
    Louis E. Fraser et al., Appellants, v. The Granite State Provident Association, Impleaded, Respondent.
    (New York Superior Court—General Term,
    April, 1894.)
    An omission to allege in a complaint against a foreign corporation the state, country or government by or under whose laws it was created is a defect of form and not one of substance which can be taken advantage of by demurrer.
    The remedy in such case is by motion.
    Appeal from order of Special Term sustaining a demurrer, and from the interlocutory and final judgments entered thereon
    
      D. M. Porter, for appellants.
    
      Philip Carpenter, for respondent.
   Gildersleeve, J.

Plaintiffs allege in their complaint that the defendant Granite State Provident Association “is a foreign corporation.” This defendant corporation demurred to the complaint, upon the ground “ that it does not state facts sufficient to constitute a cause of action against said defendant.” The court below sustained "the demurrer, upon the ground that plaintiffs omitted to allege the state, country or government by or under whose laws the demurring defendant was created.

The Code of Civil Procedure (§ 1775) provides as follows: In an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation, and if the latter, the state, country or government by or under whose laws it was created.”

It is the contention of the respondent that the complaint omits an allegation required by law, and is, therefore, demurrable.

A somewhat sharp conflict of authorities is presented by both Special and General Term decisions bearing upon the question we are here called upon to decide. We favor the authorities which support plaintiffs’ claim that the omission is of a formal allegation, which offers no ground for demurrer. The fact omitted does not go to the cause of action, and is, therefore, not demurrable.

In Fox v. Erie P. Co., 93 N. Y. 54, the Court of Appeals says: “ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.”

If the allegation as to the corporate character of the defendant may be omitted, and a cause of action still be stated, the defect under consideration, which is an omission to set forth the state, country or government by or under whose laws the alleged foreign corporation was created, cannot be said to be one of substance which can be taken advantage of by demurrer. The cause of action herein is not dependent upon the fact whether the corporation is domestic or foreign, and, if foreign, it is immaterial to the cause of action to what state, country or government the corporation is indebted for its existence.

It is true that section 1775 of the Code entitles the defendant corporation to require the plaintiffs to advise it, by statement in the complaint, as to what was the state, country or government by or under whose laws the corporation was created. But this right of the defendant corporation must be obtained by motion. Laney v. Laney, 33 N. Y. St. Repr. 673; Rothchild v. Grand Trunk R. R. Co., 30 id. 642; Haefner v. Grumme, 10 N. Y. Civ. Proc. Rep. 176.

The final judgment, interlocutory judgment and order sustaining the demurrer must be reversed, with costs, and the respondent permitted to answer on payment of costs within ten days after the entry of the judgment of reversal.

Sedgwick, Ch. J., and Dugro, J., concur.

Judgments and order reversed, with costs, and respondent permitted to answer on payment of costs.  