
    The Belsena Coal Mining Co., Appellant, v. The Liberty Dredging Co., Respondent.
    (Supreme Court, Appellate Term,
    April, 1899.)
    1. City Court of Hew York—Severance of action is discretionary and not appealable.
    An application to the City Court of the city of New York made by the plaintiff for the severance of an action as to certain counterclaims is addressed to the discretion of that court and is not appeal-able.
    8. Foreign corporation — Defense that it has not capacity to sue is not sham.
    A verified allegation upon information and belief that the plaintiff, a foreign corporation, had not capacity to sue on a contract made in the State of New York because it had not complied with and was acting contrary to our statute relative to the transaction of business in this state by such corporations, cannot be stricken out as sham, as the defendant is entitled to a jury trial of such a defense.
    Belsena Goal Mining Co. v. Liberty Dredging Co., 26 Misc. Rep. 846, affirmed.
    Appeal from an order of the General Term of the City Court affirming an order entered on the decision of a justice of said court.
    Gould & Wilkie (John L. Wilkie and H. Winslow Thayer, of counsel), for appellant.
    Charles Goldzier, for respondent.
   MacLean, J.

Among other things, motion was made herein for severance of the action as to certain counterclaims set up in the answer, and for striking out as sham two defenses, one of specific denials claimed to be nearly in the very terms of the com-. plaint, and the other of allegations that the contract in question. was made in the state of Eew York by a foreign corporation, the plaintiff, which had not complied with,, and was,, acting contrary, to the statute relating to the transaction, of business in this state by foreign corporations. '

So much of the application as was for severance was addressed to the discretion of the City Court and is not here appealable.

Passing by tbe question whether the denials were so precisély in the terms of the complaint^ as to be negatives pregnant, or no defence at all, to the allegations that the plaintiff had not capacity to sue, it is to be held that these allegations are allegations of a substantial defense which, when verified as. here, even if made,,, as. here also, upon information and belief, .might not be stricken out as sham upon affidavits,' however earnest and cogent be the statement of the affiants as tó the falsity of the defendant’s averments, for the defendant is entitled to a trial upon that defense by a-jury. That, is secured by the Constitution. Art. I, § 2. Against loss or inconvenience from the consequent delay - the plaintiff has. no present legal remedy. As suggested in our court ■ of' last resort, the plaintiff, if it be aggrieved by falsehood in the verification of the answer, may bring help to others, if not to itself, if it perform the duty incumbent ripen every good citizen to prosecute those known to be guilty of perjury.” ' Wayland v. Tysen, 45 N. Y. 281. The-order appealed from- should be affirmed.

. Ebeedman, P. J.,. and Leventbitt, J.,' concur.

Order affirmed, with costs to respondent.  