Rothschild v. Dithredge Flint Glass Company.

is made, the plaintiff asks the court to coerce the defendant into raising an issue of law when it is quite apparent he intended to plead to the merits by answer. I think the suggestion of a demurrer might be treated as surplusage, and, liberally construing the pleadings, consider that issues of fact are tendered by the answer. The ground of objection to the complaint is one that may be taken at the trial, without a demurrer, and in this case it may be that the defendant merely intended to give notice in his answer that that point would be taken at the trial. It is not artistic pleading, but that does not authorize the striking out of a defense on the merits clearly stated.

If the motion had been to compel the defendant to elect between the answer as raising an issue of fact, and a demurrer one of law, an order might be made, and that was held in Munn v. Barnum (12 Abb. Pr. 563).

Motion denied, without costs, and without prejudice to a motion to compel the defendant to make his election.

ROTHSCHILD v. DITHREDGE FLINT GLASS COMPANY.

CITY COURT OF NEW YORK, CHAMBERS; JANUARY, 1892.

§ 3169, subd. 1.

Attachment-principal office of corporation.

An attachment issued out of the city court of New York against a domestic corporation on the ground that its principal place of business is not within the city and county of New York, will not be vacated merely because its certificate of incorporation states

Rothschild v. Dithredge Flint Glass Company.

that its principal place of business is within that city and county, unless it is so in fact. The question whether a corporation has its principal place of business within the city of New York becomes when disputed a question of fact to be determined on the proofs submitted, and the naming by the corporation in its certificate of incorporation of a particular county as that within which its principal office is located, merely estops it from claiming a principal place of business elsewhere until it has changed its place of business in the manner provided by statute. Blumenthal v. Hudson Boot and Shoe Mfg. Co. (21 N. Y. Civ. Pro. 217) distinguished.

(Decided January 6, 1892.)

Motion by defendant to vacate an attachment issued against its property.

An attachment was granted in this action on the ground that the defendant, a domestic corporation, did not have its principal office in the city of New York. The defendant moved to vacate it on the ground that by its certificate of incorporation its principal place of business was located in said city and county. It appeared, however, that its business was located at New Brighton, Pa., and that it only nominally had an office here.

Seward, Guthrie & Morawetz, for defendant and motion.

Nathan, Sondheim & Rothschild, for plaintiff, opposed.

MCCARTHY, J.-This is a motion to vacate an attachment granted against the defendant, a domestic corpora*ion, on the ground that its principal place of business was not in the city of New York (Code of Civil Procedure, § 3169). Affidavits have been submitted on both sides, and the matter is before me on the merits.

The defendant contends that having filed its certifi cate as required by statute, in which it designates as follows: "The said company is to be formed for the purpose of carrying on a part of its business in the town of

Rothschild v. Dithridge Flint Glass Co.

New Brighton and county of Beaver and state of Pennsylvania, and that the names of the town and county within this state in which the principal part of the business of said company is to be transacted is the city and county of New York," this is all that is necessary, and cites Blumenthal v. Hudson B. & S. M. Co. (21 N. Y. Civ. Pro., pp. 217, 220, 221). That case does not support the contention claimed for by the defendant. It determines, however, that a domestic corporation, having once declared by its certificate of incorporation as to the principal place of business, it cannot claim another place as its principal place unless by filing an amended certificate giving notice of such a change in conformity with the

statute.

It is not enough to declare in the certificate that a particular place is or will be its principal place of business, but such must be so in fact. It then becomes, when disputed, a question of fact to be determined whether the defendant, a domestic corporation, has its principal place of business within the city of New York.

I have examined the affidavits presented by both sides, and am of the opinion that the defendant's principal place of business is not within the city of New York, and therefore the motion to vacate the attachment should be denied, with $10 costs.

Bell v. Good.

BELL v. GOOD.

CITY COURT OF NEW YORK, CHAMBERS; JANUARY, 1892.

§§ 422, 424.

Appearance obtaining extension of time to plead is waiver.

The securing by a defendant of an extension of time to answer is a general appearance by him in the action, and waives a defect in the service of the summons.

(Decided January 15, 1892).

Motion to set aside judgment taken by default for irregularities in the form and service of the summons.

The summons was served by publication, but it is asserted by the defendant that a copy of the summons and order for service by publication were not mailed to him as required by said order. The defendant through his attorneys applied for and obtained a stipulation from the plaintiff's attorney extending the time to answer, and this is asserted by them to be a waiver of the defect in service.

Carpenter & Hassett, for defendant and motion.

Jeroloman & Arrowsmith, for plaintiff, opposed.

MCCARTHY, J.-The authorities are conflicting on the question as to what constitutes general appearance of an attorney; while the facts here present a very close case, I think the securing of the extension of time to answer by the defendant's attorney was sufficient (see

Riley v. Riley.

Krouse v. Averill, 4 Browne's Civ. Pro. 410; Ratel v. Ratel, 17 Weekly Dig. 137; Phelps v. Phelps, 6 Browne's Civ. Pro. 120, affirmed 32 Hun, 642). This, then, waived the irregularities complained of.

The motion to vacate is therefore denied; no costs. The defendant may, however, move to open default on the merits in another motion.

RILEY, APPELLANT, v. RILEY AND ANOTHER, AS EXECUTORS, ETC., OF ASHBEL W. RILEY, DECEASED, RESPONDENTS.

SUPREME COURT, FIFTH DEPARTMENT, GENERAL TERM;

JUNE, 1892.

$399.

Limitation to action-delivery of process to sheriff for service.

Where the summons in an action was delivered to the sheriff for serIvice before the statute of limitations had barred an action on the claim, and thereafter, within sixty days after the statute would have barred the claim but for such issuance of the summons, and after the delivery of the summons to the sheriff, but before it was served, or its service by publication commenced, the defendant died,-Held, that the action should have been revived and continued against such defendant's executors, and that where that was not done, but instead a new action brought against the executors on the claim, the attempted commencement of the action against their decedent, and the delivery of the summons to the sheriff, did not save the cause of action from the bar of the statute.