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That on or about the

the said C. D., at the request of said E. F. and J. D., who were then partners in trade under the firm name of E. F. & Co., entered into their employ as [stating generally the nature of the services,] and continued in such employ for the period of six months then next ensuing, and during all that time rendered labor and service for them as such, &c., which services were reasonably worth the sum of $- no part of which has been paid to said C. D. or this plaintiff.

That said J. D. has since died, to wit, on the day of leaving him surviving the defendant, E. F.

Wherefore the plaintiff demands judgment against the defendant for the sum of $— with interest from, &c., besides costs.

J. L. F.,

Plaintiff's Attorney.

628; Pleadings, 291, 292.) It will be seen that in all these cases coming under the exception of section 113 of the Code, which allows persons “ expressly authorized by statute" to sue without joining the real party in interest, the rule is the same. It is not sufficient generally to describe the plaintiff as committee, &c., but the facts showing the appointment must be stated in all cases, whether the action be brought by an executor or administrator, a president of an association, or bank, a committee, receiver, public officer or any other person not the real party in interest, but clothed with a statutory power to sue. It is but the application of the general rule, that the plaintiff must show his right to the claim or demand. He must show it if he is the real party in interest or owner of the demand ; and he must show it none the less distinctly if he claims it merely in a representative or fiduciary capacity.

(No. 18.)

By the president of a joint stock or other association of

more than seven persons, not incorporated, on a demand owned by such association for land sold.

SUPREME COURT-COLUMBIA COUNTY.

Cemetery As8o

A. B., President of

ciation,

agt. C. D.

The plaintiff complains of the defendant, and alleges : That said plaintiff is the president, duly elected, of the

Cemetery Association, of the town of

1

By the Laws of 1849 (chap. 258 ), any joint stock company or association, consisting of seven or more associates, may sue or be sued in the name of the president or treasurer; and the act of 1851 ( chap. 455 ) extends the act of 1849 to any company or association, composed of not less than seven persons, who are owners of or have an interest in, any property, right of action or demand, jointly or in common. The complaint, therefore, should allege that the party bringing the suit is president of such an association or company, and should show that the demand belongs, jointly or in common, to the shareholders.

The complaint is that of a company not incorporated; for it has been held that the provisions of the acts are applicable only to unincorporated companies or associations; now, it is only suits by or against such that can be prosecuted in the names of all the shareholders. (New-York Marbled Iron Works v. Smith, 4 Duer, 362.)

The intent of the statutes is to obviate the inconvenience of joining all the shareholders or associates as parties; it is to facilitate an existing right of action, and not create a new one. Hence, the president or treasurer of such an association has no right to sue, except in cases where the shareholders or associates could before have sued. (Corning v. Green, 23 Barb., 33.) These, officers, therefore, are which is an association not incorporated,' composed of more than seven associates or shareholders, and is the owner, that is to say, the said associates jointly own a certain lot of ground, consisting of about three acres, in said town, known as the cemetery, and laid out for the purpose of a rural cemetery or burial ground.

That said defendant, on the - - day of —, bought of said association, and took a proper conveyance therefor, a lot in said cemetery known as lot No. ,

for the price of $150, and has entered upon the possession thereof, but has not paid for the same, except the sum of $50, paid at the date of said conveyance.?

Wherefore the plaintiff, as such president, &c., demands judgment against the defendant for the sum of $100, with interest from

besides costs. J. F. P.,

Plaintiff's Attorney.

day of

persons "expressly authorized by statute" to sue, within the meaning of section :113 of the Code. In Tibbetts, treasurer, &c., v. Blood (21 Barb., 650 ), it is held that a promissory note, executed to bearer and given for the benefit of a division of the “Sons of Temperance," composed of more than seven persons, might be sued in the name of the treasurer, and that the complaint need not state the names of seven of the associates. It is sufficient if it avers that the association consists of seven associates, and upwards. Companies or societies, not incorporated by competent authority, are nothing more than ordinary partnerships, however numerous the members may be. (Dennis and others v. Kennedy and others, 19 Barb., 517.)

1 If the association is incorporated, of course the action should be in its corporate name.

2 It is unnecessary for the plaintiff to set forth, in his complaint, payments made to him on account of the indebtedness in suit. ( Van Demark p. Van Demark, 13 How., 372.)

50

(No. 19.)

Against an association of more than seven persons, not incor

porated, by the name of its president, on a demand for rent.

SUPREME COURT - RENSSELAER COUNTY.

A. B.

agt. C. D., president of the

Association.

The plaintiff complains of the defendant, and alleges :

That the Association is an association consisting of more than seven members or associates, not incorporated, but associated together for the purpose of (mentioning the object,) and the defendant is the duly appointed president thereof.

That said association, through its executive committee, on the 1st day of January, 1857, rented and leased of the plaintiff the room or hall in, &c., [describing it,] for the full term of one year, at and for the rent of $150, for the purpose of holding its meetings and for other purposes, and thereupon entered upon and continued in the use and occupation of said hall, for such purpose, for the full term of one year from said 1st day of January, 1857, to the 1st day of January, 1858, and has not paid said plaintiff the said rent, or any part thereof.

Wherefore the plaintiff demands judgment against the said defendant, president of said

Association as

1 By the act of 1851(chap. 455), an action will lie against the president or treasurer of such associates, who "may be liable to any action on account of such ownership or interest," and the complaint should, therefore, show such "ownership or interest.”

aforesaid, for the sum of $150, with interest from the 1st day of January, 1858, besides costs.

JOHN F. PORTER,

Plaintiff's Attorney.

(No. 20.)

By commissioners of highways, under authority of statute,

for damages by railroad company to highway.'

SUPREME COURT - COLUMBIA COUNTY.

G. L S., L. V. and C. C. H., commissioners
of highways of the town of

agt.
The Railroad Company.

The plaintiffs, who are the commissioners of highways of the town of

in Columbia county, duly elected

1 Complaints by either town, county or public officers can be very readily adapted from this precedent, the complaints in all cases being made to show, by the proper averments, the title of the officer to maintain the action.

As to cases in which town and county officers and other public officers are authorized to sue, see 2 Rev. Stat., 569 ( 3d ed.'); Pleadings, 443. It is said in the text ( Pleadings, 144 ), on the authority of Cornell & Clark v. The Butternut and Oxford Turnpike Company (25 Wend., 365.), that commissioners of highways, under the statute, can

2 The action is properly, brought in the names of the individual commissioners, with the addition of their name of office. But the complaint must aver that they are commissioners, and, as such, complain of the defendant. If no such averment is made, showing that they sue in their official capacity, though the title names them as commissioners, they will be deemed to sue in their individual and not in their official capacity. ( Gould v. Glass, 19 Barb., 179.)

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