I dissent. Section 19 of the Banking Law (Consol. Laws, chap.. 2 [Laws of 1909, chap. 10], as amd. by Laws of 1910, chap. 452) provides that “for the purpose of executing and performing any of the powers and duties hereby conferred upon him, the Superintendent may, in the name of the delinquent corporation or individual banker, prosecute and defend any and all suits and other legal proceedings,” and the appellant contends that this section limits plaintiff’s authority to the prosecution of this action in the name of the delinquent bank.
*413The action is upon a sealed instrument, to which the plaintiff was not a party, and in the absence of statutory authority, he could not maintain an action to enforce the covenants thereof.
No assignment is alleged, and no statutory authority is pleaded. (Henricus v. Englert, 137 N. Y. 488; Alexander v. Union Surety & Guar. Co., 89 App. Div. 3.) If the respondent, the Superintendent of Banks, stands in a similar position to a receiver of an insolvent corporation, as he contends, and in the absence of an express statute to the contrary, may maintain an action to foreclose a mortgage owned by a bank under his supervision in his own name, the position of the plaintiff is not benefited because the provision of the Banking Law referred to requires that such actions be brought in the name of the bank, and Emits the authority of the Superintendent accordingly.
It is claimed that the word “may ” in the section is permissive, not mandatory, and does not affect the plaintiff’s right to bring the action in his own name. In this, I think, he is in error. (Alexander v. Union Surety & Guar. Co., supra.) The defect appearing upon the face of the complaint, it cannot be said to state a cause of action. This court, in Prankard v. Cooley (147 App. Div. 145), affirmed the rule that “As the complaint shows that the plaintiff had not capacity to sue, it did not state facts sufficient to constitute a cause of action,” and held that the objection could not be waived, even if not presented by demurrer or answer.
It follows, I think, that the motion for judgment upon the pleadings should have been granted. The amendment was not authorized by law. (Pom. Code Rem. § 317; Doyle v. Carney, 190 N. Y. 386.)
I vote to reverse the order, with ten dollars costs and disbursements, and to grant defendant’s motion for judgment on the pleadings, with ten dollars costs.