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of his or their deposit note or notes, agreeably to the charter and by-laws of said company, and did therefor assess the sum so settled and determined upon to be paid by the several members of said company liable to be assessed therefor.
And the plaintiff further avers, that after the making of the said assessment, as said receiver, he published notice thereof in the “Mohawk Valley Register," a newspaper published in the county of Montgomery, once in each week for thirty days, commencing on the 6th day of July, 1854; and that previous to the 2d day of August, 1854, he caused notice to be served on each person assessed, of the amount so settled, determined and assessed to be paid by him on his premium or deposit note, requiring said assessment to be paid in thirty days after the service of such notice, by depositing such notice in the post-office at Fort Plain, directed to each person -assessed, at his place of residence, as far as such place of residence could be ascertained from the books of said company.
And the plaintiff further shows, that at a Special Term of the Supreme Court, held at the court-house in the county of Saratoga, on the 2d day of October, 1854, the aforesaid assessment, so made by said receiver on the premium notes (deposit notes meaning) of the members of said company, was ratified and confirmed, and the said receiver authorized and directed by said court to bring suits against the several members of said company, upon their premium notes (deposit notes meaning), who have refused or neglected to make payment of the amount so assessed by plaintiff to be paid on their respective premium notes (deposit notes meaning).
And the plaintiff further avers, that the said defendant's note aforesaid was assessed, for the purpose aforesaid, to the amount of $75, and said assessment was made for losses or damage by fire and expenses accrued to said company only whilst said note and policy of insurance therein mentioned were in full force and effect, which said assessment was made on said 20th day of June, 1854, and thereby the said defendant was required to pay said assessment, of which assessment the said defendant had due notice.
And the plaintiff further avers, that after the assessment, made by him as aforesaid, he ascertained that said assessment would not pay the losses and liabilities of said company, and that each and every of the premium or deposit notes of said company, if assessed to the entire amount thereof, would not pay the losses and liabilities of said company, and that the amount chargeable upon
each of said notes, by force of the statute, charter and by-laws of said company, was to the entire amount of each of the said notes.
And the plaintiff further shows, that at a Special Term of the Supreme Court, held at the court-house at Cooperstown, 'in the county of Otsego, on the first Tuesday of July, 1856, the said court ordered that the said plaintiff, as said receiver, be and was thereby authorized and directed to assess all the premium notes of said company to the entire amount due on each of them, and file his certificate of assessment in the office of the clerk of the county of Montgomery; and which order further directed, that if default should be made in the payment of said assessment for thirty days after the filing of said certificate in the office of the clerk of the said county of Montgomery, that then the said receiver (the said plaintiff meaning) be authorized and directed to bring suits for the entire balance due on said notes.
And the plaintiff further avers, that in pursuance of said order, dated the first Tuesday of July, 1856, he did, on the 31st day of July, 1856, assess all the premium notes of said company to the entire amount due on each and every of said notes, and did make his certificate of the said assessment, which said certificate of assessment he caused to be filed in the office of the clerk of said county of Montgomery on the 13th day of August, 1856, and the said defendant was required to pay said assessment, of which said assessment the said defendant had due notice on said 13th day of August, 1856, yet the said defendant hath neglected to pay the said assessment made by the said receiver as aforesaid, as required by said receiver, by reason whereof, and by force of the act of incorporation, the note aforesaid, the orders of the Supreme Court, and the statute, the said defendant became liable to pay the plaintiff, as receiver as aforesaid, the whole amount unpaid of said note 80 made and delivered by said defendant, as aforesuid, to said company, and hath not paid the same. Wherefore the plaintiff demands judgment against the defendant for the amount unpaid, being $500, with interest from the 2d day of September, 1854.
ÅENRY R. MYGATT,
Attorney for Plaintiff.
| This is merely the allegation of a legal conclusion, and is not properly in the complaint.
- (No. 17.)
By the committee of a lunatic or habitual drunkard, on a
demand against the survivor of a firm for service of the lunatic, no price having been agreed upon.'
SUPREME COURT – RENSSELAER COUNTY.
A. B., Committee of the person and estate
of C. D., a lunatic,
agt. E. F., survivor of E. F. and J. D., deceased.
The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action :
| By the Laws of 1845 (chap. 112), “receivers and committees of lunatics and habitual drunkards, appointed by any order of the Court of Chancery (Supreme Court), may sue, in their own names, for any debt, claim or demand transferred to them, or to the possession or control of which they are entitled as such receiver or committee," &c., &c. Under this statute it has been held that a lunatic, by the appointment of a committee, loses none of his estate, rights of property or rights of action, and that all suits affecting his personal property must be prosecuted in his own name, except those authorized by this statute to be brought in the name of the committee; and that the statute does not embrace an equitable proceeding by which an estate or interest in real property is sought to be established. (McKillip v. McKillip, 8 Barb., 552.) But in the case of Person, committee, v. Warren (14 Barb., 488), it is held that though, in an action to set aside an act or deed done by the lunatic, while such, as for example a confession of judgment, the committee could not be regarded as a person “expressly authorized by statute," under section 113 of the Code, yet he might still maintain such action under that section, as being the “trustee of an express trust.”
As to when committee may maintain an action alone, and when the lunatic must join with him or sue, see Pleadings, 136, 142.
A creditor of an habitual drunkard (or lunatic) cannot maintain a
That, by virtue of a commission heretofore issued out of the Supreme Court to and and to inquire whether the said C. D. was a lunatic or not, such proceedings were thereunder had, that on the execution of said commission by the persons therein named, and in the manner therein required, the said C. D. was found by the jury, empanneled to try said question, to be a lunatic, and incapable of the government of his person and estate ; that afterwards, at a Special Term of the Supreme Court, held at the court-house in the city of Troy,
day of — the report of said commissioners and finding of the said jury were confirmed, and the said plaintiff, A. B., was duly appointed, by order of the court, committee of the person and estate of said C. D., on his •executing and filing a bond, approved by a justice of said court, in the penalty of $4, for the faithful discharge of his duties as such committee in the manner required by said order; that such bond has been duly executed, approved and filed, as required by said order, and a commission in due form under the seal of said court has been issued to said plaintiff as such committee, and he has taken upon himself the burden of such trust.
legal action against his committee to recover a judgment upon a debt or demand against the drunkard. The proceeding by petition, as formerly in a court of equity, is the proper course, and should always be adopted, unless it is shown that a trial is necessary to settle some disputed question or right. In such case an order, upon cause shown, should be obtained, authorizing the bringing of an action in the nature of a suit in* equity. (Hull's executors o. Taylor, committee, &c., 8 How., 428.)
* In an action brought by a committee, his title to maintain the suit must be shown in the same manner as that of a receiver. The time, place and manner of his appointment must be stated, as they are traversable facts and the defendant has the right to take issue upon them. (White, receiver, v. Joy, 11 How., 36; same case, 3 Ker., 86, per Denio, J.; Hull's executors v. Taylor, committee, &c., 8 How.,