| N.Y. App. Div. | May 15, 1900
The demurrer to the complaint is interposed upon three grounds: That no cause of action is alleged; that plaintiff has no legal capacity to maintain this action, and that there is a misjoinder of parties plaintiff.
I think it plain that there is a cause of action alleged. Whether this alleged cause of action can be maintained, in the name of the People on the relation of a party in interest, is the only serious question presented.
■ The complaint states that defendant was- organized as a domestic corporation in 1887. “ That the defendant, instead of exercising its corporate powers, as required by law, has never engaged in its lawful and ordinary business. * * * Such omission or suspen- - sion of. said business having been not only for a year, but ever since the said defendant was incorporated as aforesaid, it having failed to exercise its corporate powers necessary to enable it to transact the said business * * - * and thereby the said defendant has forfeited its corporate rights, privileges and franchises.” This is not an' ambiguous-declaration, nor is it susceptible of more than- a single meaning.- It is a declaration, in a single, count, that from the date of organization this corporation -has been dormant or dead ; that its creators failed to put into it that breath of life which the statute says must be put in and must be evidenced by. movement in the line of the purpose for which it was organized. This inaction from the beginning is conclusive evidence that it is dead, and that it should be buried out of sight. In such a case, an action will lie to judicially declare the death and administer the assets, if any there- be. But by whom may the action be brought ?
Section 1785 of the Codo of Civil Procedure provides that such an action may be maintained to procure a judgment dissolving a corporation “ Where it has suspended its ordinary and lawful business for atyleast one year.” I do not think this complaint can be said to have been ■ framed under that provision. Its wording precludes
Section 31 of the General Corporation Law (Laws of 1892, chap. 687) provides as to a corporation of this character that if it “ shall not organize and commence the transaction of its business, or undertake the discharge of its corporate duties within two years from the date of its incorporation, its corporate powers shall cease.”' This is
If I am correct in my conclusion, that this action is in fact brought and properly brought, as here entitled, under section 1798 of the Code, leave of the court to bring it is essential, and, I think, should be alleged. While I do not find that the court has in any'case directly so declared, neither do I find that it has declared to the contrary, and the general principles' governing in practice seem to require that all facts necessary to show a cause of action, and also the right to the remedy sought, should be alleged. • But, in a way, the complaint does allege'this leave of the court. I think a general denial' would raise the issue as to whether the leave had been granted. This is not a fact which pertains to the cause of action itself, concerning which the allegations should be, not only concise, but plain and direct; any form of statement from which the meaning may be' drawn that leave to present the cause of action has been granted ought to be sufficient, and that, from the language used in the complaint, is clearly understood here.
I think, for the reasons stated, that the interlocutory judgment overruling the demurrer should be affirmed, with costs,' and the usual leave should be given to answer over on payment of the costs of this court and at- Special Term.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to answer over upon payment of costs of this appeal and of the demurrer within twenty days after service of a copy of this order.