
    IRVING NATIONAL BANK v. CORBETT.
    N. Y. Supreme Court, First Department;
    
    
      Special Term and Chambers,
    
    
      January, 1881.
    Pleading.—Corporation.—Code Civ. Pro., §§ 488, 1775.
    Subdivision 8 of section 488 of the Code of Civil Procedure has no applicability to the capacity of the plaintiff to sue, but relates only to the statement of facts constituting the cause of action.
    When the complaint in an action by a plaintiff, designated as a National Bank, does not aver that the plaintiff is a corporation, as required by section 1775 of the Code of Civil Procedure, it cannot be assumed, in aid of a demurrer, that the action is brought by a corporation, but the objection must be taken by answer.
    Motion for judgment on a demurrer as frivolous.
    This action was brought by the Irving National Bank against David Corbett, to recover on a promissory note.
    It was not alleged in, nor did it appear by the complaint, except by the name of the plaintiff, that it was a corporation.
    The defendant demurred.
    
      Lindsay & Flammer, for plaintiff and motion,
    cited: Code Civ. Pro. § 1776; Phœnix Bank of N. Y. v. Donnell, 40 N. Y. 410; Davenport v. Sniffen, 1 Barb. 228.
    
      Wehle & Jordan, for defendant, opposed.
   Barrett, J.

The demurrer is limited to the eighth ground specified in section 488 of the Code of Civil Procedure, namely, that the complaint does not state facts sufficient to constitute a cause of action. That ground has no applicability to the capacity of the plaintiff to sue (40 N. Y. 410). It relates only to the statement of facts constituting the cause of action. Here that statement is sufficient. The real objection is that it is not averred, as required by section 1770, that the plaintiff is a corporation. But we cannot assume, in aid of the demurrer, that the action is brought by a corporation. If it is, the objection should be taken by answer. The complaint does not fail to state facts sufficient to constitute a cause of action (even if it fails . to show legal capacity to sue) merely because there is no averment that the plaintiff is a corporation.

The motion must be granted, with $10 costs.

There was no appeal.  