Toronto General Trust Co. v. Chicago, Burlington & Quincy Railroad

Macomber, J. The complaint was dismissed by the justice at the special term solely upon the ground that the plaintiff had not legal capacity to sue. A carefully considered opinion accompanies the decision of the court, in which we fully concur, and it is not needful to restate or enlarge upon the reasons there so cogently assigned. One observation only is required in addition to what has been said at the special term. The point is now made, apparently for the first time, that the incapacity of the plaintiff to sue was apparent upon the face of the complaint, and that such defect should have been taken by demurrer, and, not having been taken by demurrer, the same is deemed to be waived under the Code of Civil Procedure. This proposition is not maintainable, for it is alleged in the complaint that the “plaintiff was duly appointed trustee of the estate of George Hoyles Dunscomb, deceased, the testator above named, in the place and stead and as successor of Charles- H. Muirhead, deceased, and thereby the said plaintiff succeeded to all the rights and powers, as trustee, under the said will aforesaid, and became entitled to receive and hold said stock for the purposes of the trust.” Under this allegation of the complaint a demurrer could not have been successfully interposed. The great defect in the plaintiff’s case is that it was unable to establish by evidence this allegation in the complaint, which was put in issue, and which it became incumbent upon the plaintiff to establish, before a recovery could be had. The judgment should be affirmed, with costs. All concur. »