Park Bank v. Tilton

15 Abb. Pr. 384 | N.Y. Sup. Ct. | 1863

Lead Opinion

By the Court.^*—Clerke, J.

I. The defendant has not pleaded in such a manner as to oblige the plaintiff to prove its corporate eKistence. A general denial is not sufficient; the nonexistence of the corporation must be expressly pleaded. (Bank of Genesee a. Patchin Bank, 13 N. Y., 313.) It is, therefore, of no consequence whether the court erred or not in admitting the certificate of the incorporation of the bank, under the objection that the certificate was insufficient.

II. Although, strictly speaking, the question excluded may not be improper, on the cross-examination, yet as evidence was previously given by the witness which was a substantial answer to the question, and as the testimony of Perry shows that the defendant could not have been injured by the exclusion, the alleged error is not sufficiently serious to authorize a new trial. Judgment should be affirmed with costs.

* Present, Sutherland, P. J., Ingraham and Clerke, JJ.

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Concurrence Opinion

Sutherland, P. J.

I concur in the conclusion to which Judge Gierke has arrived.