Barclay v. Quicksilver Mining Co.
New York Supreme Court
This was an appeal from an order of Special Term, overruling a demurrer to the complaint. The substantial facts stated in the complaint were : That in February, 1867, the State of Pennsylvania commenced an action in the Court of Common Pleas, of Dauphin county, of that State, against the Quicksilver Mining Company, a corporation created under its laws, and doing business therein upon an indebtedness of the defendant to the State in the sum of $27,112.25, with interest; that…
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This was an appeal from an order of Special Term, overruling a demurrer to the complaint. The substantial facts stated in the complaint were : That in February, 1867, the State of Pennsylvania commenced an action in the Court of Common Pleas, of Dauphin county, of that State, against the Quicksilver Mining Company, a corporation created under its laws, and doing business therein upon an indebtedness of the defendant to the State in the sum of $27,112.25, with interest; that the defendant therein appeared in the action by attorney, and such proceedings were had that judgment was entered…
1Opinion of the Court
By the Court—Gilbert, J.
The first ground of demurrer, namely, that the plaintiff has no legal capacity to sue, cannot be sustained, unless it appears on the face of the complaint that he has not such capacity. If the complaint merely fails to show the facts which confer the capacity to sue, the objection must be taken by answer. (Phenix Bk. v. Donnell, 40 N. Y. R., 412.)
In determining this question, we must assume that the plaintiff is vested with the title to the property which is the subject of the action, for the complaint contains an averment to that effect, and the demurrer admits the…
2Cases cited4 opinions
- The People Ex Rel. Crane v. . RyderNew York Court of Appeals · 1855
- Runk v. St. JohnNew York Supreme Court · 1859
- Seymour v. . SturgessNew York Court of Appeals · 1862
- People v. Mayor of New YorkNew York Supreme Court · 1858
3Cited by14 opinions
- Matter of Accounting of WaiteNew York Court of Appeals · 1885
- Union Guardian Trust Co. v. Broadway National Bank & Trust Co.New York Supreme Court · 1930
- Jackson v. DinesSupreme Court of Colorado · 1889
- Howarth v. AngleAppellate Division of the Supreme Court of the State of New York · 1899
- Le Fevre v. MatthewsAppellate Division of the Supreme Court of the State of New York · 1899
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