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,

Plaintiffs' Attorneys.

(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.

(No. 10.)

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

Troy,
agt.

A. B., C. D. and E. F.'

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, §31), 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 v. Kinney, 24 Wend., 345.)

1 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 v. Beltzer (13 How., 270), it is said by Justice EмOTT 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.

bearing date the 1st July, 1856, directing and requiring the defendant, C. D., to pay to the order of the defendant, E. F., the sum of $5,000, three months from the date thereof; that said C. D. accepted said bill, and the same was thereupon endorsed by the said E. F. to the said Union Bank of Troy, of which the said plaintiff is president, and said bank is the lawful holder and owner thereof; that when said bill became due and payable, payment thereof was demanded of the acceptor and refused, and the same was thereupon protested for nonpayment, and notice thereof duly given to the drawer and endorser, and said bill is yet unpaid in whole or in part.

Wherefore the plaintiff, president of the said Union Bank, as aforesaid, demands judgment against the defendants in the sum of, &c., [as in No. 4.]

(No. 11.)

By a bank in its corporate name, on a promissory note against joint endorsers.

SUPREME COURT- RENSSELAER COUNTY.

The Union Bank of Troy

agt.

A. B. and C. D.

The plaintiff, a corporation duly organized and incorporated under the laws of the State of New-York, complains of the defendants, that on the 5th day of November, 1856, one E. K., at the city of Troy, made his certain

1 1 This allegation is usually and properly inserted in such a complaint, although it seems not absolutely necessary. (Bank of Waterville and another v. Beltzer, 13 How., 270; see note, ante, p. 370.)

promissory note, whereby he promised to pay the defendants, who are partners in trade, doing business, under the name of A. B. & Co., by their said firm name, the sum of $1,000, for value received, sixty days from the date thereof, at the Farmers' Bank in the city of Troy. That said defendants, thereupon, by their said firm name of A. B. & Co., endorsed said note to the plaintiff. That when said note became due, &c., [as in No. 4.]

Verification by Officer of the Bank.

RENSSELAER COUNTY, ss: L. A. B., of the city of Troy, being duly sworn, says, that he is president of the Union Bank of Troy, [or P. C., cashier, or any other officer of the corporation. Code, § 157,] and that the foregoing complaint is true of his own knowledge, except the matters therein set forth on information and belief, and as to those matters he believes it to be true.

Subscribed and sworn before me,

L. A. B.

this 1st of February, 1856.

E. B.,

Commissioner of Deeds, Troy, N. Y.

(No. 12.)

Against a bank, by the name of its president, for refusal to pay the dividend on stock transferred.

SUPREME COURT-WESTCHESTER COUNTY.

A. B.
agt.

C. D., President of the Bank of Sing Sing.

The plaintiff complains against the defendant, who is the president of the Bank of Sing Sing, which the plaintiff alleges is a corporation duly organized and incorporated under an act of the Legislature of the State of New-York, passed the 18th day of April, 1838, entitled "An act to authorize the business of banking," and the acts additional to and amending the same;1 that on the 15th day of November, 1855, one S. H., for a valuable consideration, sold and assigned to the plaintiff, $10,000 of the capital stock of said Bank of Sing Sing, then owned by said S. H., with the dividend thereon, remaining unpaid, of three and a half per cent., which said bank had declared on its capital stock, payable on the 1st day of December then next ensuing; that at the time of said sale and assignment, the said stock was duly transferred

1 The complaint may be, and perhaps should properly be, against the bank by its corporate name, in which case it would be sufficient to say 66 the defendant, a bank duly incorporated under the laws of the State of New-York." But if the action should be brought against the president of the bank, the contract must be stated as having been made by or with the bank, using the corporate name by which it acquires rights of action and contracts liabilities. (Delafield v. Kinney, 24 Wend., 345.)