
    Otto Ruhl, as President, etc., App’lt, v. Frederick A. Ware, as President, etc., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed March 5, 1889.)
    
    Practice—Capacity to sue—When not appearing on pace op complaint MAY BE PUT IN ISSUE BY ANSWER—CODE ClV. PRO., § 1919.
    Where it nowhere appeared that the complaint placed the qualifications of members of an association upon the fact that they were not natual persons or legal persons, so that the defendants could question the legal capacity to sue by demurrer, Held, that the defendants, therefore, 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 section 1919, Code Civil Procedure, and that such an answer made an issue and was not virtually a demurrer.
    Appeal by plaintiff from an order denying his motion for an order requiring the defendant to elect by which of certain parts of an answer the defendant would abide.
    
      Charles F. Brandt, for app’lt; George W. Carr, for resp’t.
   Sedgwick, 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 Clubs, 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 Avas intended to raise the ques-. tian 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 defendants 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 the section, 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 must he taken that the complaint argumentively 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-county 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 defendants could question the legal capacity to sue, by demurrer. Therefore the defendants 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 provision of section 1919. Such an answer made an issue of fact and was not virtually a demurrer.

The order below should be affirmed, with ten dollars costs and disbursements, to be taxed.

Truax, J., concurs.  