Howe Machine Co. v. Robinson. were to be paid at stated periods less than a year he could recover. But this is not the allegation of the complaint, which in no wise brings plaintiff's contract with the company within the terms of such contracts as are enforceable against a stockholder. (Hovey v. Ten Broeck, 3 Robt. 316.) The act of 1875, sec. 25, cited by plaintiff on his points, is not the statute under which the corporation of which defendant is a stockholder was formed. The provisions of the act of 1875 apply only to suits against stockholders of corporations organized under that act. (Laws of 1875, chap. 611, sec. 25.) The judgment should be reversed with costs, and defendant should have judgment on his demurrer with costs, with leave to plaintiff to serve an amended complaint within twenty days after service of order. CHARLES P. DALY, Ch. J., concurred. Ordered accordingly. THE HOWE MACHINE COMPANY, Appellant, against (Decided January 7th, 1878.) Where a corporation organized by or under any statute of this State, in a suit by it desires to take advantage of the statutory provisions (2 R. S. 458, § 3, as amended by L. 1864, c. 422, and L. 1875, c. 508) relieving such corporations under certain circumstances from proving on the trial of suits by or against them, the existence of such corporation, it must allege in its complaint its incorporation by or under a statute of this State, and if it does not do so it must, on a general denial being interposed, prove its incorporation on the trial. Even in a case where the defendant, by having contracted with the plaintiff in its corporate name, is estopped from denying its incorporation, this only extends to estop him from denying the incorporation where properly pleaded, and the plaintiff must still either properly allege the incorporation in its complaint or prove it on the trial, if a general denial be interposed. A complaint in the name of a corporation as plaintiff is a sufficient allegation of incorporation to sustain the action, provided due proof of such incorporation is made when required. Howe Machine Co. v. Robinson. APPEAL from a judgment of the justice of the District Court of the city of New York, for the Sixth Judicial District, dismissing the complaint. The facts are fully stated in the opinion. Stephen A. Walker, for appellant. S. Albert Mincho, for respondent. JOSEPH F. DALY, J.-This was an action to recover personal property, one sewing machine. The complaint was oral and did not aver that the plaintiff was a corporation. The answer contained a general denial with other defenses. The affidavit and undertaking of plaintiff on the claim of the property with the requisition to the marshal were before the justice on the trial, and are made part of his return. The affidavit is made by "Levi S. Stockwell, president of the Howe Machine Company." The undertaking recites the affidavit so made. Plaintiff did not prove its. incorporation on the trial, and the justice granted defendant's motion to dismiss the complaint, which motion was made "on the ground that no incorporation has been proved; also on the ground that no sufficient demand is shown, the plaintiff not having shown any demand since the machine had been sent up to defendant's place." It was not necessary to aver particularly in the complaint the incorporation of the plaintiff. The complaint by the Howe Machine Company is itself an allegation of incorporation, and is sufficient as a pleading. (The Phenix Bank v. Donnell, 40 N. Y. 410; The Bank of Havana v. Magee, 20 N. Y. 358, per Denio, J.) If there were no special averment of incorporation, did the general denial in defendant's answer require proof of incorporation on the trial? Such a denial would not put in issue the incorporation of a company averred in the complaint to be a domestic corporation. (2 R. S. 458, § 3, L. 1864, chap. 422; L. 1875, c. 508, p. 588.) But it would put in issue an averment of incorporation under a foreign law. Howe Machine Co. v. Robinson. Even if the contract on which the action is brought were made by defendant with the corporation in its corporate name, he is estopped no further than his right to object to the want of averments of incorporation in the complaint, for, under the general issue, the court would require proof of plaintiff's capacity to sue if it were a foreign corporation. (Henriques v. Dutch West India Co., 2 Raymond, 1535; The Dutchess Cotton Manufactory v. Davis, 14 Johns. 238; Connecticut Bank v. Smith, 9 Abb. 168.) This was the rule before the statute above cited as to corporations generally, but by the statute proof of incorporation by domestic corporations is not required under the general denial. The rule as to foreign corporations has not been altered. When the parties went to trial in the court below the plaintiff was not in a condition to avail itself of the benefit of the statutes dispensing with proof of its incorporation, because it had not, in any form, claimed to be a domestic corporation, and there could be no presumption that it was such. Even the incorporation of plaintiff was denied; and if the defendant was estopped from denying that, because he had contracted with plaintiff, he was estopped no further than as regards the pleading. We have seen that plaintiff would have to prove incorporation on the trial. (Dutchess Cotton Mfg. Co. v. Davis; Henriques v. Dutch West India Co., supra.) If plaintiff were a domestic corporation it was only necessary to so allege, and unless that fact were specially controverted no further proof would be required. Not having chosen to aver incorporation it was necessary to prove it. If we held otherwise it would be in effect permitting a foreign corporation, by omitting all averments of these matters in its complaint, to recover without any proof of corporate existence, notwithstanding a general denial in the answer. This would be a clear infraction of the rule as to proof under such an issue by such corporate bodies. That we hold a domestic corporation, on the other hand, bound to prove its corporate existence, without any special denial required by the statutes, is no violation of those statutes, Vol. VII.-26 Meacham v. Collignon. because, without an averment in the complaint the court cannot know that it is a domestic corporation and entitled to its privilege under the acts. Nothing in the pleadings or proofs in this case showed plaintiff to be a domestic corporation. Defendant was not bound to set up expressly in his answer that plaintiff was not a domestic corporation, for such special denial is only required where the action is brought by a domestic corporation, and that fact nowhere appears. The judgment dismissing the complaint for the want of proof of incorporation should be affirmed. VAN HOESEN, J., concurred. Judgment affirmed. GEORGE L. MEACHAM et al. Appellants, against AUGUST M. COLLIGNON (Impleaded), Respondent. (Decided January 7th, 1878.) Where the defendant was a creditor to a large amount of his nephew, who was engaged in buying goods on credit and shipping them to Europe for resale, and the nephew had no funds of his own but relied for funds to pay for the goods he purchased, on money advanced to him by the defendant, in whose name the bills of lading were taken, and after a number of such purchases, shipments and advances by the defendant had been made and there had been a loss on the shipments so that the defendant had not received back his advances in full, a large quantity of goods were purchased on credit and shipped and the bills of lading made out to the defendant, who made no advances thereon but collected the proceeds of sale and applied them to the balance due for former advances and on account of an old debt due to him from his nephew,-Held, that these facts were sufficient to show that the defendant's nephew bought the goods with the fraudulent design of never paying for them, and that the defendant had knowledge thereof. Where the third party receiving goods has guilty knowledge of the frand by which they were obtained, no notice of rescission of the sale need be given him by the person defrauded before action brought; a simple demand for the goods is sufficient. An action for the wrongful detention of the goods, or for their value, will lie Meacham v. Collignon. against the person receiving them from the fraudulent vendee with knowledge of the fraud, although such person may have parted with the goods before action brought. Roberts v. Randel, 3 Sand. 707, distinguished. APPEAL by plaintiffs from an order of the court made at special term by Judge LARREMORE, granting the defendant, Collignon, a new trial. The action was brought to recover from defendants possession of 200 barrels of apples, or if possession could not be had, for $800, the value thereof, and damages. Plaintiffs claimed that the apples had been procured from them by Campbell by fraud, and delivered by Campbell to Collignon without consideration and with notice on the latter's part of the said fraud. The jury found against both defendants; but a motion for a new trial upon the minutes of the judge was made by Collignon, and subsequently granted on the ground that the verdict as to him was against the evidence. Cheevey & Clark, for appellants. Robert W. Todd, for respondent. JOSEPH F. DALY, J.-I have seldom known the verdict of a jury upon a question of fraud in a mercantile transaction to be without good legal evidence as well as sound legal inferences to sustain it. The shrewd common sense of the men in the jury box can hardly lead to wrong conclusions in a matter so wisely left by law to their determination. The present case is no exception to the rule that jurors are the best judges of the facts-especially where, as in nearly every case of fraud, these facts are to be gathered from a variety of circumstances and are seldom susceptible of direct proof. Campbell was a dealer in apples and produce in the basement of No. 298 Washington street, where he had been in business some three years. In November, 1875, he was indebted to his uncle, Collignon, to the amount of about $2,000. Along about the latter part of November or first of December, 1875, he went to his uncle and said he would like to |