148 N.Y. 58 | NY | 1895
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The defendants insist that there is additional proof in the present case, which takes it out of the operation of our decision in the case between this same plaintiff and Schlegel. (
Upon the other point which has been pressed upon us, that the incorporation of the plaintiff was not proved, our views can be briefly stated. One of the defendants did not deny the legal incorporation. The other defendant did put it in issue. It may possibly be that when the plaintiff rested his case, the incorporation had not been strictly and fully proved as required by legal rules. But the defendant elected to proceed with the case and, before the close of all the evidence, the laws of the state of Illinois were in the case and showed that the certificate of incorporation was in substantial compliance with them. The point that it did not appear that the certificate was recorded in the office of the recorder of deeds of the county, as required by the Illinois law, was not distinctly taken, nor did the motion to dismiss suggest it. The objection was general. Had the defendants pointed out as a defect that which they now insist upon, it is quite possible that the plaintiff might have supplied the omission. The opportunity should have been afforded to it at any rate. We think, too, that there was enough in the evidence, perhaps, to show that the plaintiff had been recognized and treated as a corporation, not only by the defendants, but by the courts of the state of Illinois.
The argument that it appears that the capital stock was subscribed for, in part, by corporations and that such subscriptions were invalid under the law, is of no avail. That is a question for the People to raise through their proper officers and in appropriate proceedings. The defendants cannot raise it. At the furthest, it might be available in proceedings to vacate the charter — a point, however, we do not consider.
We do not think it necessary to review at greater length the questions, which the appellants have argued with so much *67 fullness. We think the case was, in the main, covered by the decision in the Schlegel case and that there was, in the present case, no material question for the jury to pass upon.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.