Ansonia Brass Co. v. Conner

Van Hoesen, J. — The complaint alleges that the plaintiff is a “ corporation duly created and existing, doing business in the city of ¡New York.” The answer denies any knowledge or information sufficient to form a belief as to the truth of that allegation. Whether or not the plaintiff was bound to offer any proof as to its corporate character depends upon the question as to whether it was a domestic corporation created under a statute of this state. If the plaintiff be a corporation created under a statute of this state it was unnecessary, under the pleadings as they stood, to introduce any evidence of its charter; but if the plaintiff is a corporation created by the law of any other state or country, it was bound, to. prove that [274] it was a corporate body, clothed with the right to sue. It will be seen that the complaint does not allege that the plaintiff was created a corporation under any statute of the state of Hew York, and the omission to make that allegation may have arisen from the fact that the plaintiff owes its existence to the laws of Connecticut. Where the complaint does not aver that the plaintiff is a corporation created under a statute of Hew York (there being no presumption that it was so created), the court must apply the old rule of the common law which required proof of the corporate character of the plaintiff when the plea put the existence of the corporation in issue. Oorporatio ml non was, therefore, one of the issues to be tried in this case. Again, the defendant alleged that the plaintiff had recovered a judgment against one Wilson. This the answer denied. Was the fact that a judgment against Wilson had been recovered by the plaintiff a fact essential to the existence of the cause of action ? If it were, it certainly was error to direct that the plaintiff should have judgment on the pleadings in this action without proof that a judgment against Wilson had ever been rendered. This action was for the failure to return an execution within sixty days. The foundation of the sheriff’s liability to the plaintiff is that he has neglected a duty which he owed to the plaintiff. There is no duty due from the sheriff to the plaintiff unless the latter had a judgment which he had an interest in having executed. Thus one of the elements of his cause of action is the possession of a judgment which he was entitled to collect by execution (Addason on Torts, p. 811). Just as in an action for not serving mesne process, or in an action for an escape,, or in an action for a false return, the plaintiff must prove that he had a good cause of action which entitled him to call on the sheriff to execute the process; so in an action for failing to return an execution he must show that he was a creditor, and that he had a right, as such, to place the writ in the sheriff’s hands and require it to be served and returned in [275] accordance with the practice of the court. Forsyth agt. Campbell (15 Hun, 236) is an authority, if authority were needed, directly in point. It appears from the case that when this action came on for trial the plaintiff moved for judgment on the pleadings, and notwithstanding the defendant’s opposition, the court ordered judgment in favor of the plaintiff, and sent the cause to another branch of the court that the plaintiff’s damages might be assessed. After the assessment of damages judgment was entered up from which an appeal was taken to the general term of the marine court, which affirmed the proceedings at the trial term. It is insisted that even if the plaintiff had no right to a judgment on the pleadings, the defendant cannot now complain because he did not mention in his notice of appeal the order of Justice Goepp, which gave the plaintiff judgment. The answer is that the Code, which was in force when the action was tried and the appeal taken, did not require the appellant to specify in his notice every order of which he complained. It was enough that the order involved the merits and necessarily affected the judgment, as the order of Judge Goepp unquestionably did. It is evident that there has been no trial at all of some of the material issues raised by the pleadings. Those issues must be tried, and decided in the plaintiff’s favor before a recovery can be had. The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event. J. F. Daly, J., concurs.