28 N.Y.S. 65 | The Superior Court of the City of New York and Buffalo | 1894
Plaintiffs allege in their complaint that the defendant Granite State Provident Association “is a foreign corporation.” This defendant corporation demurred to the complaint upon the ground “that it does not state facts sufficient to constitute a cause of action against said defendant.” The court below sustained the demurrer upon the ground that plaintiffs omitted to allege the state, country, or government by or under whose laws the demurring defendant was created. The Code of Civil Procedure (section 1775) provides as follows:
“In an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation; must state whether it is a domestic or foreign corporation, and if the latter, the state, country or government by or under whose laws it was created.”
It is the contention of the respondent that the complaint omits an allegation required by law, and is, therefore, demurrable. A somewhat sharp conflict of authorities is presented by both special and general term decisions bearing upon the question we are here called upon to decide. We favor the authorities which support plaintiffs’ claim, that the omission is of a formal allegation, which offers no ground for demurrer. The fact omitted does not go to the cause of action, and is, therefore, not demurrable. In Fox v. Preserving Co., 93 N. Y. 54, the court of appeals say: “The allegation that defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.” If the allegation as to the corporate character of the de
