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 Barnhart.

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;

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

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;1 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.,

1

Plaintiffs' Attorneys.

1 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 C. 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 persona merely, and must be regarded as a complaint by the plaintiff in his own right. (Sheldon, administrator, &c., v. 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.

(No. 14.)

Against executors, for labor and services performed for testator in his lifetime.

SUPREME COURT-RENSSELAER COUNTY.

Justus H. Aikin, 2d,
agt.

Elihu G. Aikin, James Aikin, Jr., and Nathaniel Aikin, executors of James Aikin, deceased.

The complaint of the abovenamed plaintiff shows to this court, that James Aikin, in his lifetime, to wit, on or about the 1st day of January, 1849, at Pittstown, in said county, became and was indebted to the said plaintiff in the sum of $1,665, for the work, labor and services of the said plaintiff, by the said plaintiff, before that time, done, performed and bestowed in and about the business of the said James Aikin, and for the said James Aikin, in his lifetime, and at his special instance and request, during a period of about nine years and three months, to wit, from the year A. D. 1838, to January, A. D. 1849, at and for the price of $15 per month. That said James Aikin died on or about the, &c., leaving a last will and testament, wherein the defendants are named as executors, and that said will has been duly admitted to probate by the surrogate of Rensselaer county, where said Aikin resided before the time of his death, and letters testamentary have issued thereon to said defendants, who have duly qualified to act as such executors. That the said James Aikin did not, in his lifetime, pay the said sum of money abovementioned, or any part thereof, to the said plaintiff, nor have the said defendants' executors, as aforesaid, since the death of the

said James Aikin, nor hath either of them, as yet paid the said sum of money abovementioned, or any part thereof, to this plaintiff, although often requested so to do; but the said defendants, as such executors as aforesaid, are still justly indebted to the said plaintiff in the said sum of money abovementioned, together with the interest thereon. Therefore the said plaintiff demands judgment against the said defendants, as such executors, as aforesaid, for the said sum of money abovementioned, together with interest thereon, besides costs.

OLIN & GEER,
Plaintiff's Attorneys.

(No. 15.)

By administratrix of person negligently killed, against executors of the person by whose negligence or wrongful act the death of the plaintiff's intestate was caused.1

SUPREME COURT-COUNTY OF RENSSELAER.

Sophia Yerton, administratrix of George

Yerton, deceased,

agt.

John P. Wiswall and Ebenezer Wiswall, executors of Ebenezer Wiswall, deceased.

Sophia Yerton, administratrix of George Yerton, deceased, plaintiff, for complaint in this action, says, upon her

The action is brought under the act of 1847 (chap. 449), as amended by act of 1849 (chap. 256), by which acts the personal representative of the deceased may maintain the action under section 113 of the Code. Several similar cases (for the same accident) were brought against the defendant's testator in his lifetime. Before a

information and belief, that on or about the 8th day of May, 1852, Ebenezer Wiswall, then residing in the village of West Troy, but now deceased, did, upon his application, procure from the County Court of the county of Albany, having jurisdiction over the subject matter thereof, a ferry license, under which he became bound1 to maintain, and run for three years thereafter, a skiff ferry across the Hudson river from the city of Troy to the village of West Troy, for the purpose of conveying passen

trial was had, the defendant in the actions died, and a motion to continue them against his personal representatives was denied at Special Term, on the ground that the cause of action did not survive, (Norton, administrator, v. Wiswall, 14 How., 42), and the decision affirmed at General Term in the third district.

The actions were subsequently commenced against the personal representatives, and a demurrer for the same cause, namely, that the actions did not survive against the personal representatives, was overruled at the Special Term, and that decision sustained at General Term in the same district (December Term, 1857).

These apparently conflicting decisions will come before the Court of Appeals for review.

The precedent here given can very readily be adapted to the case of an action brought against the wrong-doer, whether a natural person or a corporation. See such a case, and what the complaint is required to contain, Brown, administrator, &c., v. Harmon, 21 Barb., 508.

An action cannot be sustained, under this statute, by a plaintiff, as administrator of his deceased wife, for alleged malpractice, and injuries received by her from the defendant. The right of action is vested in the plaintiff as the husband of his wife, and not as administrator. (Lynch v. Davis, 12 How., 323.)

Nor can it be sustained unless the relation of master and servant exists between the party sought to be charged and the actual wrongdoer. (Blackwell v. Wiswall, 14 How., 257.)

The question involved in the case last cited, whether a lessor of a ferry was liable for the wrongful act of a ferryman in the employ of the lessee, is pending before the Supreme Court of the third district.

1 The allegation that a party thereby "became bound," &c., is a mere legal conclusion, and is improperly in the complaint.