might establish its existence, is, until the accounting has been had, unliquidated, and not capable of being ascertained by "calenlation," within the meaning of the statute. 66. A party who sees his obligation transferred by the holder to a bona fide purchaser, for a valuable consideration, without giving notice of any defense or set-off which he may claim against it, is estopped from setting up such defense or set-off. 67. (14 Q.) The assignee of a foreign executor may maintain an action in our courts upon a chose in action transferred to him by such foreign executor. And it is no objection that the assignment was made to avoid the difficulty arising from the incapacity of such executor to sue in our courts. $113. Executor or trustee may sue without the persons beneficially interested. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: § 93. [1848.] An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the persons for whose benefit the suit is prosecuted. Questions. 3. Q. When is a factor or mercantile agent to be considered “a trustee of an express trust?" 4. Q. Can an ordinary merchandize broker, or an auctioneer, maintain an action in his own name, as “trustee of an express trust," in a contract of sale for goods sold for third persons? 5. Q. Can a consignee or indorser of a bill of lading bring an action on the contract contained in the bill? 6. Q. In whose name may individual banks and banking associations bring actions? 7. Q. When can an assignee for the benefit of creditors sue in his own name, and without setting out his representative character? 8. Q. Can executors and administrators sue in their own right and in their representative character, at their election? 9. Q. Can one partner act as trustee of an express trust for his co-partner? 10. Q. Can a registered officer of a foreign banking associatiou, or an executive agent of ɑ foreign corporation, maintain an action here on behalf of the bank or corporation in his own name? 11. Q. Under the statutes of 1849 and 1851, “in relation to suits by and against joint stock companies and associations," what companies and associations and what officers are capable of suing and being sued? 12. Q. Is a bond given to the people of the state, for the benefit of those interested and named in it, properly prosecuted in the name of the people? 13. Q. When and how may actions be brought by and against supervisors and other town officers? 14. Q. In whose name, as plaintiff, must an action be brought upon a constable's bond of the city of New York! 15. Q. When and how may actions be brought and maintained against transportation companies organized under the Revised Statutes? 16. Q. Who are proper parties to bring actions under the statutes of 1847 and 1849, for causing death by wrongful act, neglect or default? 17. Q. How are actions to be brought to recover debts against a limited partnership? 18. Q. How are the liabilities of stockholders of dissolved manufacturing corporations to be enforced? 19. Q. How are actions to be prosecuted for and against lunatics and habitual drunkards? 20. Q. Who is the proper party to bring an action against a lessee for a breach of covenant of the lease, where the lessor has, since the breach, assigned the lease and conveyed the demised premises? 21. Q. In whose name should an action be brought to recover a penalty under the act to suppress intemperance, &c., passed April 16, 1857 ? 22. Q. In whose name should actions be brought for penalties given by statute relative to the port wardens, harbor masters and pilots of the port of New York? 23. Q. Who may bring actions to recover for penalties and forfeitures given by law to any person who will sue for the same, and also where the statute gives one-half to the complainant and the other half to the county treasurer? 24. Q. Have boards of health, as constituted by statute, capacity to sue and be sued? 25. Q. Has the Seneca Nation of Indians, residing in this state, power and capacity to bring and maintain actions in their corporate name? 26. Q. Has a republic, acknowledged as such by our own government, or an officer of a foreign government, specially authorized, a right to sue in our courts, and if so, in whose name? 27. Q. Where a grant of land is made to one person and the consideration is paid by another, in whom does the legal and equitable title vest, and in whose favor does a resulting trust arise? 28. Q. When does a sheriff become a "trustee of an express trust," by virtue of a bond of indemnity for a levy and sale of property, or under an actual lery? 29. Q. Have receivers and assignees of foreign corporations a right to bring actions at law and in equity in our courts? 30. Q. In whose name are actions on behalf of the United States to be brought? 31. Q. Can surviving executors sustain an action at law against the legal representatives of a co-executor, deceased, for assets belonging to the estate? 32. Q. Can any trustee become the purchaser of the subject of his trust? 33. Q. When does a trustee under a will, made a party defendant in a partition suit, represent the interest of persons not in being, so as to bind them by the decree as fully as if they were made parties by name? 34. Q. When is it proper for a cestui que trust to bring an action in his name against his trustee, to compel a performance of the trust? 35. Q. Can a trustee of a religious society be sued by his co-trustees as a trespasser, in respect to the property of the society? And how are religious societies to sue? 36. Q. When may an individual proprietor of land, interested in the preservation of a public park or green, maintair an action on behalf of himself and others similarly situated, to prevent the perversion of such park or green? 37. Q. Where the relation of landlord and tenant exists between a widow, who is guardian in socage for infant heirs, and a tenant, is she the proper person to bring an action to recover rent arising from the occupation of the estate ? 38. Q. In whose names are actions in place of scire facias, quo warranto, and informa tions in the nature of quo warranto, to be brought? 39. Q. Can trustees appointed under a foreign bankrupt law, or foreign bankrupt judicial proceedings, sustain an action in our courts to enforce a right to property here, acquired by such foreign law? 40. Q. By whom are actions to be brought in relation to school property in the city of New York! 41. Q. How are actions to be brought for the benefit of the fire department of the eastern district of Brooklyn? 42. Q. How must an action be brought upon the official bond of a town superintendent of common schools? 43. Q. If personal assets in this state belonging to a foreign executor are sold by such executor, can the assignee sue here to compel a transfer? 44. Q. How must an action be brought to restrain a municipal corporation from exercising unlawful authority in making a contract? 45. Q. Where a mutual insurance company transfer premium notes to an individual as collateral security for a loan of money to the company, can he bring an action upon such securities in his own name? 3. Q. When is a factor or mercantile agent to be considered "a trustee of an express trust?" A. In Grinnell agt. Schmidt, 2 Sandf., 705, General Term, April. 1850, MASON. J., it was decided, that where a factor or other mercantile agent contracts in his own name, on behalf of his principal, he is to be considered a trustee of an express trust, within the meaning of this section, and is the proper party to bring the action upon the contract. Mercantile agents and factors who, according to the usage and custom of merchants, do business in their own names, but for other parties, are trustees in the strict sense of the term. The trust, though not created by a formal deed or instrument, yet appears upon the face of every order contained in the correspondence of their principals, in pursuance of which they act, and may therefore well enough be called an "express trust." In Rowland agt. Phalen, 1 Bosw., 43, General Term, April, 1857, WOODRUFF, J., it was decided, that as to a contract made by a party of the first part, assuming to act on behalf of others not named, and to bind himself personally to accomplish certain results beneficial to the parties of the second part, in consideration of their agreement to pay him for the benefit of those for whom he acts, the party of the first part is "a trustee of an express trust," within the meaning of this section, and may sue in his own name, without joining with him those for whose immediate benefit the action is prosecuted. In Morgan agt. Reid, 7 Abb., 215, General Term, September, 1858, EMOTT, J., it was decided, that any person who, as agent, executes a contract which does not disclose the name of his principal, “is a trustee of an express trust," within the meaning of this section, and may maintain an action on the contract in his own name. It seems, however, that on such a contract either the principal or the agent may maintain the action. In The Union India Rubber Company agt. Tomlinson, 1 E. D. Smith, 380, Special Term, March, 1852, WOODRUFF, J., it was decided, that where an agent sells goods in his own name, without disclosing his principal, the principal may, nevertheless, maintain an action for the price or value thereof, and this section of the Code does not render it necessary that the action should be brought in the name of the agent as the "trustee of an express trust," In Van Lien agt. Byrnes, 1 Hilt., 133, General Term, May, 1856, DALY, J., it was decided, that an undisclosed principal may always sue to enforce rights acquired on his behalf by his agent, though he does so subject to any equities which the defendant may have against the agent. In Nelson agt. Nixon, 13 Abb., 104, N. Y. Com. Pleas, General Term, July, 1861, DALY, J., it was decided, that an agent may sue upon a contract made with him as such, and for the fulfillment of which he is personally bound, without any assignment from his principal. In Thompson agt. Gruber, 21 How., 433, N. Y. Com. Pleas, General Term, August, 1861, BRADY. J., it was decided, that a plaintiff, as agent, cannot maintain an action in his own name for goods sold by his predecessor, who was also an agent, and who has since died, although the plaintiff had a full power of attorney to transact any business connected with the business of the decedent. The power of attorney had no vitality after the death of the plaintiff's predecessor. The plaintiff could not act as the attorney of a decedent. The trust was not a continuing one, which was capable of being transferred. The only person in whose name the action could be maintained was the principal for whom the goods were sold. 4. Q. Can an ordinary merchandize broker, or an auctioneer, maintain an action in his own name, as "trustee of an express trust," on a contract of sale for goods sold for third persons? A. In White agt. Chouteau, 10 Barb., 208, General Term, December, 1850, EDWARDS, J., it was decided, that a mere ordinary merchandize broker, not acting under a del credere commission, cannot maintain an action in his own name to recover the price of goods sold by him for the owner. But if the broker has advanced upon the goods sold, or has guaranteed the sale, he may sue in his own name. In Bogart agt. O'Regan, 1 E. D. Smith, 591, General Term, December, 1852, DALY, J., it was decided, that an auctioneer, who, in his own name, sells goods for a third person, is the trustee of an express trust, within the meaning of this section, and may sue upon the contract of sale, without an assignment to him of the cause of action. The duties imposed by the Revised Statutes upon auctioneers were designed for public protection, and an auctioneer who neglects to perform them incurs certain penalties and forfeits his appointment. But, to recover for a sale made by him, it is not necessary for him to show that he complied with the statute. He is not bound to show that he was a licensed auctioneer. He sues under the statute as a "trustee of an express trust," having made a sale of goods for the benefit of another. In Minturn agt. Main, 3 Seld., 220, October, 1852, EDMONDS, J., it was decided, that an auctioneer has such a special property or interest in the subject matter of the sale that he may sue in his own name, unless the principal or real owner elect to bring the action in his name. And it is not necessary to prove that he has a special property or interest, for that flows as a matter of course from his position as an auctioneer; and it is only where a party acts as a mere agent or servant that a special beneficial interest must be proved to maintain an action, or may be disproved to defeat it. Therefore, a public auctioneer who sells goods for another may maintain an action for the price, although he has received his advances and commissions and has no interest in the property sold or its proceeds. In Bleeker agt. Franklin, 2 E. D. Smith, 93, General Term, March, 1853, WOODRUFF, J., it was decided, that where the terms of a sale made by an auctioneer require that histees should be paid by the purchaser, he may maintain an action against the purchaser for such fees in his own name. In Muller agt. Maxwell, 2 Bosw., 359, General Term, December, 1827, SLOSSON, J., it was decided, that where the written terms of a sale of a lease of real estate are that "the lessee will pay the auctioneer his fee, and the person purchasing at the time of such purchase signs a paper writing (at the foot of such written terms), which states that he has leased such real estate for a specified sum, and "agrees to comply with the terms above set forth," the auctioneer (a lease of the premises having been made to and acceepted by such purchaser), may maintain an action in his own name against the purchaser, to recover such fees. Had the memorandum been actually signed by the owner, or by the plaintiff, as his lawfully authorized agent, it would, though not signed by the defendant, have bound the latter, and have created, in respect to the auctioneer's fees, a privity of coutract between him and the plaintiff, which would have entitled the latter to sue for the fees in his own name. But the memorandum is actually signed by the defendant, and by it he expressly agrees to pay the auctioneer the fees for which he now sues. Whether this be treated as a stipulation with the owner to pay the auctioneer, or with the auctioneer himself, in either case the latter may sue for them in his own name. 5. Q. Can a consignee or indorser of a bill of lading bring an action on the contract contained in the bill? A. In Dows agt. Cobb, 12 Barb., 316, General Term, December, 1851, EDWARDS, J., it was decided, that a consignee or indorser of a bill of lading has not the right to sue upon the special contract contained in the bill, unless he is also the shipper or owner of the goods; for the reason that, otherwise, no express contract is made with him. Although the proper indorsement of a bill of lading will transfer the property in the goods, it does not transfer the compact contained in it. As a general rule, a suit founded upon the express contract contained in a bill of lading should be brought by the shipper with whom the master contracted, or by the owner of the goods, in a case where the shipper acted as his agent. 6. Q. In whose name may individual banks and banking associations bring actions? A. In Burbank agt. Beach, 15 Barb., 331, General Term, June, 1853, T. R. STRONG, J.. it was decided, that the nominal proprietor of an individual bank, who furnishes the securities to the comptroller, and to whom the circulating notes of the bank are delivered by the comptroller, and in whose name, as proprietor, all the contracts and transactions of the bank are made and conducted, is "a trustee of an express trust," within the meaning of this section, and may, therefore, properly sue upon a bill discounted by the bank, without uniting as plaintiffs other persons interested in the bank as co-proprietors with him. In East River Bank agt. Judah, 10 How., 135, Special Term N. Y. Com. Pleas, October, 1854, INGRAHAM, J., it was decided, that an association formed under the general banking law may maintain an action either in the name of its president, or the name used in transacting its business, designated in the articles of association. In The Bank of Havana agt. Wickham, 16 How., 97, General Term, June, 1858, BALCOM, J., it was decided, that an individual banker is a corporation sole, and may take any corporate name he may choose, and sue in that name. Therefore, an individual banker, carrying on the business of banking at Havana, New York, under the general banking law, in the name of "The Bank of Havana," has a legal capacity to sue in such name. In The People agt. Walker, 21 Barb., 637, General Term, March, 1856, GOULD, J., an action was held to be maintainable against the trustees of a bank subject to the provisions of the safety fund act, for the recovery of a sum payable by the bank under the act, brought in the name of the people, the state being the trustee of the entire bank fund, for the benefit of all persons having claims upon it. In Leonardsville Bank agt. Willard, 16 Abb., 111, General Term, January, 1859, BALCOM, J., which was affirmed by the court of appeals, 25 N. Y. R., 574, December, 1862, DENIO, J., it was decided, that a banking association formed under the general banking law may sue in its associate name, as well as in the name of its president. In Root agt. Price, 22 How., 372, Special Term, January 1861, ALLEN, J., it was decided, that actions brought by or in behalf of a banking association may be prosecuted in the name of the president thereof, or the action may be brought in the name by which the association is known. Both are corporate names; and when the action is brought by the association in the name of its president, and that fact appears, the association is the plaintiff, and may be so referred to in all proceedings in the action. 7. Q. When can an assignee for the benefit of creditors sue in his own name, and without setting out his representative character ? A. In Mellen agt. The Hamilton Fire Insurance Co,. 5 Duer, 101, General Term, December. 1855, DUER, J., it was decided, that an assignee for the benefit of creditors, to whom, among other property, a policy of insurance was assigned, after a fire had occurred, may sue in his own name, without those provided for by the assignment being made parties, to recover the loss. In Lewis agt. Graham, 4 Abb., 106, N. Y. Com. Pleas, General Term, January, 1857, INGRAHAM, J., it was decided. that an assignee of a demand in trust to pay certain creditors of the assignor, and the balance to the assignor himself, may bring an action in his own name, without joining the cestui que trusts as plaintiffs. In Strong agt. Strickland, 32 Barb., 284, General Term, July, 1860, ALLEN, J., it was decided, that a mortgagor who has parted with the fee of the mortgaged premises by an assignment of his property in trust for the benefit of creditors may, nevertheless, niaintain an action to cancel and set aside the mortgage on the ground of usury. Although he has parted with the fee of the mortgaged premises, it is cnly in trust for the payment of his debts in a prescribed order and by the agency of the trustees. He is interested in having the assigned property appropriated for the purposes to which he has devoted it— the payment of debts for which he is personally liable. To this extent he is interested in the mortgaged premises as a part of the assigned property, and it is a pecuniary interest which the courts will protect. And from his right to any surplus that may remain after the payment of debts, it is not a matter of indifference whether the property is sold under the trust, or at a final sale at auction, upon the foreclosure of the mortgage. He is entitled to have the premises sold to the best advantage under the trust, that it may go the furthest in the discharge of his debts. He alone can set up usury against the mortgagee. Such a defense can only be set up by a party to the usurious contract, or one who represents him as a privy in blood or estate. The asssgnees, who had taken merely the equity of redemption, could not have sustained this action. The plaintiff, therefore, as the original borrower, and a party to the mortgage, and personally bound for the payment of the debt, and with a subsisting interest in the mortgaged premises to protect and preserve, was the only person who could maintain an action to rescind the security for usury. In Butterfield agt. Macomber, 28 How., 151, Special Term, October, 1861, BOCKES, J., it was decided, that an assignee, under a general assignment for the benefit of creditors, |