
    John M. Burtsell, Respondent, v. Jonas C. H. Tupper, Appellant.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Few York, eleventh district, borough of Manhattan.
    G. Finck, for appellant.
    M. J. Joyce, for respondent.
   Per Curiam.

Irrespective ■ of the alleged demerits in the answer, the defendant’s motion to dismiss the complaint because of failure to state facts sufficient to constitute a cause of action should have been granted. ' That pleading is defective from the omission to allege the fact of the nonpayment of the face amount of the capital stock issued at the time the debt to the plaintiff was incurred, and also the number of shares held by the defendant. The plaintiff is in any event bound to present to the court a cause of action, when his having done so is properly questioned. ’

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed and new trial ordered, with costs to abide event.  