
    First National Bank of Northampton, respondent, v. Ira E. Doying, impleaded, appellant.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed June 7, 1886.)
    
    1. Corporations—National bank—Complaint—What necessary to be
    ALLEGED UNDER SECTION 1775 OE THE CODE OF ClYIL PROCEDURE.
    A complaint stating that the plaintiff “was, and now is, a national hanking association incorporated and doing business under and by virtue of an act of congress, entitled ‘An act to provide a national currency,' ” but containing no allegation as to whether it is a foreign or domestic corporation, is defective in that particular.
    3. Same.
    Section 1775 of the Code of Civil Procedure, requires this allegation in every complaint by or against a corporation, and the defect can be taken advantage of by demurrer.
    Appeal from a judgment entered on an order of the general term of the city court of New York, affirming a judgment entered on an order of the special term of that court, overruling an amended demurrer as frivolous, and directing judgment.
   Per Curiam.

The action is on a promissory note. The

complaint alleges, “first, that at the times hereinafter mentioned, the plaintiff was, and now is, a national banking association incorporated and doing business under and by virtue of an act of congress, entitled, ‘An act to provide a national currency, ” etc., but contains no allegation as to whether it is a foreign or domestic corporation. For some inscrutable reason, section 1775 of the Code requires this allegation in every complaint, by or against a corporation.

The court below held that, inasmuch as it was alleged in the complaint that the plaintiff was incorporated under the act of congress, it was, from the very nature of its incorporation, a foreign corporation, and that where this was a self-evident fact, it added no force to the pleading to allege it was a foreign corporation.

The difficulty with this position is, that section 3343, sub-' ■division 18 of the Code, says: A “domestic corporation” is a “corporation created by or under the laws of the state, or located in the state i nd created by or under the laws of the United States. * * Every other corporation is a foreign corporation.” Therefore a national bank is either a foreign or domestic corporation, according to its location, within or without this state, and, as this is not specifically stated, the complaint is defective in that particular, and this defect can be taken advantage of by demurrer. Baker v. Star Printing and Publishing Co., 3 L. Bull., 29; Clegg v. Cramer, 3 How. [N. S.], 130; First Nat. Bank of Northampton v. Doping, decided at the March general term of this court, 1886.

The judgment must, therefore, be reversed, but as the defect complained of could mislead no one, and the demurrer is highly technical, the plaintiff is given leave to amend its complaint in any way it may be advised, within, six days after the service of an order reversing the judg-; ment on its attorneys; the costs of this appeal to abide the' event of the action, and with costs of prior proceedings in' the court below, at the discretion of that court.  