of contract and warranty and a counterclaim, subscribed by the defendant corporation as defendant in person, by Edward B. Gotthelf, president. Plaintiff moved to strike out the answer as unauthorized in law by a corporation defendant. The motion was denied by order from which this appeal has been taken. The president of defendant corporation attempted to appear and argue the appeal. His statement was heard. No brief was filed. As the question of the ability or authority of a corporation to institute or prosecute
Confining our discussion solely to civil suits, there are only two ways in which a party may proceed. One is in propria persona, or in his own person, and the other is by attorney duly licensed to practice.
A corporation had no ability or authority to appear in propria persona at common law. Such authority, if there be any in an action, must be found either in the Constitution or the statutes. The State Constitution (Art. 8, § 3) provides: “ And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons.” This, in our opinion, is declaratory of the right of corporations to sue and be sued and does not authorize an appearance in propria persona. The Civil Practice Act (§ 3) provides, “ The rule of the common law that a statute in derogation of the common law is strictly construed does not apply to ” the Civil Practice Act. However, unless a particular provision thereof clearly and definitely creates a new right, privilege or obligation, in our opinion it should be regarded as being in harmony with, and not in conflict with or in derogation of, the existing common law. The Civil Practice Act (§ 236), in part, reads as follows: “A party who is of full age may prosecute or defend a civil action in person or by attorney unless he has been judicially declared to be incompetent to manage his affairs.”
In our opinion this language contemplates a natural person and cannot be said to refer to a corporation. Individual litigants have always had the right to prosecute and plead in propria persona. By the ancient common law, a party cited to appear was required to do so in person and it was only after such appearance that he might, with the consent of the court, be represented by attorney (Beecher’s Case, 8 Coke, 58A; 77 Reprint, 559; Cro. Jac. 211; 79 Reprint, 183; Com. Dig. Atty. B. 4.) If the right of personal appearance by an individual should be denied, such denial will be regarded as an abuse of personal liberty. Obviously, there were individual litigants before there were lawyers. When, however, in the development of the due administration of justice, courts required special qualifications as requisite to persons practicing law before them, no unregistered person was permitted to appear and plead for another. In a court of record an attorney could appear only in that capacity and not merely as an agent. (Heyer v. Denning, 1 Johns. Cas. 103.)
A corporation has always been regarded as a fictitious legal person distinct from the actual persons who compose it. (1 Blackstone’s Commentaries [17th ed.], 468.) Although it has a real
In a court of record (and the Municipal Court is a court of record) a duly licensed attorney is the only one authorized to practice law or appear in legal matters for another. (Heyer v. Denning, supra;
In our opinion the words “ other than itself ” merely grant immunity to the corporation for an act which otherwise would be the subject of punishment and do not, expressly or by implication, recognize any ability by the corporation to bring an action or to appear or answer in person. That provision does not confer authority or power to so act. No other statutory provision authorizing a corporation to appear or answer is called to the attention of this court.
Some may deem it desirable that corporations under modern conditions should have additional powers, despite legislative enactment and judicial decision to the contrary. Some even have thought that corporations should be permitted to practice law. However, for the courts to assume powers not granted by statute or recognized by the common law would amount to an assumption of the legislative function. Upon well-settled principles of the American form of government courts should not encroach upon' the domain of legislation. If corporations are to be permitted to appear in court by their officers and to conduct or manage their own litigations, the grant of such power, in our opinion, is a matter for consideration by the legislature and not by the courts.
From the foregoing it appears that a corporation is not permitted to practice law, directly or through agents or employees, and is not authorized by statute to appear in propria persona; that when it acts it must do so through a natural person and in a court of record a duly' licensed attorney is the only one who may appear or act for another. We see no difference between a corporation suing as a plaintiff or. appearing as a defendant except that in the former the appearance is voluntary and in the latter it may be voluntary or involuntary. If we are correct in holding that section 280 confers no such power, it follows that the defendant corporation was not authorized
Order reversed, with ten dollars costs, and motion granted, with leave to the defendant to appear and answer through an attorney within five days after service of order entered hereon upon payment of said costs, with leave to appeal to Appellate Division.
Shientag, J., concurs; Noonan, J., dissents with memorandum.
Dissenting Opinion
(dissenting). I dissent from the conclusion of my associates that the defendant corporation was not entitled to appear and answer herein in propria persona. (Penal Law, § 280.)