
    OTTO RUHL, as President, &c., Appellant v. FREDERICK A. WARE, as President, &c., Respondent.
    
      Legal capacity to sue—As to sufficient facts not appearing to call for a demurrer—Answer when not virtually a demurrer.
    
    The complaint alleged that plaintiff is the president of an association consisting of seven “ members and upwards.” It referred to the constitution and by-laws annexed and made them a part of the complaint. It then proceeded to set forth the supposed cause of action. It had annexed to it a list of names purporting to be a list of the officers of the association, but it did not refer to it; nor did the constitution show that the names in the list were of persons who had been chosen to be officers. The constitution contained a provision that any amateur club or cross country organization should be eligible to membership, but it nowhere appeared that such organizations were not meant to be incorporated associations.
    The question presented was, whether sufficient appeared on the face of the complaint to enable the defendant to test, by demurrer, the legal capacity of the plaintiff to sue, thus rendering denials in the answer that plaintiff is president of an association of seven members and upwards, and that the association, of which he sues as president, is one of seven persons and upwards, and affirmative averments that the members of that association are not persons within the meaning of the Code of Civil Procedure, that no one of its members is a natural person and that seven of them are unincorporated, equivalent only to a demurrer for want of legal capacity to sue and therefore improperly joined with denials of, and defences to, the alleged cause of action.
    
      Held, that defendant could not question the legal capacity to sue by demurrer, but was obliged to raiste it by answer setting forth the requisite facts, which answer was not virtually a demurrer.
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided March 5, 1889.
    Appeal by plaintiff from an order denying bis motion for an order requiring' the defendant to elect by which of certain parts of an answer the defendant would abide.
    
      His motion was founded on his affidavit in which he set forth : “The.object of this motion is to require the defendant to elect as to which pleading he will abide by. The answer, as served, contains an allegation that the persons who constitute the association of which Otto Ruhl is president are not persons within the meaning of section 1919, of the Code of Civil Procedure, and the same pleading also denies certain allegations of fact; the defendant, therefore, has answered and demurred to the same cause of action in the complaint, which is not permissible.”
    Other matters appear in the opinion.
    
      Brandt & Bobbins, attorneys, and Charles F. Brandt of counsel for appellant, argued :—
    I. When a defendant demurs substantially to a complaint, although he does not use the word “ demur” and at the same time answers the balance of the complaint, the only remedy is to require him to elect which pleading he will abide by. Slocum v. Wheeler, 4 How. 373 ; Spellman v. Weider, 5 Ib. 5; Munn v. Barnum, 12 Ib. 563. Section 487 Code says: “ The only pleading on the part of the defendant is either a demurrer, or an answer.”
    II. The next question therefore is, do the objections, if any, that the plaintiff has not legal capacity to sue appear upon the face of the complaint. The appellant claims that those pleaded in the answer do so appear, and for these reasons: It appears by a reference to the constitution of the National Cross Country Association, that any amateur athletic club, or cross country organization shall be eligible to membership. In other words, the National Cross Country Association is composed primarily of clubs, or cross country organizations. These clubs or organizations, however, cannot act or speak of themselves, and so the constitution provides further on how the different clubs composing the association shall be represented at its deliberations, the exact language being that “ the management of the association shall be vested in a committee consisting of one representative from each club.” In short, the National Cross Country Association is composed of the representatives of various athletic clubs; these representatives are natural persons, as appears by a list of its present officers and executive committee.
    
      George W. Carr, attorney and of counsel for respondent, argued:—
    I. The allegations in the answer relative to plaintiff’s incapacity to sue are not in form a demurrer, unless it appears affirmatively on the face of the complaint that plaintiff has not legal capacity to sue. Phoenix Bank v. Donnell, 40 N. Y. 410. That case holds clearly that to make a demurrer the proper pleading it is not sufficient that the complaint does not show capacity to sue, but that it must affirmatively show incapacity to sue.
    II. It does not appear upon the face of this complaint that plaintiff has not capacity to sue. He therein alleges that he is president of an association of seven members and upwards, and, by the constitution, made a part of the complaint, it appears that any amateur athletic club or cross country organization is eligible to membership, and the list of clubs from which the officers named were chosen shows more than seven clubs as members. Inferentially natural persons are not eligible to membership. The court will take judicial notice of the law allowing athletic clubs and cross country organizations to become incorporated by complying with its provisions; and the word “any,” which begins the article relative to membership, includes clubs and organizations of that character, both incorporated and unincorporated. For aught that appears upon the face of the complaint, the members composing the association of Avhich plaintiff claims to be president may all be incorporated, and, if they were, defendant admits that they would be persons in the sense used in section 1919 ; but, at the same time, he denies that unincorporated clubs and organizations would be such persons. If the constitution had provided that only unincorporated clubs could be members, or if the complaint had alleged that only unincorporated clubs.were members, there would be good ground for claiming that the defect as to plaintiff’s capacity appeared upon the face of the complaint, and that defendant’s allegations constituted a demurrer.
    TIT. The cases cited by plaintiff’s counsel are inapplicable. The case cited in the 4th of Howard, page 373, distinctly maintains the proposition advanced by defendant, and warrants the court in allowing the answer to stand as drawn.
   By the Court.—Sedgwick, Ch. J.

The complaint alleged that plaintiff was president of the National Cross Country Association of America, an association of seven members and upwards ; that said association was organized on or about, etc., and that it then and there adopted a constitution and by-laws for its own- government, and “plaintiff begs leave to refer to said constitution and by-laws and hereby makes them a part of this complaint.” The complaint proceeded to state the supposed cause of action. After the verification, a list was added headed, “ officers of the National Cross Country Association of America, .President Otto Ruhl, New York Athletic Club, Vice President William Halpin, Olympic Athletic Club, etc. etc.,' and then Constitution, etc., Article 1, etc., and then By-laws, article 1, etc.”

The answer put in issue the allegations of the complaint as to the supposed cause of action, first however averring that, “excepting the Missouri Athletic Association and Manhattan Athletic Club, the members of said association are not persons in the meaning indicated in the Code of Civil Procedure; that no one of the members of said association is a natural person, and that seven of said members are not incorporated and therefore not legal persons.”

The motion and the argument at the bar did not regard the quality of the pleading on either side, excepting as it was conceded by both sides, that the matter that has been extracted from the answer was intended to raise the question of whether plaintiff had legal capacity to sue. The plaintiff contends that the facts averred in this part of the answer appeared upon the face of the complaint and that therefore the defendant was bound by the Code to raise the question as to capacity to sue by demurrer, and that the answer was virtually a demurrer. It is further contended that the defendant could not demur and answer as to the cause of action in the same pleading. I do not think it necessary to decide as to the validity of the last proposition. The defendant contends that the facts on which he has a right to question the plaintiff’s capacity to sue, do not appear in the complaint.

As to such a capacity, § 1919, Code Civil Procedure says, that an action may be maintained by the president of an unincorporated association consisting of seven or more persons. The complaint, however, avers an association not of seven persons but of “ seven members and upwards.” As the plaintiff’s motion did not assume that this was to signify anything different from seven persons,” it mustbe taken that the complaint argumentatively implied, that the members were persons legally qualified to be members. The addendum to the complaint of a list of names of persons purporting to be officers, had not been referred to in the complaint, so that it may be guessed that the complaint meant that such persons were the members. The constitution which was referred to in the complaint did not show that the names in the list were of persons who had been chosen to be officers. And as to the constitution providing that any amateur club or cross country organization should be eligible to membership in the association, it nowhere appeared that such organizations were not meant to be incorporated associations.

I think, it nowhere appeared, that the complaint placed the qualifications of the members upon the fact that they were not natural persons, or legal persons, so that the defendant could question the legal capacity to sue by demurrer. Therefore the defendant had the right to aver in the answer the existence of facts, which if proved would show that the association represented by the plaintiff, as president, was not empowered to sue through its president under the provisions of § 1919. Such an answer made an issue of fact and was not virtually a demurrer.

The order below, should be affirmed with $10 costs and disbursements to be taxed.

Truax, J., concurred.  