Phenix Bank of New York v. Donnell
New York Supreme Court
APPEAL from an order made at a special term, overruling a demurrer to the complaint. The complaint was in the name of “The Phenix Bank of the city of New York, plaintiffs in the above entitled action," without any statement or averment of its incorporation.
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APPEAL from an order made at a special term, overruling a demurrer to the complaint. The complaint was in the name of “The Phenix Bank of the city of New York, plaintiffs in the above entitled action," without any statement or averment of its incorporation. The defendant demurred, and stated the following grounds of demurrer: 1. That it appeared by the complaint that the plaintiff had not legal capacity to sue. 2. That it did not appear that the plaintiff was a corporation, duly incorporated and entitled to sue. 3. That the complaint did not state facts sufficient to constitute a cause of…
1ConcurrenceSutherland, J.
I concur in the conclusion. I am willing, out of respect for the decisions in the Union Mutual Ins. Co. v. Osgood, (1 Duer, 707,) Kennedy v. Cotton, (28 Barb. 63,) and Shoe and Leather Bank v. Brown, (18 How. Pr. Rep. 308,) to hold that where, as in this case, the plaintiff sues hy an appropriate corporate name, it is not necessary to expressly aver in the complaint that the plaintiff is a corporation, on the ground that in such a case there is in the complaint an implied averment that the plaintiff is a corporation; though it appears to me that the English cases and the cases in this state,…
2Cases cited3 opinions
- Union Mutual Insurance v. Osgood & AldenThe Superior Court of New York City · 1853
- Kennedy v. CottonNew York Supreme Court · 1858
- Shoe & Leather Bank v. BrownNew York Supreme Court · 1859