Argentine Airlines v. Aircraft Dynamics Corp.

Owen McG-ivern, J. Defendant moves to dismiss the amended complaint pursuant to rule 106 (subds. 1, 2) and rule 107 (subds. 1, 2) of the Rules of Civil Practice. Only so much of the motion as is based on subdivision 2 of rule 106 need be passed upon. A previous motion under that provision addressed to the original complaint was granted by Mr. Justice Spector (N. Y. L. J., May 29, 1957, p. 6, col. 4). In the original complaint it was alleged that plaintiff was “ an agency of the Ministry of Transport of the Republic of Argentina ”. Mr. Justice Spector sustained, on the authority of Royal Norwegian Navy v. Smith Steel Co. (185 Misc. 880) defendant’s claim that the complaint was defective on its face since it did not appear that plaintiff was either a person or a corporation and since there was thus no showing that plaintiff had capacity to sue. No appeal having been taken, this decision is the law of this case. On the amended complaint there has been inserted, after the quoted words, the following 11 having the right and power under the Laws of the 273 Referee of Argentina to act as a private person and to sue and be sued in its own name.” This addition does not cure the defect. It is both conclusory and irrelevant. It is not the laws of Argentina but rather the laws of this State that determine the right to sue in our courts. “ The law of the forum determines the capacity of the party to sue ”. (New York Evening Post Co. v. Chaloner, 265 F. 204, 211, cert, dismissed 252 U. S. 591.) “A civil action can be maintained only in the name of a person in law, an entity, which the law of the forum can recognize as capable of possessing and asserting a right of action.” (MacAffer v. Boston & Maine R. R., 242 App. Div. 140, 144, revd. on other grounds 268 N. Y. 400.) The amended complaint fails to show that plaintiff has capacity to sue under New York law. It is therefor dismissed pursuant to subdivision 2 of rule 106 of the Rules of Civil Practice, with leave to replead within 20 days after service of a copy of this order and notice of entry thereof.