
    NICKERSON et al. v. CANTON MARBLE CO., Limited.
    (Supreme Court, Appellate Division, Third Department.
    November 16, 1898.)
    1. Corporations—Existence—Pleading and Proof.
    Plaintiffs need not prove the existence of defendant as a corporation, where the complaint alleged that defendant was a foreign corporation, and the answer merely denied that it was a foreign corporation, without alleging that it was not a corporation, as required by Code Civ. Proc. § 1776.
    2. Pleading—Verification—Issues.
    The verification of an answer cannot be considered in ascertaining the issues.
    8. Appeal—Equity—Adequate Remedy at Law.
    An objection to relief in an action in equity because there is an adequate remedy at law cannot be first urged on appeal.
    4. Same.
    The defense of an adequate remedy at law, as set forth in a defendant’s answer in equity, is not available on appeal to other defendants who did not plead it.
    6. Quieting Title—Cloud on Title—What Constitutes.
    Where the lessor has a right to terminate the lease, but extrinsic evidence is necessary to show such right, there is a cloud on his title.
    6.- Same—Possession.
    A party shown without objection to be in possession of the premises may have a cloud removed from his title, notwithstanding the complaint does not allege his possession.
    Appeal from trial term, St. Lawrence county.
    Action by Sherman L. Nickerson and another against the Canton Marble Company, Limited, impleaded with others, to have a mining lease canceled as a cloud on plaintiffs’ title. From a judgment entered on a decision for plaintiffs, defendant company appeals.
    Affirmed.
    Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.
    Charles L. Griffin, for appellant.
    John C. Keeler, for respondents.
   MERWIN, J.

On the 14th May, 1892, Sherman H. Nickerson and Sarah A. Nickerson, his wife, the plaintiffs herein, executed to James W. Carpenter, Jr., and others, a lease of certain premises in the town of Canton for the term of 99 years, with the right to quarry marble thereon and appropriate the same to their own use; the lessees agreeing to pay a royalty of 10 cents per ton, payable quarterly. The lessees agreed that, if at any time there should be a failure on their part to account for or pay over any sum due and payable,, within 30 days after it became due, ánd after’demand for the payment, then the lease might be terminated, and, at the option of the lessors, be held to he null and void. On the 7th January, 1893, the lessees assigned all their interest in the lease to the appellant; it being described in the assignment as a corporation organized under the laws of the state of Michigan. The royalty was afterwards, by agreement, increased to 15 cents a ton. The marble company entered upon the premises and commenced operations in the winter of 1893 or spring of 1894, and operated the quarry to about May 28, 1894, when it left the premises, and has done no quarrying thereon since. The plaintiff Sherman H. Nickerson testifies that since that time he has been in possession. There was evidence on the part of the plaintiffs that the marble company had made default in the payment of the royalties. The company seems to have claimed that it had not taken the amount of marble that the plaintiffs claimed it had. The defendants, how*ever, gave no evidence on the subject, and the trial court was justified in finding-that in this respect there had been a failure by the marble company to perform the conditions of the lease. Evidently the company did not make a success in quarrying, and owed more than it had means to pay. At the trial, no evidence was given .by the defendants, except an agreement between the marble company and S. H. Nickerson and David Shortsleeve, dated May 28, 1894, by which the company agreed that, if Nickerson and Shortsleeve would operate the quarry, they might have the use of the machinery there, and the net proceeds after the payment of all expenses were to be applied to the payment of debts’ due from the company to laborers. Nickerson and Shortsleeve entered upon the work, and continued for about 90 days, when they abandoned the work. The expenses were more than the proceeds, to the amount of several hundred dollars. The marble company did not perform its agreement as to the use of the machinery. There was a provision in the agreement that if, for any reason, Nicker-son and Shortsleeve should abandon the work, then the instrument should be null and void. In March, 1894, the marble company executed to the defendant the Continental Trust Company a mortgage upon all its rights under the instrument of May 1°4,1892, in trust for the payment of certain coupon bonds of the marble company. It was alleged in the complaint that no bonds had ever been issued. This is denied in the answers of the marble company and of the trust company. There was no proof on the subject at the trial. The trial court decided that the plaintiffs were entitled to have the lease of May 14, 1892, declared terminated, and canceled, upon the ground that the marble company had failed to perform its conditions, and under its provisions had forfeited its rights thereunder, and that by the terms thereof the plaintiffs are entitled to have the same declared void, and that, so far as the lease and mortgage affect the title of the. plaintiffs, they are such a cloud as the plaintiffs are entitled to have removed from their title. The marble company appeals.

The appellant claims -that its existence was not proved, and therefore the judgment was erroneous. In the complaint it was alleged' flsat the appellant was a foreign corporation. This was denied in Sts- answer, but there was in the answer no affirmative allegation- that it was not a corporation. It was therefore not necessary for the plaintiffs to prove upon the trial its existence. Code Civ. Proc. § 1776. The appellant claims that the answer is helped out by statements in the verification. Those statements, if in the answer, are not what the Code requires. Besides, we have not, I think, any right to go to the verification to ascertain what the issues are in the case.

The appellant claims that the plaintiffs had an adequate remedy at law, and therefore the action in equity was not proper. No such defense was set up by the appellant, nor was the point taken at the trial. The fact that some other defendant sets up such a defense does not help the appellant. “A defendant in an equity action cannot avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer; and where the facts alleged are sufficient to entitle plaintiff to relief in some form of action, and no objection has been made by defendant in his answer or on the trial, it is too late to raise the point after judgment or upon appeal.” Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292. The plaintiffs were, we think, properly granted relief. Extrinsic evidence was necessary in order to show the right of plaintiffs to declare the termination of the lease. Paper Co. v. O’Dougherty, 81 N. Y. 482. There was a cloud upon plaintiffs’ title. The plaintiffs were in possession, as shown without objection, and so had a right to resort to equity. 1 Story, Eq. Jur. (12th Ed.) § 711a. See, also, Allegany Oil Co. v. Bradford Oil Co., 21 Hun, 26, affirmed 86 N. Y. 638.

There was no waiver by plaintiffs of the default in the payment of royalties. The appellant claims that the agreement of May 28, 1894, was, in effect, a waiver that bound the plaintiffs. It does not, however, appear that at that date the royalties now claimed by the plaintiffs were due.

The case being in equity, the defendants had an opportunity to present any facts which would entitle them to equitable consideration. None were presented. We find no good ground for reversing the judgment.

Judgment affirmed, with costs. All concur.  