
    KINGSTON CARRIAGE CO. v. HUTTON.
    (Ulster County Court.
    July 30, 1895.)
    Corporations—Actions—Proof of Incorporation.
    Objection that plaintiff did not prove its incorporation by the best evidence cannot be made where defendant made no- answer, Code Civ. Proc. § 1776, providing that plaintiff need not prove incorporation unless the answer affirmatively alleges that it is not a corporation.
    Appeal from justice court.
    Action by the Kingston Carriage Company against Alexander Hutton. There was a judgment in favor of plaintiff, and defendant appeals.
    Affirmed.
    Brinnier & Newcomb, for appellant.
    Everett Fowler, for respondent.
   CLEARWATER, J.

The plaintiff brought suit in the court below, alleging in writing that it was a domestic corporation. The defendant did not appear or plead. The plaintiff’s manager testified it was incorporated, and proved its claim against the defendant, for which judgment was rendered; from which judgment the defendant now appeals, claiming that it should be reversed because, he having failed to appear or plead, the law imposed upon the plaintiff the burthen of proving every fact, evidence of which was necessary to justify the entry of judgment, by the best obtainable proof, and that oral testimony as to the plaintiff’s incorporation was incompetent and secondary.

Without discussing the question whether this testimony was secondary, of which I am not convinced, the claim of the defendant is untenable because of his entire failure to place himself in a position to raise the question. The Revised Statutes provided that, in suits brought by or against a domestic corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause the existence of such corporation unless the defendant shall have alleged in the answer in the action that the plaintiffs are not a corporation. 2 Rev. St. p. 458, § 3. By chapter 422 of the Laws of 1864, this provision was extended to all corporations, foreign or domestic, and when the additional chapters of the Code were adopted was embodied in it. Code Civ. Proc. § 1776. The rule is a familiar one, and has repeatedly been stated. In re New York, L. & W. Ry. Co., 99 N. Y. 12, 1 N. E. 27; Association v. Reed, 93 N. Y. 474; Manufacturing Co. v. Trowbridge, 68 Hun, 28, 22 N. Y. Supp. 674; Vulcan v. Myers, 58 Hun, 161, 11 N. Y. Supp. 663; Bengston v. Steamship Co., 31 Hun, 96.

Further discussion is useless, and the judgment must be affirmed, with costs.  