The Herkimer County Bank vs. Furman, 17 Barb. 116

By the Court, Gridley, J. This cause comes before us on an appeal by the defendant from the decision of a single judge. If it had appeared in the complaint that the dissolution of the Astorogan Company took place under the act of 1852, that fact would have been fatal to the action, for the reasons stated in the opinion delivered this term in the case of Walker v. Crain, to which we refer for the grounds of the judgment. But there is nothing to indicate that the proceeding was under the act of 1852 to be found in the complaint, except what is purely conjectural, and we cannot assume .it.

If the proceeding was in reality under that act, that fact may be set up in the answer, and will form a defense to the action. On this complaint, however, we cannot say that it does’not contain facts enough to constitute a cause of action, and therefore affirm the decision of the court below. We perceive that a judgment was ordered in the suit, and whether the defendant had leave to answer given him on payment of costs, the papers do not show.

But we think the defendant ought to have such right if he should apply, and show that the dissolution was in fact under the act of 1852. [Onondaga General Term, October 3, 1853. Gridley, W. F. Allen, Hubbard and Pratt, Justices.] We therefore affirm the judgment, with a stay for 20 days, to enable the defendant to apply to the court for such an order. See next case.