Gillin Printing Co. v. Traphagen

McAdam, J.

In this action for work, labor and services, the defendant’s main defense was that the work was not performed for him, but for a corporation, of which he was president. We think the justice’s finding, that the work was done for the defendant, is correct. Requests for an estimate and that Mr. Gillin, plaintiff’s agent, should call in reference to same, although written upon the printed letter-head of the defendant’s corporation, are signed by the defendant personally, without any indication of corporate capacity, and contain language denoting individual, not corporate, action. “ Please quote me; ” “ Let me have this information; ” “ Call and see me ” — These are phrases in letters over the defendant’s signature.

Although defendant’s Exhibit 1 for identification, which is a bill made out for the work in question to the corporation, of which defendant is president, was, erroneously as we believe, not admitted in evidence, the error does not call for a reversal of the judgment. For Mr. Gillin, the plaintiff’s representative, swore that it was a clerical error to make the bill out against the corporation.

The defendant’s motion, made at the close of the plaintiff’s case, for a dismissal on the ground that there was no proof of incorporation, was properly denied. Conceding the correctness of the appellant’s contention that, in an action by a corporation in the Municipal Court, it is not necessary, in order to deny the existence of the corporation, to-set up by an affirmative allegation in a verified answer that the plaintiff is not a corporation, it would seem that, where the pleadings are oral, as in this case, and there is affirmative proof that plaintiff is a corporation, such proof is conclusive in the absence of evidence to the contrary. The plaintiff’s witness swore to the fact of corporate existence and the return contains no evidence to the contrary.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.