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until the loss and damage hereinafter mentioned, this plaintiff, as such assignee as aforesaid, had an interest in the said insured property, to a larger amount than the money insured, as aforesaid, thereon by the said defendants.
And this plaintiff further says, that on the evening of the 26th day of April, 1851, the said property, in said policy of insurance mentioned, then still possessed and held by plaintiff, as aforesaid, was destroyed by fire, whereby this plaintiff, as such assignee as aforesaid, sustained damage, in the destruction and loss of the said insured property, to the amount of $4,000 and upwards, estimated according to the true and actual value of the property at the time of such loss.
And this plaintiff further says, that he has duly performed all the conditions, and in all things observed and performed and fulfilled all and singular the matters and things, on his part, in and by said policy and application, and the conditions, proposals and provisions of the by-laws, or extracts therefrom, annexed to said policy, to be performed, observed and fulfilled ; and that notice in writing of said loss and damage was forthwith, after the happening thereof, to wit, on the 29th day of April, 1851, given to the said defendants, and that within thirty days after said loss and damage this plaintiff delivered to the said defendants a particular account of such loss, signed by his hand and verified by his oath, in the form and manner required by the said policy and application, and the conditions, proposals and provisions of the by-laws aforesaid.
Yet the said defendants, although often requested, have not paid to this plaintiff the said sum of money so by
? This is sufficient in pleading performance of conditions precedent by the Code, 162. The part in italics is unnecessary.
them insured as aforesaid, or any part thereof, or in any wise repaid or reimbursed to him the said loss, or any part thereof, but have wholly refused and still do refuse so to do.
Wherefore this plaintiff demands judgment against the said defendants, for the sum of $3,000, and interest from the 29th day of July, 1851, with costs of this action. PIERSON, BEACH & SMITH,
Attorneys for Plaintif.
(No. 22. )
By general guardian of infant, to recover back money paid
by mistake on account of his ward.
SUPREME COURT - DUTCHESS COUNTY.
sirdi nemys. km A. B., general guardian of C. D., an infant,'
agt. E F.
The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action :
That said C. D. is an infant, and one of the next of kin of R. D., deceased, who died intestate on or about the
day of — at the town of in Dutchess
of the Nos
' In this case the suit is not the infant's, by his guardian, as in Nos. 1 and 41, part II., pages 46, 190, ante, but is the suit of
guardian, brought by him as “trustee of an express trust," within the provisions of section 113. In such a case the decision in Hulbert, an infant, v. Young (13 How., 413), is applicable, and the complaint, as in cases of receivers, committees, &c., must show, by proper averments, the time, place and manner of the guardian's appointment. (See notes, ante, pp. 190, 283.)
county, where he and said infant then resided, leaving a large estate of personal property, which, after paying the debts of said intestate, has been duly distributed to the next of kin of said R. D., by order of the surrogate of said county.
That such proceedings were had before said surrogate, that, by an order of said surrogate, bearing date the, &c., the said A. B. was duly appointed the general guardian of said infant, on his executing the security required by said order according to law.
That such security has been duly executed and filed, and said A. B. has duly qualified to act as such guardian, and as such has received the distributive share of said infant in his father'sestate.
That on the - day of — said plaintiff, out of the money of said infant in his hand, paid the defendant the sum of $-on an alleged claim and account of said defendant against said infant for necessaries, and on the representation by said defendant that the same was still due and unpaid.
That in point of fact, the said account had been settled and paid at the time, by the agreement of said defendant with the administrators of said R. D., deceased, to apply the debt which he owed said estate on said claim, which was done by said administrators for and on behalf of this plaintiff, and the receipt in full of said defendant taken before said money was paid him by said plaintiff, but without plaintiff's knowledge.
Wherefore the plaintiff, guardian, &c., as aforesaid, demands judgment against the defendant for the sum of with interest from day of - besides costs.
J. L. F.,
By an agent, to recover stipulated damages for breach of a
contract to convey lands made by the agent, for the benefit of his principal."
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action: That on the
-, the plaintiff was duly authorized by one G. H. to enter into an agreement to purchase for him a certain house and lot, [describing it, ] and thereupon, being so authorized, he entered into an agreement in writing with the defendant, duly executed by the defendant in his own name, and by the plaintiff in his name, as agent of said G. H., and duly delivered, a copy of which agreement is hereto annexed, (or state the substance of it, setting forth the contract to convey, fc., and to pay the stipulated damages in case of failure.]
That said plaintiff duly performed all the conditions in said contract, on his part, or on the part of said G. H., mentioned therein to be performed, and on said — day
1 By section 113 Code, it is declared that a trustee of an express trust shall “include a person with whom, or in whose name, a contract is made for the benefit of another." In cases of this kind, it would seem that the real party in interest might also maintain the suit. (Ericson v. Compton, 6 How., 471; and see Pleadings, 137, 138.) Within this clause of the Code, as amended, it seems, too, that in a case like that of Lane v. The Columbus Ins. Co. (2 Code R., 65, referred to in Pleadings, 115, 117), an action might now be maintained by an agent, on a policy of insurance, effected by the agent on his principal's property, containing a clause, that the loss, if any, should be paid to the agent.)
of —, the day mentioned in said agreement, offered and dered to said defendant the said sum of $. and offered to execute the mortgage therein mentioned, to secure the balance of said purchase money, and demanded of said defendant a delivery of the conveyance thereof, pursuant to the terms of said agreement, which he, the defendant, refused, and has ever since refused.
Wherefore the plaintiff demands judgment against the defendant, for the sum stipulated as damages in said agreement for a breach thereof, to wit, the sum of $—, with interest thereon from the
besides costs. J. F. P.,
By the people, as plaintiffs, being “ trustees of an express
trust," on an administration bond.1
SUPREME COURT-KINGS COUNTY.
The People of the State of New-York, on
the relation of A. B.,
The plaintiff complains of the defendants, and alleges: That on the application of the defendant, C. D., to the
· The complaint is drawn on the authority of the decision in the case of The People, ex rel. Demarest, v. Lacost and others (3 Abbott, 450 ), affirmed at General Term (4 Abbott, 292). The action is on an administrator's bond, prosecuted pursuant to the Revised Statutes, part 2d, ch. 6, title 5, § 19 ( 4th ed., p. 300), which authorizes the surrogate “to cause the bond to be prosecuted.” It is said, in the