The action is on a promissory note. The
complaint alleges, “first, that at the times hereinafter mentioned, the plaintiff was, and now is, a national banking association incorporated and doing business under and by virtue of an act of congress, entitled, ‘An act to provide a national currency, ” etc., but contains no allegation as to whether it is a foreign or domestic corporation. For some inscrutable reason, section 1775 of the Code requires this allegation in every complaint, by or against a corporation.
The court below held that, inasmuch as it was alleged in the complaint that the plaintiff was incorporated under the act of congress, it was, from the very nature of its incor*618poration, a foreign corporation, and that where this was a self-evident fact, it added no force to the pleading to allege it was a foreign corporation.
The difficulty with this position is, that section 3343, sub-' division 18 of the Code, says: A “domestic corporation” is a “corporation created by or under the laws of the state, or located in the state i nd created by or under the laws of the United States. * * Every other corporation is a foreign corporation.” Therefore a national bank is either a foreign or domestic corporation, according to its location, within or without this state, and, as this is not specifically stated, the complaint is defective in that particular, and this defect can be taken advantage of by demurrer. Baker v. Star Printing and Publishing Co., 3 L. Bull., 29; Clegg v. Cramer, 3 How. [N. S.], 130; First Nat. Bank of Northampton v. Doping, decided at the March general term of this court, 1886.
The judgment must, therefore, be reversed, but as the defect complained of could mislead no one, and the demurrer is highly technical, the plaintiff is given leave to amend its complaint in any way it may be advised, within, six days after the service of an order reversing the judg-; ment on its attorneys; the costs of this appeal to abide the' event of the action, and with costs of prior proceedings in' the court below, at the discretion of that court.