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(No. 5.)

On a bank check drawn by firm, and endorsed to plaintiff.

SUPREME COURT-RENSSELAER COUNTY.

E L. M.

agt.
J. M. T., G. T., M. V. and C. F. M.

The plaintiff complains that the defendants, who are copartners in trade, J. M. T., G. T. and M. V., by their firm name of J. M. T. & Co., on the 12th day of November, 1857, at Troy, New-York, made a certain check or draft in writing, whereby they directed the Union Bank of Troy, thirty days after date, to pay to the defendant, C. F. M., the sum of $200, and the said payee thereof endorsed the said check for a valuable consideration to the plaintiff; that when the said check became due and payable, it was duly presented for payment to the said Union Bank of Troy, and payment thereof was duly demanded, but the drawers had not funds at said bank to meet said check, and the same was not paid, and that due notice thereof was given to the defendant C. F. M.

And the plaintiff further says, that he is now the lawful owner and holder of the said check, and that the defendants are, and each of them is, indebted to him thereupon in the sum of $200, principal, together with interest from 15th December, 1857.1

Wherefore the plaintiff demands judgment against the said makers and endorser of the said check, respectively, for the said principal sum and interest, and seventy-five cents fees for protest, besides costs.

JOHN L. FLAGG,

Plaintiff's Attorney. 1 These allegations are not necessary, and may be omitted.

(No. 6.)

By a copartnership firm against another firm on a draft

accepted and paid by plaintiffs.

SUPERIOR COURT

CITY AND COUNTY OF NEW-YORK.

Henry Suydam, Jr., almet Reed and Daniel

R. Saydam

agt. William B. Barber, George W. Girty and

James Doran.

The complaint of the plaintiffs shows, that heretofore, to wit, on the 25th day of November, 1845, the defendants, then composing the firm of Barber, Girty & Doran, drew their certain bill of exchange, in said copartnership name, at Cincinnati, in the State of Ohio, and dated on the day and year last aforesaid, and directed the same to the plaintiffs at the city of New York, who then were, and now are copartners, under the firm name of Suydam, Reed & Co., by which bill of exchange the said defendants requested the plaintiffs to pay to the order of said defendants, four months after date, the sum of $5,000, for value received, which bill of exchange the said plaintiffs afterwards accepted and paid in full; and that no funds were provided by said defendants, either before or after the same was drawn, as aforesaid, for the payment thereof, and the said plaintiffs have had no funds of said defendants at any time in their hands to pay the same.

Wherefore the plaintiffs demand judgment against the defendants for $5,000, and interest thereon from the 28th day of March, 1846, besides costs. MONELL, WILLARD & ANDERSON,

Plaintiffs' Attorneys.

(3.) COMPLAINTS, BY REAL PARTY IN INTEREST, UNDER SECTION

111 OF THE CODE.

(No. 7.)

By the assignee of a claim for the non-delivery of goods

sold.

SUPREME COURT - ALBANY COUNTY.

John S. Perry

agt. Ephraim B. Wheeler.

The plaintiff complains of the defendant, and, on information and belief, avers, that on the 25th day of August, 1854, at the city of Troy, Rensselaer county, one Lewis Elmore contracted with the defendant to purchase of said defendant the following amounts of lumber, at the following prices respectively, viz: 4,160 feet of clear pine, at $34 per 1,000 feet; 4,779 feet of fourths pine, at $24 per 1,000 feet; 7,319 feet of box pine, at $20 per 1,000 feet, and 600 pine boards, at 17 cents each, all to be delivered by said defendant, free of charge, at the cars in Troy aforesaid, that is to say, at the place for receiving freight on the Troy and Greenbush railroad; that, by the terms of said contract, said Elmore was to be charged with the sum of $2.03, being half the costs for inspection of some of said lumber, and he was to be allowed, as a deduction on the whole price of said lumber, the sum of $5, for cash which he was to pay, and that, by the said terms, the said Elmore was to pay the balance of said purchase price, viz., $501.54, by paying $250 in cash, and giving his note for $251.54, due November 28th, 1854; that upon the aforesaid terms the said defendant then and there agreed with said Elmore to sell to him, the said Elmore, the aforesaid lumber on the aforesaid terms, and to deliver the same as aforesaid ; that thereupon the said Elmore did then and there pay to the said defendant the said sum of $250 in cash, and did deliver to said defendant his, said Elmore's, note for $251.54, due November 28th, 1854, on the said contract, which note said Elmore has since paid at maturity thereof. Yet the said defendant, although often requested, has never delivered the said lumber, or any part thereof, according to the terms of said contract or otherwise, but to do so has wholly neglected and refused, and still does neglect and refuse. And the plaintiff further avers, that afterwards, and on the 1st day of March, 1855, the said Lewis Elmore assigned and transferred to the plaintiff his, the said Elmore's, claim and demand against the defendant for and on account of the matters aforesaid, and for such neglect and refusal, and that the plaintiff is now the holder and owner of such claim and demand.

Wherefore the plaintiff demands judgment against the defendant for the sum of $501.54 cents, with interest from August 25th, 1854. LEARNED, WILSON & BEARDSLEE,

Plaintiff's Attorneys. Dated March 30th, 1855.

1 An allegation that the plaintiff is the holder and owner of the demand, is insufficient, of itself, to show his title to sue. The facts must be stated (as above), showing how the plaintiff became the owner of the demand. (Thomas v. Desmond, 12 How.,

321.)

(No. 8.)

By assignee of claim against an innkeeper, for loss of money

contained in the baggage of his guest.'

SUPREME COURT- RENSSELAER COUNTY.

Thomas Fowler

agt.
Elias Dorlon and William Dorlon.

The complaint of the abovenamed plaintiff respectfully shows to this court, that the said defendants, Elias Dorlon and William Dorlon, before and at the time of the loss hereinafter mentioned were, and from thence hitherto have

As to the right of an assignee of a claim arising ex delicto, to maintain an action, and as to what olaims of this nature are assignable, see Pleadings, 110, 112.

In McKee v. Judd (2 Kernan, 622 ), it is held that a right of action for the wrongful taking and conversion of personal property is assignable, and under the provisions of the Code the assignee can recover thereon in his own name; and that an assignment by a person, of all his property and estate, transfers a right of action existing in his favor for the tortuous conversion of personal property. And in Butler v. The New-York and Erie Railroad Company ( 22 Barb., 110 ), it is held that not only claims for taking and converting personal property, or for injury to personal property, but generally all such rights of action for a tort as would survive to the personal representatives of a party, may be assigned so as to pass an interest to the assignee, which he can assert in his own name, in a civil action under the Code. A contrary doctrine is held by the Supreme Court, in the second district, in Thurman v Wells, (18 Barb., 500), holding that a claim against the defendants, as common carriers, could not be assigned so as to enable the assignee to sue. This doctrine seems to be overruled by the Court of Appeals, in McKee v. Judd, above referred to.

On the trial of the case in which the complaint inserted in the text was used, before Justice Harris, and subsequently, before Justice

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