Although there is no allegation in the complaint that the plaintiff has legal capacity to bring an action, nor that the plaintiff is a corporation, it is difficult to assume that such capacity does not exist. A demurrer can be taken only when the grounds to support it appear from the pleadings. Otherwise the objection must he taken by plea or answer, stating the particular facts which constitute the defense or objection.
Can it he said that the plaintiff is not a corporation ? The negative is not apparent from the complaint.
The revised statutes provide (2 R. S., 458, § 3,) that “in suits brought by corporations created by or under any statute of this state, it shall not he necessary to prove on the trial of the cause the existence of such corporation, unless the defend*573ant shall have pleaded, in abatement or in bar, that the plaintiffs are not a corporation.” This statute provides, by implication, that the defendant shall aver the fact in question, if he wishes to raise such an issue. The complaint need not aver any fact which it is unnecessary for the plaintiff to prove iú order to maintain his action.
It need not be stated in a complaint that the plaintiff has a legal capacity to sue. The want of such an allegation affords no ground of demurrer. The want of capacity must appear before it can become a ground of demurrer from the facts that are stated, not from the omission of facts that would expose such want. (The Union Mutual Ins. Co., v. Osgood, 1 Duer 707, and authorities cited.)
In the case of the Bank of Genesee v. The Patchin Bank, (3 Kern, 313,) the complaint expressly alleged the corporate existence of the plaintiff, and the defendants denied, by their answer, every allegation of the complaint. Judge Denio held that this pleading did not require the plaintiffs to prove their corporate character; and this was the opinion of the court in that case. It was further held that the provision of the revised statutes, above referred to, is not abolished by the provisions of the code. Judge Denio also says, page 314, “If the defendant really desired to litigate that question, he was required to plead the fact expressly.” This appears to be conclusive authority that the allegation that the plaintiffs are not a corporation must be expressly averred by the answer in order to raise the question, and that the issue cannot be raised by a negation of the allegation in the complaint. Of course, then, if the allegation of the fact in the complaint, denied by the answer, imposes no necessity for the plaintiffs to prove their corporate character, there can be no rule of pleading requiring such an allegation in the complaint.
It is unnecessary to consider the question separately under the sixth subdivision of section 144 of the code. That subdivision is not applicable to the ground of demurrer here *574insisted on. (Conn. Bank v. Smith, 9 Abb. P. R. 173, opinion by Clerke, J.)
The judgment should he affirmed, with costs.
Clerke, J. concurred.