gers across said river, and that said license contained a provision authorizing the said Ebenezer Wiswall to demand and receive certain rates of ferriage therein specified; that the said Ebenezer Wiswall, after receiving said license, continued to hold the same and to maintain and run said skiff ferry for the said period of three years. And the said plaintiff further avers, upon her information and belief, that on or about the 13th day of October, 1854, while the said license remained unrevoked, the said Ebenezer Wiswall, by his servants or agents in his employ, did undertake, for the compensation provided for in said license, to convey the said George Yerton across the Hudson river by said skiff ferry, and in a skiff run at said ferry; that after the said George Yerton had taken passage in said skiff, and was being conveyed therein across said river, the said Ebenezer Wiswall, by his agent or servant, having command of said skiff, did carelessly and negligently upset the skiff containing the said George Yerton, who was thereupon drowned;1 that the said George Yerton died intestate, leaving him surviving his widow, who is the plaintiff in this action, and no children. And that the pecuniary injuries resulting from the death of the said George Yerton, to the wife and next of kin of the said deceased, are, at least, $5,000.2 1 In order to sustain the action, all the facts must be stated which are requisite to bring the case within the statute. Therefore there must be a positive allegation, not only of the acts, but of the qualifications presented by statute. A merely inferential charge of misconduct or negligence in the defendants is insufficient. (Brown, administrator, v. Harmon, 21 Barb., 508.) 2 The complaint must aver that the deceased left a widow or next of kin, who should be named, and that such relative suffered pecuniary injury to a specified amount from the death of deceased. The facts constituting the pecuniary injury to the surviving relative, upon which the right of action is based, must be set forth. (Stafford v. Drew, 3 Duer, 627.) And the said plaintiff further avers, upon her information and belief, that after the death of the said Yerton, and before the commencement of this action, to wit, on or about the 18th day of July, 1856, the said Ebenezer Wiswall died, leaving a last will and testament, in which the defendants are named executors; that said will has been duly proved, and said defendants duly appointed the executors thereof by the surrogate of Albany county, and taken upon themselves the execution of such trust. And the said plaintiff further avers, that she has been duly appointed sole administratrix of the goods, chattels and credits of the said George Yerton, deceased, by letters testamentary issued to her by the surrogate of Rensselaer county, on the, &c., and she has duly qualified and assumed the execution of such trust. Wherefore the said plaintiff, as administratrix, &c., demands judgment against the said defendants, executors, &c., for the pecuniary injuries so sustained as aforesaid, in the sum of $5,000, besides costs of this action, to be collected out of the estate of the said Ebenezer Wiswall, deceased. E. WOOSTER, Plaintiff's Attorney. (No. 16.) By a receiver of an insurance company on a premium or deposit note.1 SUPREME COURT-CHENANGO COUNTY. Justus White, Receiver of The Union Insu rance Company, Storm R. Haight. Justus White, who hath been duly appointed receiver, by the Supreme Court of the State of New-York, of the 1 I am indebted to HENRY R. MYGATT, Esq., of Oxford, for a copy of this precedent. It is like the complaints in the cases of Hyde v. Beardsley and Hyde v. Marvin, referred to in Van Buren v. Chenango County Mutual Insurance Company (12 Barb., 674); and though there are shorter precedents sometimes used, yet this is regarded by the counsel who prepared it as preferable, inasmuch as it has been several times sustained at General Term. It should be added that no demurrer was interposed to this complaint, but the defence was taken by answer, which, on account of its great length, it has been found inconvenient to insert in this volume. The plaintiff put in a demurrer (a copy of which will be found, post, part 6, under the head of "Demurrers"), and had judgment both at Special and General Term, thus substantially sustaining the complaint. That judgment was affirmed at the last term of the Court of Appeals, held December, 1857. In Hurlbut, assignee, &c., v. Root (12 How., 511), it is held that in an action by an assignee of a mutual fire insurance company, on a premium note, payable in such portions and at such times as the directors of the company may, agreeably to their charter and by law, require, alleging that the plaintiff, as assignee and trustee of the property and effects of the company, ascertained the losses and expenses, and settled and determined the sums to be paid by the members liable to contribute, as their respective proportions of such stock, property, things in action and effects of The Union Insurance Company, plaintiff in this action, complains of Storm R. Haight, defendant in this action, for that the said The Union Insurance Company was a mutual insurance company, with the name of The Union Mutual Insurance Company of Fort Plain, duly formed and incorporated by virtue of an act of the Legislature of the State of New-York, entitled "An act to provide for the incorporation of insurance companies," passed April 10, 1849, and said corporation was duly organized under said act, in the year 1850, to make insurance on dwellings, houses, stores, and all kinds of buildings and other property, against loss or damage by fire, and otherwise, as allowed in losses and expenses, without avering that the directors made, or caused to be made, an assessment on the note, is bad in demurrer; and that a voluntary assignee could not make a valid assessment on such a note. By the act of 1852 (chap. 71), receivers of the effects of such companies are authorized to make assessments. And by the act of 1854 (chap, 224), when an insurance company shall have made an assignment in trust for creditors, and the trust for any cause shall have become vested in the court, it is declared that the person appointed by the court to execute the trust, in addition to other powers and authorities, shall have the power and authority conferred on receivers by the act of 1852. The Supreme Court of the fourth district has decided, at General Term, that an assessment by the receiver is absolutely necessary to constitute a cause of action on such a note; and a complaint, to be sufficient, must contain such an allegation. The case has gone to the Court of Appeals. In Bangs, receiver, v. McIntosh (23 Barb., 591), it is held that when an assessment is made by a receiver of a mutual insurance company upon its premium notes, it is not complete and consummated until it is ascertained, fixed and determined, by carrying out upon the extension book the amount which each member is to pay. And that the notice of such assessment, if published before this is done, is premature. subdivision 2 of section 1 of the act last aforesaid, and subject to the other provisions of the said act; and policies of insurance were issued by said company upon the conditions allowed by said act, and said company carried on and conducted its busisess under said act, at Fort Plain, in the county of Montgomery, from the time of the formation and incorporation of the said company, under the said act, until on the 8th day of July, 1851, an act passed the Legislature of the State of New-York, entitled "An act to amend the charter of The Union Mutual Insurance Company at Fort Plain," whereby the name of the said The Union Mutual Insurance Company at Fort Plain was amended, so as thereafter to be called and known as The Union Insurance Company, and said company continued to carry on and conduct its business under said act, passed April 10, 1849, and the act amending the charter of said company, passed July 8, 1851, from and after the said 8th day of July, 1851, until on or about the 6th day of June, 1853, when, at a special term of the Supreme Court, held at the court-house in the county of Saratoga, on due notice, this plaintiff was appointed receiver of the stock, property, things in action and effects of the said company. And the plaintiff further shows, that after the said 6th day of June, 1853, and prior to the 28th day of June, 1853, the said plaintiff gave the requisite security as said receiver, and filed the same in the clerk's office of the said county of Montgomery, and entered upon the duties of his office as such receiver, and is now, as said receiver, in possession of the stock, property, things in action and effects of the said corporation.1 1 To recover as receiver, it is necessary to allege in legal form that the plaintiff was appointed receiver of the property and effects of the corporation. The time, place and manner of the appointment are traversable facts and should be stated. (White, receiver, v. Joy, 11 |