11 Misc. 428 | New York Court of Common Pleas | 1895
In an action by a foreign corporation, the
plaintiff need not prove upon the trial the existence of the corporation as alleged in the complaint, unless the answer contains an affirmative allegation that the plaintiff is not a corporation. Code Civ. Proc. § 1776. A denial, upon information and belief, that plaintiff is a corporation, is not such an “affirmative allegation.” Vulcan v. Myers, 58 Hun, 162, 11 N. Y. Supp. 663; Association v. Read, 93 N. Y. 474; Bengston v. Steamship Co., 31 Hun, 96. By section 1779 of the Code, section 1776 is made to apply to foreign corporations. Vulcan v. Myers, supra. It is not, therefore, incumbent upon plaintiff to prove its corporate existence.
The machine was delivered to and accepted by defendant. According to the terms of the contract of sale, defendant paid down $25, and gave ten notes of $15 each, and one for $20, payable on succeeding months, for the remainder of the purchase price. Two of these $15 notes were paid, and the remainder were not. This action is brought to recover on the remaining eight, amounting to $120 in all. At the time of the delivery of the machine, the agent gave defendant a written agreement to keep the cash register in repair, from ordinary wear and tear, for two years, free of charge. Defendant contends that this agreement was a condition precedent to his performance of the contract, and that, by reason of plaintiff’s failure to keep the machine in repair, he was justified in tendering back the