
    Charles E. Wright & Company, Respondent, v. Isaac N. Faulkner et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Pleading: Complaint or declaration. — The right or capacity to sue; Waiver of objections — Objections to complaint.
    Where, in an action by a foreign corporation to recover for goods sold and delivered, the complaint contains no allegation that plaintiff is a stock corporation and it does not appear that it was doing business in this State, a motion for a nonsuit, because of its omission to allege compliance with section 15 of the Stock Corporation Law, is properly denied.
    
      An objection that the complaint fails to allege compliance with section 181 of the Tax Law refers solely to plaintiif’s capacity to sue and, if not taken by either demurrer or answer, it is deemed to be waived; and a motion for a nonsuit upon such ground is properly denied.
    ApTeab by the defendants from a judgment of the Municipal Court of the city of New York, eighth district, borough of Manhattan, rendered in favor of the plaintiff.
    J. W. Van Gordon, for appellants.
    Hastings & Gleason, for respondent.
   Davis, J.

This action was brought to recover for goods sold and delivered. It appears from the complaint that the plaintiff is a foreign corporation. There is no allegation that the plaintiff is a foreign stock corporation, nor does it appear from the complaint that it was doing business within the State of Hew York. The plaintiff obtained judgment for ninety-seven and eighteen one-hundredths dollars. At the close of plaintiff’s case the defendants moved for a nonsuit on three grounds, the last of which was that plaintiff being a foreign corporation had failed to show compliance with section 15 of the General Corporation Law (L. 1890, chap. 563) and section 181 of the Tax Law (L. 1896, chap. 908) and was therefore not entitled to bring this action. This motion was denied. At the time the motion was made it nowhere appeared in the evidence that the plaintiff was a stock corporation. The complaint, therefore, does not fail to set forth a good cause of action in favor of a foreign corporation because of its omission to allege compliance with section 15. Therefore it was not error to deny the motion for a nonsuit on this ground. Code Civil Pro., § 1779; South Bay Co. v. Howey, 113 App. Div. 382. Hor was it error to deny the motion because of a failure to show compliance with section 181 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap.- 558). It has been held that this objection does not go to the substance of plaintiff’s claim, but refers solely to the plaintiff’s capacity to sue. Therefore the objection must be raised by demurrer if the defect appears on the face of the complaint, or by answer if it does not so appear. If not so taken, it is deemed to be waived. It cannot be raised on a motion for a nonsuit. Parmele Co. v. Haas, 171 N. Y. 579, 583. The motion was renewed upon the same grounds at the end of the whole case and denied. The answer was a general denial and counterclaim. We think the motions were properly denied.

Gildeesleeve and Fitzgerald, JJ., concur.

Judgment affirmed, with costs.  