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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
by the decree of said surrogate, duly given or made and entered, it was decreed that said administrator do
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.,
( 5.) In CASES WHERE PARTIES ARE NUMEROUS AND ONE OR MORE
MAY SUE FOR OR DEFEND THE WHOLE, UNDER SEC. 119, CODE.'
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.?
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
" 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.)
action, as hereinafter stated, complain of the defendant, which is a banking institution duly incorporated under the laws of the State of New York.
That a subscription was heretofore circulated by the plaintiffs, for the purpose of procuring funds to erect a new church edifice in the town of — to be called the “ _church,” and the plaintiffs, and about one hundred other persons, subscribed the same, in sums varying from $5 to $100 each, and the said plaintiffs, and most of the other subscribers thereto, have paid the whole or the greater portion of their subscriptions.
36, Part II., ante, p. 175; and where one or more legatees, in behalf of themselves and other legatees, seek an accounting, and for an application of the testator's estate, as in McKenzie v. L'Amoreux (No. 80, part II, ante, p. 335 and note; see also Pleadings, 123 127.)
It has been held that where the plaintiff, a stockholder of a company, prosecuted in his own behalf the directors and secretary of the company, alleging false and fraudulent representations, and fraudulent over issue of the stock of the company, and appropriating by the defendants, to their own use, the property of the company, whereby the plaintiff's stock was valueless or nearly so; that all the stockholders having a common interest, and affected in the same proportionate degree, according to the quantity of stock each held, it was a case in which there should be but one recovery, and in which all of the same class should join, or the suit should have been prosecuted by the plaintiff for the benefit of himself and the other stockholders. (Wells 0. Jewett, impleaded with others, 11 How., 242.) In a similar case (Bell v. Mali and others, 11 How., 254), it is held that the false representations, with proper averments, would give a cause of action to the plaintiff alone; the mere over issue of stock would give a cause of action to the company, or the plaintiff and all the other stockholders.
1 It is not sufficient simply to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right or their own names. (Habicht v. Pemberton, 4 Sand., 657.)
That said plaintiffs, collected a considerable part of said subscription, amounting in all to the sum of $, and deposited the same in the said Bank of to the credit of the “church;” and that others of said subscribers have collected other portions of said subscriptions, amounting to the sum of $- and deposited such sum to the like credit, in the same bank.
That said “ church” is not yet erected, and the subscribers are not incorporated, and there is no such body corporate or organized society as the “church,” and no person or persons, other than said subscribers, who are authorized to receive such deposits, to the knowledge or belief of the plaintiffs.
That said plaintiffs, and the other persons depositing such money in said bank, have demanded the same at its banking-house in - that is to say, on the day of
during the usual hours of business of said bank, and said bank refused to pay the same.
Wherefore the plaintiffs, in behalf as well of themselves as of all other persons similarly situated and subscribing to or interested in said fund, demand judgment against the defendant for the sum of $— with interest thereon from the, &c., [the time of demand, ] besides costs.
J. L. F.,