68 N.Y.S. 325 | N.Y. App. Div. | 1901
The plaintiff brings this action as the assignee of the Bernard’s Pharmacy, a foreign corporation, upon an undertaking furnished by the respondent, the Reid Icé Cream Company, for the purpose of securing an attachment in an action brought by it against the Bernard’s Pharmacy. On motion this attachment was vacated and set aside, and the claim for damages alleged to have been sustained by the Bernard’s Pharmacy by reason of this attachment was assigned to the plaintiff, who commenced this action against the sureties mentioned in the said undertaking, William J. Weller and William M. Reger. The respondent was not a party to the said undertaking, and the plaintiff brought his action only against the sureties, but on the 27th day of December, 1899, the Reid Ice Cream Company, alleging that it had an interest in the subject-matter of this action, made application to be made a party defendant, which application was granted by the court at Special Term, and it was permitted to serve an answer to the complaint, which it thereafter and on February 13, 1900, amended. There was no appeal from the order permitting the respondent to intervene, and it must be assumed, therefore, that the Reid Ice Cream Company has an interest in the subject-matter, and that any defense which may be legally made is open to the respondent to defeat the claim of the plaintiff against the sureties of the respondent. The amended answer sets up five defenses, to four of which the plaintiff demurs, and from the interlocutory judgment overruling the demurrer, appeal comes to this court.
The demurrer to the second defense is based upon the ground that the same is insufficient in law upon the face thereof. This second defense sets forth that the Bernard’s Pharmacy, a foreign corporation, has not paid to the State Treasurer the license tax required by
The answer alleges that the Bernard’s Pharmacy before doing . business in the State of New York and on or about the 26th day of May, 1897, duly complied with the provisions of section 15 of the General Corporation Law (Laws of 1892, chap. 687), and procured from the Secretary of State of New York the certificate mentioned and described in said section; that the principal place of' business and office of said Bernard’s Pharmacy was fixed by its charter at the then city (now borough) of Brooklyn, and that it owned and carried ' bn a drug business at said, place from about the time of its incorporation in May, 1897, until the latter part of December, 1898, when it sold or transferred all of its assets and property to one William Agne,. and ceased doing business entirely, being then insolvent; that thereafter the cause of action arose and accrued in favor of said Bernard’s Pharmacy against these defendants and each of them; that thereafter and on or about the 12th day of July,. 1899, the said Bernard’s Pharmacy assigned and transferred the said cause of action to this plaintiff, as set forth in the complaint, who thereafter and in the month of October, 1899, commenced this action upon said cause of action ; that the said Bernard’s' Pharmacy, although authorized to do business under the General Corporation Law, has not paid to the
As to the third defense, the respondent alleges in effect that the Bernard’s Pharmacy had no legal organization at the time of the assignment of the alleged claim to the plaintiff, and that the assignment is not the act of the corporation. Clearly the plaintiff must show that he holds a good assignment of the claim, and the affirmative defense that the corporation had ceased to exist could not be presented under the general denial of the respondent.. The demurrer was properly overruled as to this defense.
The fourth defense, that the Bernard’s Pharmacy had ceased to exist as a corporation at the time the alleged cause of action is said to have accrued, is a good defense if it is established that there was no such corporation, for a cause of action cannot be said to have been created in favor of a corporation which had passed out of existence before the cause of action came into being. ■
The demurrer to the fifth defense raises the most serious ques
The interlocutory judgment appealed from should be affirmed, with costs.
All concurred, except Sewell, J., taking no part.
Interlocutory judgment affirmed, with costs.