(No. 23.) 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.1 Title of the Cause. The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action: day of 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, &c., 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. 8 of, the day mentioned in said agreement, offered 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. day of J. F. P., Plaintiff's Attorney. 1 (No. 24.) 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., agt. C. D., E. F. and G. H. The plaintiff complains of the defendants, and alleges: 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 surrogate of the county of Kings, to be appointed administrator, &c., of the estate of one D. M., deceased, such proceedings were had that said D. M. was appointed such administrator, by order of said surrogate, on his executing and filing the bond required by statute, in the penalty of $, &c. That said C. D., with the defendants, E. F. and G. H., his sureties, thereupon, on the day of —, executed, acknowledged and delivered, and filed with said surrogate, said bond, a copy of which is hereto annexed: [ Or set forth penalty and condition.] That said A. B., the relator herein, having a demand arising on contract against the estate of said deceased, amounting to the sum of $, procured a citation, pursuant to statute, to be issued by said surrogate to said administrator, requiring him to show cause why he should not be decreed to pay the amount, &c.; that said administrator appeared on the return of said order, and such proceedings were thereupon had that on the day of by the decree of said surrogate, duly given or made and entered, it was decreed that said administrator do pay opinion of the General Term (per S. B. STRONG, J.), that the provision of the Code, requiring the action to be brought by the real party in interest, is satisfied in suits upon official bonds given to the people, where, as in this case, they are named as plaintiffs, upon the relation of the proprietor of the claim; and that the defendant cannot be prejudiced by the proceeding, as the relator will, if unsuccessful, be responsible for the costs. A better and more satisfactory reason is given in the opinion of the Special Term, namely, that the people in such cases are "trustees of an express trust," within section 113 of the Code, and may sue as such. This is precisely the doctrine of the Court of Appeals (see People v. Norton, 5 Selden, 146), in which such a suit was held properly brought by the people, on a bond given for the faithful execution of a trust, for the benefit of those interested in the trust estate. It does not seem to be necessary to bring the suit on the relation of the persons interested. to said A. B., out of the assets of said estate or otherwise, the said sum of $ with interest from, &c., amounting in all to the sum of $ That, after the entering of said decree and notice thereof to said administrator, the said A. B. demanded of him payment of said sum of $-, which he refused and has hitherto refused, and still refuses and neglects to pay, and said decree remains unreversed and in full force, and not appealed from or its execution stayed. That on due proof of such facts being made to said surrogate, he, the said surrogate, did, on the day of ——, duly make and enter an order, pursuant to the statute in such case provided, that said bond should be prosecuted, and that the amount of the debt, interest and cost, so decreed, should be collected upon it, and applied to the satisfaction of the said decree. Wherefore the plaintiffs demand judgment, that the defendants be adjudged to pay said plaintiffs the said sum of $, with interest thereon from, &c., besides costs. G. A. B., $ Plaintiffs' Attorney. (5.) IN CASES WHERE PARTIES ARE Numerous and ONE OR MORE MAY SUE FOR or Defend tHE WHOLE, UNDER SEC. 119, Code.' (No. 25.) By three subscribers to a common fund (there being numerous other subscribers), in behalf of all, to recover subscriptions collected which have been deposited in bank, the bank refusing to pay.2 SUPREME COURT-ALBANY COUNTY. A. B., C. D. and E. F. agt. The Bank of The plaintiffs abovenamed, as well in behalf of them selves as of all others similarly situated, and having a common interest with them in the subject matter of this 1 It is intimated, though not decided, in Habicht v. Pemberton (4 Sand., 657), that this section ought to be construed as merely reenacting the rule, that might otherwise be held to be abolished, which prevailed in courts of equity, and consequently that it is to suits equitable in their nature that this provision should be exclusively applied. It will be seen, however, that the provision is general, and there is no reason why it should not equally apply to an action for damages merely, although such cases will be found of rare occurrence. Its application is most frequent in that class of equity cases in which one or more creditors seek an account of a trust fund, in behalf of themselves and others, an example of which will be found, No. 76, ante, page 175. * This case seems to me to come within the provision of that clause of section 119, which authorizes the action to be brought in this form, where "the question is one of a common or general interest of many persons." It cannot properly be brought within the provisions of the statutes of 1849 and 1851, relative to unincorporated joint stock and other associations and companies. (See note to No. 18, ante, p. 392.) |