
    Clara Harmon, App’lt, v. Vanderbilt Hotel Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 18, 1894.)
    
    Pleadings—Complaint—Cobpobations.
    A complaint is not demurrable on the ground that it fails to state whether defendant is a foreign or domestic corporation.
    Appeal.from an interlocutory judgment sustaining a demurrer to the complaint.
    
      H. D. Birdsall, for app’lt; William Sulzer, for resp’t.
   Cullen, J.

—This is an appeal from an interlocutory judgment entered upon an order sustaining a demurrer to the plaintiff's complaint. The objection taken to the complaint is that, while it states that the defendant is a corporation, it fails to state whether it is a domestic or a foreign corporation, and, if foreign, under the laws of what sovereignty incorporated. That the complaint is defective in failing to make such an averment, which is required by § 1775 of the Code, cannot be doubted. But the question here involved is whether such defect is ground for demurrer, or the subject of motion. It has been the subject of numerous conflicting decisions in this court and in the superior city courts. The exact point has not been determined by the court of appeals, or passed on in this general term. We are therefore at liberty to decide it as a new question.

The grounds of demurrer are specified by § 488 of the Code. The only specified ground under which the demurrer in this case can be brought is that the complaint fails to state facts sufficient to constitute a cause of action; for the cause of action arose in this state, and, even if the defendant were a foreign corporation, the court would have jurisdiction of the subject of the action. The cause of action is the facts which constitute the grounds of the claim against the defendant. In Fox v. Erie Preserving Co., 93 N. Y. 54, it is said: “ 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.” This dictum is not obiter, as suggested, but strictly in point to the question involved in that case. It is true that the provisions of § 1775 of the Code were not under consideration in that case, and that the provision of that section that the complaint shall state the character of the corporation is mandatory. But § 481 is equally mandatory that the complaint shall specify the place of trial, and the names of all the parties. For defect in these respects, it is settled practice that demurrer will not lie, but that the remedy is by motion. If the complaint stated erroneously the character of the defendant,— whether a domestic or foreign corporation,—it would not affect the right of the plaintiff to recover. We do not see that an allegation can be deemed part of a cause of action, the successful controversion of which cannot defeat the action.

The order appealed from should be reversed, with costs, and judgment given for plaintiff on demurrer with costs, with leave to defendant to answer' within twenty days, on the payment of such costs. All concur.  