
    American Type Founders’ Co., App’lt, v. Charles S. Conner, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 2, 1894.)
    
    1. Sale—Books of account.
    The possession by the vendor of the incorporeal rights, to which books of account are memoranda merely, does not entitle him to the ownership of such books as an incident to such incorporeal rights, in opposition to the vendee’s title to such books under an express bill of sale.
    S. Pleadings—Demurrer.
    Where the necessary facts, upon which an objection that the plaintiff has not legal capacity "to sue can be predicated, appear in the complaint, a failure to present such objection by pleading amounts to a waiver of the same.
    3. Corporation—Action.
    An action of replevin by a foreign stock corporation is not interdicted by § 15, chap. 687 of 1893, in the absence of the certificate provided for therein.
    Appeal "by the plaintiff from a judgment of the district court in the city of Kew York, for the Seventh judicial district, rendered upon a trial before the justice thereof without a jury. The nature of the action and the material facts are stated in the opinion.
    
      Gharles de Hart Brower, for app’lt; Epstein Bros., for resp’t.
   GrlEGERiCH, J.

Thisaction was brought to recover the possession of a cash book and ledger of the foundry business of “James Conner’s Sons,” which business was sold by the proprietors thereof to one Thomas B. Odell, who sold the same to the plaintiff. The plaintiff’s alleged title to the books in question rests upon the following clause in the bill of sale to Odell, plaintiff’s transferror, namely, “all other effects and assets of every kind in and about the premises or used in connection with the business, including also its good will.” It appears in evidence that these books were in the safe of the foundry business when it was transferred by the proprietors thereof, and were used regularly in the plaintiff’s business until they were taken away by the defendant upon his resignation as sub-manager of the plaintiff; that the value of the good will to the plaintiff would be seriously impaired by their retention; that the plaintiff offered to allow the defendant access to the books in question, but this offer was declined by defendant, who claimed ownership thereof. Under the above very comprehensive clause, it is clear that plaintiff acquired title to said books among the other effects and assets assigned. But the justice awarded their possession to the defendants; the judgment, as far as it appears, being founded on the facts that the current book accounts outstanding in favor of the proprietors of “James Connor’s Sons” foundry business, were retained for their benefit when the business itself was sold. We are of opinion that this conclusion cannot find legal support.

The corporeal chattels, the books themselves, were obviously included among the property sold, and it cannot be said that the possession by the vendor of the incorporeal rights to which these chattels were memoranda merely entitled him to the ownership of such chattels as an incident to such incorporeal rights in opposition to the vendee’s title under an express bill of sale. The rule with reference to a transfer of debts and their incident security, is that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. “ The transfer of an accessory to a debt does not transfer the debt. Accessorium non trahit principóle. When the principal and incident are separable, and the incident is transferred, it becomes the principal as between the parties to the transfer, and the principal to which it was originally an accessory becomes either absolutely extinguished or temporarily suspended.” Battle v. Coit, 26 N. Y., 406. A fortiori the transfer of mere memoranda of a claim cannot be affected by the retention of the claim itself. It is the express act of transferring the chattels which must necessarily govern in ascertaining the nature -of the transaction, not the passive retention of the incorporeal right; expressum facit cessare taciturn. If the chattels in suit were to be excluded from the operation of the general clause in the bill of sale before referred to, the intention should be ascertained from the language of the instrument itself. Albright v. Voorhies, 36 Hun, 441. Our conclusion is that upon the record submitted the plaintiff was entitled to the possession of the books in question. The justice assessed the intrinsic value of the chattels in suit at forty-five dollars, which is supported by the evidence, and the objection to the jurisdiction of the court was, therefore, properly disregarded. .

The motion to dismiss the complaint, based upon the ground that the plaintiff had not legal capacity to sue, was properly denied. The necessary facts upon which this objection could be predicated appear in the complaint, and, therefore, the failure to present the objection by pleading amounts to a waiver of the same. Code Civ. Pro., §§ 498-499 ; Nanz v. Oakley, 19 Civ. Pro. Rep., 246. Moreover, it does not appear that the certificate provided for by § 15, chap. 687, Laws 1892, was requisite to the maintenance of this action by the plaintiff. By the terms of such section a foreign stock corporation may not maintain any action upon any contract made within the state in the absence of such a certificate. An action for replevin, however, is not interdicted by such law, the same being purely ex delicto. See Witty v. Campbell, 44 N. Y., 411.

For the reasons above cited the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.  