
    The Abram French Co., Appellant, v. Philip Marx, Respondent.
    (City Court of New York—General Term
    May 1894.)
    An application to vacate a judgment on a technical objection to plaintiff’s capacity to sue. which does not appear on the face of the complaint, should not he granted.
    Appeal from order setting aside judgment.
    
      Hays & Greenbaum, for appellant.
    
      Samuel Mullen, for respondent.
   Ehrlich, Ch. J.

The application made by the defendant was for an order vacating and setting aside the judgment herein, and not to open the default as a matter of favor.

The application was not founded on any defense meritorious in its character, but upon a technical objection as to the plaintiff’s capacity to sue.

The objection did not appear on the face of the complaint, and was one that could not be urged by way of demurrer, but in the nature of things would have to be taken advantage of by special plea in the answer, calling upon the plaintiff to make proof that it had the necessary legal authority to transact business in this state.

We think the application made below should have been denied; if it was granted as matter of right such decision would be erroneous; and if granted as a matter of favor the discretion was not wisely exercised.

In either case the order appeared from would have to be reversed, with costs.

Van Wyck. J.. concurs.

Order reversed, with costs.  