I concur in the conclusion. I am willing, out of respect for the decisions in the Union Mutual Ins. Co. v. Osgood, (1 Duer, 707,) Kennedy v. Cotton, (28 Barb. 63,) and Shoe and Leather Bank v. Brown, (18 How. Pr. Rep. 308,) to hold that where, as in this case, the plaintiff sues hy an appropriate corporate name, it is not necessary to expressly aver in the complaint that the plaintiff is a corporation, on the ground that in such a case there is in the complaint an implied averment that the plaintiff is a corporation; though it appears to me that the English cases and the cases in this state, cited in the two first mentioned cases, decide merely on this point, that the complaint need not aver how the plaintiff was incorporated; that is, need not set out or refer to its act of incorjDoration, or its right or title to be a corporation.
Before the revised statutes, the plea of the general issue put in issue the fact of the plaintiff being a corporation, (Bank of Utica v. Smalley, 2 Cowen, 778, and cases cited;) and how could that be, unless the complaint contained an averment, express or implied, that the plaintiff was a corporation ?
So the provisions of the revised statutes, that in suits brought by corporations, it shall not be necessary to prove on the trial the existence of such corporation, unless the defendant has pleaded in abatement or in bar that the plaintiffs are not a corporation, rather implies that it should appear from the complaint that the plaintiffs sue as a corporation, for otherwise there would be nothing to put the defendant upon inquiry, whether in fact the plaintiffs were a corporation. In other words, the right of the defendant, *575recognized by the statute, to expressly plead, in abatement or in bar, that the plaintiffs were not a corporation, would seem to imply that it should appear from the complaint that the plaintiffs sue as a corporation.
[New York General Term, May 2, 1864.I have no doubt that in a suit by a corporation incorporated by the name of John Smith, or of John Smith and Robert Smith, the complaint should contain an express averment that the plaintiff is a corporation.
Judgment affirmed.
Sutherland, Leonard and Gierke, Justices.]