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.1 Wherefore the plaintiff demands judgment against the defendant for the sum of $501.54 cents, with interest from August 25th, 1854. LEARNED, WILSON & BEARDSLEE, 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 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 claims 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 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, Plaintiff's Attorneys. (No. 9.) 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. Abijah Briggs, John Howard and James C. Jones 1 John Donelly. The plaintiffs 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 " tees of an express trust," within the meaning of section 113. (Secor v. Keller, 4 Duer, 416.) trus 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. |