Oesterreicher v. Sporting Times Pub. Co.

McAdaii, C. J.

The Code requires that, in an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation, and whether it is a domestic or foreign corporation, etc., (Code, § 1775;) and the omission of these allegations is ground ■of demurrer, (Baker v. Printing Co., 3 Month. Law Bul. 29; Clegg v. Newspaper Union, 8 Civil Proc. R. 401 ; Bank v. Doying, 11 Civil Proc. R. 61 .) The cases relied on by the plaintiff (Fox v. Preserving Co., 93 N. Y. 54 ; Bank v. Corbett, 10 Abb. N. C. 86 ) are inapplicable. The first has no reference to the question involved. The second must be considered modified by the later cases. The defendant is either a corporation or nothing. It cannot be a natural person, for it has no family or given name. Frank v. Levie, 5 Rob. (N. Y.) 599. It is not a joint-stock company, or the action ought to have been brought against its president or treasurer. Code, § 1919. It is not a copartnership, or the action should have been commenced against the individuals composing the firm. It is not a trade name, or the action ought to have been brought against the person using it. It is therefore a corporation, if it is to be regarded as a legal entity for any purpose. For these reasons it follows that the defendant is entitled to interlocutory judgment sustaining ■the demurrer, with liberty to the plaintiff to withdraw the demurrer and amend his complaint, on payment, within six days, of the costs of the argument of the demurrer.