Second National Bank v. Wells

The complaint does not allege that the plaintiff is a corporation having legal capacity to sue. It does not allege that it is incorporated under the laws of this state. Therefore, section 3 (2 R. S. [Edm. ed.], 477) does not apply. The objection can not be taken by demurrer, because the court of appeals have so held in The Phoenix Bank agt. Donnell (40 N. Y., 410). The complaint can only prove what it alleges, no allegations being inserted that it has legal capacity to sue. Therefore, no proof of that fact could be given. The objection by answer is proper, and therefore the answer cannot be held to be frivolous. The motion must be denied, with ten dollars costs to defendant.