A.A. Sutain, Ltd. v. Montgomery Ward & Co.
| Decision Date | 28 April 1966 |
| Citation | 270 N.Y.S.2d 626,17 N.Y.2d 776,217 N.E.2d 674 |
| Parties | , 217 N.E.2d 674 A. A. SUTAIN, LTD., Respondent, v. MONTGOMERY WARD & COMPANY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 22 A.D.2d 607, 257 N.Y.S.2d 724. Adler & Adler, Joseph Goldberg, New York City (Alfred H. Adler and Joseph Goldberg, New York City, of counsel), for respondent.
Order affirmed, with costs.
All concur.
Action was brought to recover damages for alleged breach of contract by which defendant agreed to purchase certain articles from the plaintiff.
The Supreme Court, Special and Trial Term, New York County, Owen McGivern, J., entered a judgment dismissing the complaint, on ground that the corporate plaintiff had no capacity to enter into the contract and had no capacity to sue when the action was brought, because it had been dissolved by proclamation of the Secretary of State for nonpayment of taxes and was not revived and reinstated until after institution of the action. The plaintiff appealed.
The Appellate Division entered an order which reversed, on the law and the facts and in the exercise of discretion, the judgment of the Special and Trial Term, reinstated the verdict, and directed entry of judgment on the verdict, and held that defendant was estopped to question the existence and capacity of the corporate plaintiff to make the contract, where the defendant had proceeded to trial without questioning the validity of the contract until the close of the plaintiff's case.
The defendant appealed to the Court of Appeals.
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