
    The Independent Trembowler Young Men’s Benevolent Association, Respondent, v. Morris Somach, Appellant.
    (Supreme Court, Appellate Term.
    February, 1907.)
    Pleading — Demurrer — Grounds of demurrer to complaint — Lack of legal capacity to sue — Must be taken by answer when.
    Where, in an action for breach of contract, the pleadings are oral and the answer is a general denial, a refusal to dismiss the complaint for failure to prove plaintiff’s capacity to sue is not error.
    In such case, the objection that plaintiff has not legal capacity to sue must be taken by answer.
    Where a corporation sues upon an oral contract, the official standing and authority of those who made the contract with defendant may be shown by parol evidence, as the bringing of the action is a ratification of their acts.
    Where, in an action for breach of an oral contract to furnish a hall for a ball upon a certain night,, it is not shown that, with the exception of the amount deposited at the time of the contract and the sum paid to watchers at the entrance of the hall to warn people that the ball would not be held there that night, the plaintiff suffered any damage nor that he made any attempt to secure another hall for the same night, the evidence warrants no more than nominal damages.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, fourth district, borough of Manhattan.
    Henry Kuntz, for appellant.
    Louis M. Block, for respondent.
   MacLean, J.

Hpon oral complaint the plaintiff claimed for breach of contract, and the defendant orally interposed a general denial, payment of breach of contract. There was, therefore, no issue as to the legal capacity of the plaintiff to sue, and the refusal of the trial justice to dismiss, upon motion by the defendant, for failure of the plaintiff to prove legal capacity, was not reversible error. The proper practice for the defendant was to interpose that objection by answer, as all that may be said is that it does not affirmatively appear from the pleadings that the plaintiff has capacity to sue, which would not be ground for demurrer. Phœnix Bank v. Donnell, 40 N. Y. 410. Mor was it reversible error herein to receive oral testimony as to the official standing and authority of those who, on behalf and in the name of the plaintiff, entered into a contract with the defendant, because, by suit upon that contract and for its breach, the plaintiff has ratified and so authorized their acts. Wilmot v. Richardson, 4 Abb. Ct. App. Doc. 614; Shoninger v. Peabody, 57 Conn. 42, 47. The trial justice rendered judgment in favor of the plaintiff for one hundred and twenty dollars damages, two dollars costs and fifteen dollars extra costs, but the evidence of damage was insufficient. There is no evidence of any attempt by the plaintiff to secure another hall for the same night on which the defendant had contracted to furnish the hall of which he testified he was the lessee; no sufficient evidence to support the cost of printing testified to by the plaintiff or proof that the printing was a total loss in consequence of the return in part of tickets sold for the evening recited in the contract; in a word, with the exception of the sum deposited at the time of the contract and possibly the sum paid to watchers at the entrance to the hall of the defendant to warn people that the ball would not be held there that night, there was no evidence to warrant more than nominal damage for the breach of the contract herein. The judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildeeslebve and Amend, JJ., concur.'

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