26 N.Y.S. 742 | New York Court of Common Pleas | 1894
This action was brought to recover the possession of a cash book and ledger of the foundry business of James Conner’s Sons, which business was sold by the proprietors thereof to one Thomas B. Odell, who sold the same to the plaintiff. The plaintiff’s- alleged title to the books in question rests upon the following clause in the bill of sale to Odell, plaintiff’s transferrer, namely: “All other effects and assets of every kind in and about the premises, or used in connection with the business, including also its good will.” It appears from the evidence that these .books were in the safe of the foundry business when it was transferred by the proprietors thereof, and were used regularly in the plaintiff’s business until they were taken away by the defendant upon his resignation as submanager of the plaintiff; that the value of the good will to the, plaintiff would be seriously impaired by their retention; that the plaintiff offered to allow the defendant access to the books in question, but this offer was declined by defendant, who claimed ownership thereof. Under the above very comprehensive clause it is clear that the plaintiff acquired title to said books among the other effects and assets assigned. But the justice awarded their possession to the defendants; the judgment, as far as appears, being founded upon the facts that the current book accounts outstanding in favor of the proprietors- of James Conner’s Sons’ foundry business
The motion to dismiss the complaint, based upon the ground that the plaintiff had not legal capacity to sue, was properly denied. The necessary facts upon which this objection could be predicated appear in the complaint, and therefore the failure to present the objection by pleading amounts to a waiver of the same. Code Civil Proc. §§ 498, 499;
Code Civil Proc. § 488, provides that "defendant may demur to the complaint, where one or more of the following objections thereto appear on the face thereof: * * * (3) that the plaintiff has not legal capacity to sue.”
Section 498 provides that, “where any of the matters enumerated in section 488 of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer.”
Section 499 provides that “if such an objection is not taken either- by demurrer or answer, the defendant is deemed to have waived it.”
Laws 1892, c. 687, § 15, provides that “no foreign stock corporation other than a monied corporation, shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state. * * * No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.”