| N.Y. Sup. Ct. | Jun 15, 1859
Undoubtedly, the demurrer in this action should have been taken under the second and not under the sixth subdivision of section 144 of the Code. The want of an allegation showing the capacity of the plaintiffs to sue is not the omission of a constituent fact, essential to the transaction upon which a cause of action is founded. It only affects the character of a party to the alleged transaction. But, although the objection is apparently taken under the sixth subdivision, the objection itself is set forth in express words, “ that the complaint does not state that the plaintiffs are a corporation.” I consider, therefore, that the manner of stating the objection is a mere inadvertence, at most, a clerical error which could not possibly lead the plaintiffs astray. Disregarding, then, the manner of the objection, is it in itself tenable % It is ad
The law only recognizes individuals in their natural capacity, with distinctive Christian names and surnames, and artificial bodies, constituted by the competent authority, allowed to sue and to be sued, bearing some distinctive appellation. Confusion and uncertainty would be the inevitable result, if any number of persons, real or fictitious, were permitted to maintain claims in a court of justice. It would appear, therefore, as a necessary corollary to this, that persons coming into a court of justice to establish or defend claims, or to seek redress, should come in their real individual names, or, if endowed with a corporate capacity, that they should expressly allege it.
But, where the incorporation is created by a general law of the State or country in which the action is commenced, it is then plainly unnecessary, because such incorporation is a portion of the public law, of which the court will take judicial cognizance, and in this State, even a particular law constituting a corporate body, printed in an authorized volume of the statutes, would now make it the subject of judicial cognizance. Mor is it necessary to allege' the incorporation, where the defendants have entered into a contract with the plaintiffs in their corporate name, because they thereby admit them to be duly constituted as a body corporate, under such name. This was really the question in Henriques a. The Dutch West India Company. (2 Let. Raym., 1535.) The plaintiffs in error were estopped, by the recognizance, which they had entered into with the defendants in error, from insisting that there was no such company. But, where no such admission has been ever made—where the contract, upon which the action is founded, has not been made with the plaintiffs in their corporate capacity, and by their corporate name—I think there is no sufficient consent of authority, allowing the maintenance of an action by a foreign corporation, without alleging the incorporation. This is the true and reasonable deduction, which has been lost sight of in some recent special term decisions. By referring to the case of The Dutchess County Manufacturing Company a. Davis (14 Johns., 239), it will be observed that this distinction is recognized by the court in banc, in the opinion of Chief-justice Thompson.
The other specifications, which are properly included under the sixth subdivision of section 144, are not tenable.
Judgment for the defendants on the demurrer, unless the plaintiffs within twenty days amend their complaint, costs of demurrer to defendant to abide event.*