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been and still are, inn or hotel keepers, and as such inn or hotel keepers they the said defendants have for and during all that time kept, and still do keep, under the firm name of E. & W. Dorlon, for the reception, lodging and entertainment of travelers, a certain inn or hotel, commonly called or known by the name of the “Mansion House," in the city of Troy in said county.
And the said plaintiff further states, that the said defendants being such inn or hotel keepers, and so keeping the said inn or hotel as aforesaid, one Stephen Barker heretofore, to wit, on or about the 26th day of June, 1852, at the said city of Troy, put up and was received then and there into the said inn or hotel as a traveler by the said defendants, and then and there brought into the said inn or hotel, and delivered to the said defendants as such inn or hotel keepers, a certain valise containing $2,000 in money, and also certain wearing apparel, goods and chattels, to wit, one dress coat, one silk vest and one half dozen of shirts, of the value of $50, and which said valise and its contents aforesaid were then, and from thence until and at the time of the loss hereinafter mentioned, within the said inn or hotel, and in the custody and keeping of the said defendants, and that the said Stephen Barker during all that time abided as a traveler therein, yet the said defendants, so being such inn or hotel keepers as aforesaid, not regarding their duty as such inn or hotel keepers, did not keep the said valise and its contents aforesaid, so brought into and being in the said inn or hotel, and in the custody and keeping of the said defendants as aforesaid,
WM. B. Wright, the point was raised that the claim could not be assigned so as to enable the assignee to sue, and overruled; and though the Supreme Court, at General Term, subsequently granted the defendants a new trial, it was upon other grounds, and not for any erroneous ruling in this respect.
safely, but on the contrary the said defendants and their servants so negligently and carelessly behaved and conducted themselves in that behalf, that afterwards, and whilst the said Stephen Barker so abided in said inn or hotel, as aforesaid, to wit, on the same day and year aforesaid, the said valise and its contents aforesaid were, by and through the mere carelessness, negligence and default of the said defendants and their servants in that behalf, wrongfully and unjustly taken and carried away by some person or persons as yet unknown to the said Barker or to this plaintiff, and were and still are thereby wholly lost to the said Barker and to this plaintiff, and the said defendants, although often requested so to do, have hitherto neglected and refused to deliver the same or any part thereof to the said Barker or to this plaintiff, whereby the said plaintiff has sustained great damage, to wit, in the sum of $2,050.
And the plaintiff further states, that the said Stephen Barker did, on or about the 3d day of November, 1852, for a good and valuable consideration, transfer, assign and set over the above property, claim or demand against the said defendants, for the recovery of which this action is brought, and all his right, title and interest therein, to this plaintiff for his sole use and benefit.
Wherefore this plaintiff demands judgment against the said defendants, in the sum of $2,050, together with inte rest on that sum from the 26th day of June, 1852, besides his costs and disbursements.
OLIN & GEER,
By a firm in which there is a dormant partner, for goods
sold, the price being agreed upon.
SUPREME COURT-CITY AND COUNTY OF NEW-YORK. .
Abijab Briggs, John Howard and James C.
The plaintiff's complain of the defendant, and allege, that the plaintiffs are copartners in business in the city of New-York, under the firm name of Briggs & Howard, and that said plaintiff, Jones, is a dormant partner in said firm.
That on or about the 1st of January, 1857, the said plaintiffs, in their firm name, contracted with defendant to sell, and did sell and deliver, to him a certain quantity of merchandise, to wit, dry goods, in the quantities and at and for the prices specified in the bill thereof, hereto annexed, amounting to the sum of $480.50, and on a credit of four months, and defendant promised at such time to pay for the same.
| As the law stood before the Code, a dormant partner was not a necessary party in an action at law for the recovery of a partnership debt, except in those cases in which he was known as a party to the contract from which the debt arose. But the terms of section 111 are imperative, and a dormant partner is now a necessary party. Nor can the active partners maintain the action alone, as being the “trustees of an express trust,” within the meaning of section 113. (Secor v. Keller, 4 Duer, 416.)
In such a case, if the dormant partner be not joined, the defendant must raise the objection by answer, otherwise, of course, it is waived.
Yet though said time has elapsed, the said defendant has not paid the said sum, or any part thereof.
Wherefore the plaintiffs demand judgment against the defendant, for the sum of $480.50, with interest thereon from the 4th day of May, 1857, besides costs.
G. R. & T. D. PELTON,
(4.) COMPLAINTS BY PERSONS EXPRESSLY AUTHORIZED BY STATUTE,
AND TRUSTEES OF EXPRESS TRUSTS UNDER SECTION 113 OF CODE, AND BY AND AGAINST EXECUTORS AND ADMINISTRATORS AND Banks, BY THE NAME OF THEIR PRESIDENT OR THEIR CORPORATE NAMES.
By bank, in the name of its president, on bill of exchange,
against drawer, acceptor and endorser.
SUPREME COURT-RENSSELAER COUNTY.
L. A. B., President of the Union Bank of
The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action :
1 Actions by banks incorporated under the general banking law are usually brought in this form, the statute authorizing the suit to be in the name of the president (Session Laws, 1838, chap. 260, 831 ), and the Code ( § 113) allowing persons "expressly authorized by statute," though not the real party in interest, to sue.
The complaint, however, as in this precedent, should contain an averment that
That he is president of the Union Bank of Troy, a bank duly incorporated under an act of the Legislature of the State of New York, entitled “An act to authorize the business of banking,” passed the 18th day of April, 1838, and the acts additional to and amending the same; that the defendant, A. B., at Troy, made his draft or bill of exchange,
the bank is incorporated under the general banking law, and that the plaintiff is president thereof. (Pleadings, 144, 632, 633.) The plaintiff may then properly allege that the bill or note was endorsed to and is the property of the bank. A complaint, however, on a bill or promissory note, may be properly framed in the corporate name of the bank as plaintiff, as in the next following precedent. (Delafield o. Kinney, 24 Wend., 345.)
In a suit of this character, the complaint should state ( as above ) the title of the act, and the date of its passage, under which proceedings were had for the incorporation of the bank. This is required by the 13th section of the 4th title of chapter 8 of the 3d part of the Revised Statutes, which is retained by section 471 of the Code. ( Johnson, President of Hanover Bank, v. Kemp, 11 How., 186.)
But in the subsequent case of The Bank of Waterville and another 0. Beltzer (13 How., 270), it is said by Justice Emott that it is a well established rule that a corporation, when suing, need not aver its corporate existence, and need not prove it unless it be expressly pleaded (in defence ) that it is not a corporation; and that the rule applies to banks incorporated under the special provisions of the general banking law, whether suing in the name of the bank or in the name of its president alone.
It will be seen, by reference to the case last cited, that so much of the opinion as applies to a suit by a bank, in the name of its president, was not necessary to the decision of the case before the court. The rule that a bank, when suing in its corporate capacity, need not allege its corporate existence, is, no doubt, well established, and is clearly shown by the authorities cited in the opinion referred to. But the president of such a bank, not being really the owner of the demand, can maintain a suit at all only under section 113 of the Code, by virtue of his being a person “expressly authorized by statute" to sue; and to give him this right, it seems necessary that he should aver that he is president of such a bank, that is, a bank incorporated under the general banking law.