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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

* 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.

L. A. B. Subscribed and sworn before me, 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;' 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 " 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 0. Kinney, 24 Wend., 345.)

on the books of said bank, with its assent, to the said plaintiff, pursuant to the articles of association and rules and regulations of said bank. And the said plaintiff thereupon became and is the owner of the said stock, and the said dividend so declared thereon, of which said bank had due notice.

And the plaintiff alleges and states, that on the 1st of December, 1856, when said dividend became due and payable, payment thereof was duly demanded, by the plaintiff, of said bank, at its banking-house in the village of Sing Sing, and refused, and that said dividend is still due and unpaid.

Wherefore the plaintiff demands judgment against the defendant, president of the said Bank of Sing Sing, for the sum of, &c., [as in No. 4.]

(No. 13.)

By administrators on promissory notes endorsed to plaintiffs

intestate.

SUPREME COURT - RENSSELAER COUNTY.

Laura Marsh and Peletiah J. Marsh, Ad.

ministratrix and Administrator of Prentis W. Marsh, deceased,

agt. Henry Barnbart.

The abovenamed plaintiffs complain that the abovenamed defendant, on the 23d day of January, 1851, at Troy, by his promissory note in writing, for value received, promised to pay to the order of Wilder & Snow, one day from the date thereof, the sum of $1,248.28, with interest; day of

that said promissory note was duly endorsed by the payees thereof, for a valuable consideration, to one Prentis W. Marsh, in his lifetime; that the said Prentis W. Marsh died, possessed of the said promissory note, on the day of

The plaintiffs further say, that on the — they were duly appointed administratrix and administrator of the goods, chattels and credits of the beforementioned Prentis W. Marsh, deceased, by the surrogate of Rensselaer county;' that the defendant has not paid the said note, but is justly indebted to the plaintiffs, as administratrix and administrator of Prentis W. Marsh, deceased, therefor.

Wherefore the plaintiffs demand judgment, as such administratrix and administrator, against the defendant, for the sum of $1,248.28, with interest thereon from the 23d day of January, A. D. 1851, besides costs.

S. & V. S.,

Plaintiffs' Attorneys.

By the old forms of pleading, profert of the letters of administration or letters testamentary was required to be made in suits by executors or administrators. This is no longer necessary.

But in a complaint by an administrator or executor, it is necessary to allege that the plaintiff is administrator or executor, and has been regularly appointed by the surrogate of some county in this state, naming it; because it is a material and traversable fact, and must be stated in such form as to tender an issue to the other party. A complaint commencing “A. B., administrator, &c., of the goods, chattels and credits of O. D., late of —, deceased, plaintiff in this action, complains," &c., without any further allegation of his appointment as administrator, is insufficient to show that the plaintiff prosecutes in a representative capacity. It is a descriptio persone merely, and must be regarded as a complaint by the plaintiff in his own right. (Sheldon, administrator, &c., o. Hoy, 11 How., 11.) So also in regard to a complaint by an executor. (Merritt v. Seaman, 2 Selden, 168.)

See, as to form of allegation of appointment of administrator de bonis non, ante, No. 80, part II.

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