#### HARMON v. VANDERBILT HOTEL CO.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Corporations—Actions—Alleging Incorporation.

A complaint in an action against a corporation which fails to state, as required by Code Civ. Proc. § 1775, whether defendant is a domestic or a foreign corporation, is not demurrable, but the objection can be raised only by motion; such allegation not being a part of the cause of action.

Appeal from special term, Kings county.

Action by Clara Harmon against the Vanderbilt Hotel Company. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.

Reversed.

Argued before BROWN, P., and DYKMAN and CULLEN, JJ.

H. D. Birdsall, for appellant.

William Sulzer, for respondent.

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 *784it 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 section 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 section 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. 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 section 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 section 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 Ibe reversed, with costs, and judgment given for plaintiff on demurrer with costs, with leave to defendant to answer within 20 days, on the payment of such costs. All concur.