(flnrn^U Ham B({^m\ Hibraty Cornell University Library KFN6010.A65A13 1918 V.1 Forms of i >leadina In actions for legal o 3 1924 022 783 561 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022783561 A compani on work to Abbott's Forms of Pleading. ABBOTT'S Practice and Forms SECOND EDITION THE PRINCIPLES AND FOBMS OF PRACTICE IN CIVIL ACTIONS, IN COURTS OF RECORD, UNDER THE CODES OF PROCEDURE. ADAPTED ALSO TO COMMON LAW AND EQUITY PRACTICE By Austin Abbott, LL.D. SECOND EDITION BY CARLOS C. ALDEN (Also author of the second edition of " Abbott's Forms of Pleading ") In two large Vols, of over :SSOO pages. Price $15.00, delivered. "Practice and Forms" were originally prepared by Mr. Abbott as part of a practical and comprehensive work on Practice, which was intended to also include the "Forms of Pleading." The two works, taken together, cover the entire scope of a civil action, from its inception through the last appeal. The Second Edition by Mr. Alden brings the work down to recent date with a continuance of all its former excellence. BAKER, VOORHIS & CO., 45 and 47 John Street, New York, N. Y. FORMS OF PLEADING ACTIONS FOR LEGAL OR EQUITABLE RELIEF PREPAHED WITH COPIOUS ANNOTATIONS, AND WITH ESPECIAL REFEKENCE TO THE CODES OF PROCEDURE OF THE VARIOUS STATES AND ADAPTED TO THE PRESENT PRACTICE IN MANY COMMON LAW STATES , BY AUSTIN ^BOTT, LL.D. COMPLETED FOB PUBLICATION APTEE HIS DECEASE BY CARLOS C. ALDEN, LL.M. OF THE NEW YORK BAR THEN PROFESSOR OF PLEADING IN THE LAW DEPARTMENT OP THE NEW YORK UNIVERSITY SECOND EDITION BY CARLOS C. ALDEN, J.D., LL.M. OF THE NEW YORK BAR, DEAN OF THE BUFFALO LAW SCHOOL, AUTHOR OF "handbook OF THE CODE OP CIVIL PROCEDURE," " ABBOTT'S PRACTICE AND FORMS," SECOND EDITION, ETC. VOLUME ONE NEW YORK BAKER, VOORHIS AND COMPANY 1918 /3^2Z<^. Entered, according to act of Congress, in the year one thousand eight hundred and ninety-eight, By LUCY ABBOTT MARTIN, In the office of the Librarian of Congress, at Washington. Entered, according to act of Congress, in the year one thousand nine hundred and eighteen, By LUCY ABBOTT MARTIN. In the office of the Librarian of Congress, at Washington. PREFACE TO SECOND EDITION As I stated in the preface to the second edition of Abbott's Practice & Forms, "No apology is necessary upon the ap- pearance of a second edition of a work on Practice when a period of twenty years has intervened since the prior edition; it is inevitable that dviring such period much will have been done by means of statute and decision to extend and modify the earUer practice." What was there said is peculi9,rly ap- plicable to forms of pleading. As an instance of intervening changes in statutory conditions alone, since the first edition of this work was issued the adoption in New York of the Consolidated Laws has rendered inaccurate practically every reference therein to the general statutes of the State. To the large number of forms which the first edition con- tained there have been added about half as many more, while the annotations have been brought down to date and greatly extended in character and scope. Great care has been taken in revising and improving the Index, so as to prevent the forms from becoming hidden in their own large aggregate. To the Index there has been added a Table of References to Code Sections and to New York Gen- eral Statutes, showing also the various forms presented thereunder; this table will also aid the practitioner in finding the form he seeks. The notes to the forms include many authorities which discuss and determine the substantive law applicable to the facts presented by the pleading; I believe the profession will find these authorities so selected and placed as to be of valuable assistance beyond the scope of the confines of pleading alone, and I urge that the usefulness of the Volumes in this respect, viz., of supplying generally supporting au- thorities on substantive law, be realized and made available. vi Preface to Second Edition The first edition of this work won the high favor of the profession; I venture the hope that this second edition may be found a worthy successor, and that the personal effort which has been made to improve upon and to extend the usefulness of the volumes to each practitioner may be found to have been to some degree successful. Carlos C. Alden. Buffalo, April, 1918. PREFACE TO FIRST EDITION These volumes are a final fulfillment of Mr. Abbott's promise to the legal profession, as made in his preface to the "New Practice & Forms," published in 1887. Mr. Abbott there announced: "It is, therefore, my purpose to treat the subject of pleading separately." His purpose was in part realized by the pubUcation in 1891 of his "Brief on Pleading," designed as a general treatise on the subject, to accompany the later volumes presenting the forms, and to reheve them of the necessity of including a burdensome amount of text. His labors on the material for the present volumes were continuous until the time of his death. In completing the volumes for publication, I have adhered to Mr. Abbott's plans as revealed to me during my asso- ciation with him in their preparation — a period of several years. We have sought to place in the hands of the active practitioner a collection of forms of pleading of recognized standing or sustained by actual adjudication, so compre- hensive in selection that he will find a precedent substan- tially "on all fours," whatever be his need. In most in-, stances, these precedents have been prepared for actual use and have been the subject of judicial scrutiny and decision, as well as the criticism of opposing counsel; in the collection of this material Mr. Abbott had unrivalled facilities. Each precedent has received careful consideration and revision by Mr. Abbott or by myself, in an endeavor to make it of the highest general utihty, and copious references have been made to sustaining authorities. In actual practice the pleader is apt to err on the side of caution and to indulge in prolixity of statement. The prec- edents here given could in many instances be shortened without rendering them actually insufiicient. But however vii viii Preface to First Edition desirable conciseness in pleading may be, it has been deemed preferable in the preparation of these forms to avoid such brevity as might perhaps invite question or require argument in their support. These volumes are not intended merely for local use. I believe they will be of value to the practitioner wherever the spirit of #[e "New Procedure" dominates the science of pleading. The design has been to furnish in each precedent that statement of the facts constituting the cause of action, or the defense, which is now requu-ed in nearly all of the States. Technical details of commencement and conclusion have been treated in a single chapter, with especial reference to Code practice; in these details, the local usage will be familiar to each practitioner. I desire to acknowledge my indebtedness to James Mac- Gregoe Smith, Esq., for able assistance rendered to me in the completion of the volumes. Carlos C. Alden. 32 Nassau St., New York, September, 1898. CONTENTS—VOLUME I CHAPTER I FORMAL PARTS OF PLEADINGS. FoEM No. I. Formal parts of the complaint. Page 1. Title; introduction; demand for judgment 2 2. The same, setting forth several causes of action 4 3. Incorporating allegations in another cause of action or defense, by reference 5 4. Incorporating document by annexing a copy to the pleading 6 5. Allegation of reason for joining a party as defendant instead of as co-plaintiff 7 II. Formal parts op an answer. 6. Common form, by a sole defendant 7 7. Commencement of answer by a defendant sued by a wrong name 8 8. The same, by an infant 8 9. The same, by one judicially determined incompetent 8 10. Title and commencement, by one defendant answering sepa- rately 9 11. Answer containing several defenses and counterclaims 9 12. Answer setting up partial defense - 11 13. By defendant asking relief against a co-defendant 12 III. Reply, and demurrer. 14. Reply setting up several defenses to several counterclaims 13 15. Reply served by direction of court 13 16. Demurrer to complaint 1-t IV. Amended and snE PLEMENT al pleadings . 17. Amended pleading 15 18. Supplemental pleading 15 V. General instructions with reference TegJBIBi^ (a) General principles of pleading in actions on contract 17 (b) Allegations common to many actions 19 ix X Contents — Volume I CHAPTER II DESIGNATION OF PARTICULAR CLASSES OP PERSONS, AND ALLEGATIONS SHOWING OFFICIAL CHARACTER OR CAPACITY TO SUE AND BE SUED, AND TITLE TO THE CAUSE OF ACTION. Form No. Page I. General instructions as to naming the parties '30 II. A party suing or sued on behalf of himself and others. 19. Commencement of complaint by one suing as representing also others of the same class 34 20. The same; another form 36 21. A defendant sued as a representative of a class 37 22. By a common informer 37 III. Assignees and others holding derivative title. 23. Allegation of assignment of specific claim or contract,, or property 38 24. Several assignees holding fractional claims 40 25. Where assignee sues to enforce collateral security 40 26. Assignment of a contract which was not assignable without con- sent 41 27. Allegation of assignment in those jurisdictions where writing or consideration must be alleged 41 28. The same, where action is brought in United States court on the ground of different citizenship 41 29. By assignee of foreign corporation 42 30. By equitable assignee, under accepted order for money to become due on a contract afterward performed 42 31. By assignee for benefit of creditors, suing as such 43 32. By substituted assignee for benefit of creditors 45 33. By assignee under State Insolvent Law 46 34. Allegation that plaintiff is a foreign oflficial assignee 47 35. By assignee, for money loaned, of salary or wages, against em- ployer 47 36. By plaintiff, the devisee 48 37. By plaintiff, the heir at law 48 38. By plaintiff, the legatee or next of kin 48 IV. Associations (unincorporated). 39. Allegation|ap^ action brought by a voluntary association in name of offic|^rj^ 49 40. The s^^Hgainst an association in name of officer 51 ;ation|M|p : fi^Kin s^^^Kaii V. Bankers (individual). 41. By or against an individual banker doing business under name of a bank 52 Contents — Volume I xi Form No. • VI. Corporations. Page 42. By or against a corporation at common law 53 43. General allegation of corporate capacity in States having statutory requirements 54 44. By or against a domestic corporation under New York statute. ... 54 •* 45. The same, by or against a foreign corporation 55 46. By foreign corporation plaintiff, allegation of authority to sue in New York State 56 47. The same; another form 59 48. Against consolidated corporation 59 49. Against reorganized corporation 59 50. Against corporation whose name has been changed by statute. ... 60 51. The same, change by court order 61 52. Allegation of objects of corporation, to show corporate power. 61 53. Allegation of grant of special corporate powers 62 54. By or against a county in the State of New York 63 55. By or against a New York city, town or village 63 56. By or against a board, or other body, made a corporation by statute 63 57. By a public body given the right by statute to sue 64 58. Against municipal corporation where statute requires previous notice and demand 64 ^ 59. The same; excuse for not presenting within statutory period .... 65 VII. EXECOTORS AND ADMINISTRATORS. 60. By executor or administrator where he sues in his own right 66 61. Plaintiff suing as administrator 67 62. Plaintiff suing under Umited letters 69 63. Defendant sued as administrator 69 64. Plaintiff suing or sued as executor 72 65. Against a person individually and as representative 73 66. Allegations of revivor and continuance of action by representatives 73 67. Allegation of probate of will and granting of letters by special of- ficer acting in absence of surrogate 74 68. Defendant, an administrator with the will annexed 75 ,69. Plaintiff suing as administrator de bonis non 75 70. Allegation of co-executor's refusal to join 76 71. Plaintiff suing as ancillary executor 76 72. Plaintiff suing as ancillary administrator.' 77 73. Allegation of appointment as adihinistrator by foreign court 78 74. Against an executor de son tort 78 VIII. Husband and wife. 75. Husband and wife as plaintiffs 79 76. Against husband and wife, on debt of wife contracted" before mar- riage, where the husband has by ante-nuptial agreement acquired separate property of the wife 80 xii Contents — Volume I Form No. Page 77. The same, where the husband after marriage has acquired property which before marriage was the property of the wife. ; 80 78. The same, where the husband has acquired that which became the wife's separate property after marriage 81 IX. Infants. 79. By infant plaintiff, showing appointment of guardian ad litem 81 80. The same, a shorter form 83 81. Plaintiff suing as general guardian 83 X. JURISDICTIONAI, ALLEGATIONS IN CASE OF CITIZENS, ALIENS, ETC. 82. Allegation in action between citizens or corporations of different States, on a common-law cause of action in a United States court 83 83. The same, in an equity suit in United States court 84 84. The same, by alien against citizen on a common-law cause of action in a United States court 85 85. The same, by alien against citizen in United States court in equity suit 86 86. Allegation of residence of defendant when necessary to give jurisdic- tion to court of limited jurisdiction 86 XI. Lunatics (incompetent persons). 87. By committee of an incompetent (lunatic, idiot or habitual drunkard) under the New York statute 87 88. Against such committee 89 89. Appointment of committee of life convict 90 XII. Married women. 90. Marriage and separate estate of plaintiff 90 91. The same, in an action other than upon a contract for the payment of money only 91 92. Action in equity to charge separate estate of married woman 93 93. Action at law against married woman upon her contract made for the benefit of her separate estate, or expressly charging the same .... 94 XIII. Partners. 94. By or against partners 95 95. By or against a surviving partner 96 96. Against representative of deceased partner 98 97. Allegation of successor firm, acquiring assets of prior firm 98 98. Allegation that defendant partner has succeeded to assets and as- sumed debts 98 XIV. Principal and agent. 99. By or against undisclosed principal 99 100. By agent, as trustee of an express trust 99 101. Against agents on their assumption of personal hability 100 Contents — Volume I xiii Form No. XV. Public officers. Page 102. By or against a single officer in his official capacity 100 103. By attorney-general on the relation of a person having an interest in the question 102 XVI. Receivers. 104. By receiver appointed pending litigation 102 105. By receiver of a corporation appointed in a judgment creditor's ac- tion for the sequestration of corporate property 10.3 106. By temporary receiver of a corporation appointed pending proceed- ings for its voluntary dissolution 105 107. By receiver appointed in supplementary proceedings 105 108. By successor or substituted receiver 107 109. Against receiver in bankruptcy 107 110. By foreign receiver of foreign corporation seeking to reduce to posses- sion the assets of the corporation in this State 108 111. By ancillary receiver of foreign corporation 109 XVII. Stockholders. 112. Allegation in action in State court, brought by stockholder suing in the interest of the corporation because the directors will not sue 109 112a. The same, in United States court 112 XVIII. Trustees. 113. By testamentary trustee 112 114. By successor or substituted trustee 113 115. By trustee in bankruptcy 113 CHAPTER III COMPLAINTS IN ACTIONS FOB MONEY LENT, MONEY PAID AND MONEY HAD AND RECEIVED I. Money lent. 116. Lender against borrower . 118 117. The same, on an account 120 118. The same, where note was given 122 119. The same, with charge that defendant fraudulently induced loan. . 122 120. The same, where chattel mortgage was given, and deficiency remains after enforcement 123 121. By pledgee of stoek for excess of loan over price realized on sale. 124 II. Money paid. 122. By one who has paid money to a third person at defendant's re- quest 124 123. By maker of accommodation note, having paid it 126 xiv Contents — Volume I Form No. Page 124. By accommodation acceptor, against drawer 127 ,125. By one having paid a raised check 127 126. By indorser of note, having paid a part 128 127. By a municipal corporation to recover the amount of a judgment against it founded upon an injury caused by the willful act or neg- ligence of defendant 129 128. By stockbroker for money advanced on account of his principal in the purchase of stocks 131 129. The same, on "short" sales 131 130. By brokers for advances under numerous transactions 132 131. By broker who has submitted a disputed transaction to arbitral ment under rules of his exchange, and paid the award, against his principal 133 132. By landloi-d, having paid tax, water rate or assessment, which tenant had agreed to pay 135 133. By surety against principal, on lease 136 134. The same, for money paid on undertaking 137 135. The same, after payment of debt by surety 138 136. By surety against co-surety; action at law for contribution 139 137. By one of two joint makers or indorsers of a note, having paid it, against the other for contribution 140 138. Against grantee assuming to pay, to recover deficiency judgment paid by plaintiff, a prior grantee under similar covenant 141 139. Bill in equity by trustee of corporation having paid a judgment for failure to file annual report against co-trustee forcontribution . 143 140. By tax collector to recover of property owner the amount of tax which as collector he had been compelled to pay 146 141. For repairs made upon party wall 147 142. By wife against husband, after pajrment by her of her own and their children's support 148 III. Monet received. 143. General common-law form for money received 149 144. General form for use in New York and other code states 150 iJL45. Against agent for money received from plaintiff 151 146. Against agent, for money collected. 151 147. The same, by assignee, with more specific statement 152 148. Against agent for profits made from sale of competing line of goods . 153 149. Against broker, for proceeds of note discounted 154 150. Against factor for price received by him for goods sold 154 151. By consignor against bank for proceeds of sale of goods deposited by factor 156 152. Against attorney at law, for money collected 157 153. The same, to recover money placed with attorney for investment. . 157 154. To recover balance of bank deposit made by plaintiff 158 155. The same, and accruing interest where deposit was at interest on monthly balance , , . 159 Contents — Volume I xv FosM No. Page 156. By executor or administrator against savings bank for deposit made by decedent , . . . 160 157. Under the statute to recover back a wager 161 158. For money lost at play 162 159. By employer to recover his money lost by clerk at gambling 163 160. To recover excess over legal rate of interest under the statute. . : . . . 164 161. For money paid under contract void under statute of frauds 165 162. For money paid to defendant under duress 166 163. By infant to recover money paid under executory contract 167 164. By infant to recover money invested in a co-partnership 168 165. To recover money paid to defendant by an incompetent person .... 169 166. By or against corporation, for money paid under tdtra vires contract. 170 167. By tenant to recover amount deposited upon obtaining lease 171 168. For repayment of purchase price of article, conditioned on the same proving satisfactory 172 169. For prepayment for goods, which were not delivered 172 170. For advances on a contract for services, unfulfilled 173 171. For 'repayment of earnest money on a contract for the purchase of real estate; failure of vendor to tender deed 174 172. The same, where deed was rejected on ground of defective title. . 177 173. The same, with allegation of fraud in inducing plaintiff to make contract 178 174. Against one to whom plaintiff conveys his real property under an agreement to sell and pay proceeds to plaintiff 179 175. To recover money paid under void assessment, where assessment has been vacated 180 176. The same, where the assessment was regular on its face 183 177. T© recover from municipality amount paid for tax certificates, which were invalid because of defect in the assessment 185 178. To recover money involuntarily paid, in satisfaction of taxes levied on personal property 186 179. By pledgor of collateral, against the pledgee, to recover excess re- ceived over the amount of the debt 188 180. The same, by assignees of a debtor, against his pledgees of a mort- gage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the pledgees; — to recover its excess over the amount of the notes, and to have the notes delivered up 189 181. To recover fees collected by public officer not paid over according to statutory direction 191 182. To recover fees of usurped public office 192 183. Against one who receives funds with knowledge or notice of mis- appropriation 192 184. The same, money received under circumstances putting defendant on inquiry 193 185. To recover partnership funds applied by a partner to discharge his private debt 194 xvi Contents — Volume I Form No. Page 186. By trustee in bankruptcy, to recover preferential payment 195 187. To recover money paid under mutual mistake of fact; taxes erro- neously assessed 196 188. To recover money overpaid by mistake; bank against depositor. . . 197 189. The same, erroneous account rendered to plaintiff and paid 198 190. The same, on a sale of goods 199 191. To recover moneys deposited under irrevocable trust for plaintiff, but withdrawn by donor 199 192. To recover insurance monies collected by defendant 200 193. The same, defendant a factor 201 194. Against one who has received plaintiff's share of proceeds of security on their joint property 202 195. Against executor, for money received by decedent 203 196. For repayment of a judgment paid and afterwards reversed 204 197. For restitution; by junior attaching creditors, after reversal of order vacating prior attachments under which sheriff had paid over moneys to junior attaching creditors 205 . 198. To recover amount paid on contract which plaintiff has elected to rescind on the ground of fraud 207 199. The same, after rescission because of defendant's breach 208 200. Against one who has wrongfully disposed of plaintiff's property, plaintiff waiving the tort 209 201. For money paid by plaintiff to defendant upon defendant's false representations 210 202. To recover moneys paid to defendant on fictitious transactions. . . 210 203. Allegation of the character of a "bucket-shop" transaction 211 CHAPTER IV. COMPLAINTS IN ACTIONS FOR USE AND OCCUPATION. 204. General form 213 205. The same, at an agreed value 215 206. By joint tenant or tenant in common against co-tenant 215 207. For lodgings 216 CHAPTER V. COMPLAINT IN ACTION FOR THE HIRE OF PERSONAL PROPERTY. 20S Common form , 217 Contents — Volume I xvii CHAPTER VI. COMPLAINTS IN ACTIONS FOR GOODS SOLD AND DELIVERED. Form No. Page 209. Goods sold and delivered; where the price was agreed upon 219 210. The same, where the price was not agreed upon 221 211. The same, alleging the contract ' 222 212. The same, alleging a balance due 223 213. The same, short form, upon an account 223 214. The same, defendant either to pay for or return goods 224 214a. Where amount and character of goods were to be determined by in- spection under rules of association 225 2X5. For price after dehvery upon trial 226 216. The same, where defendant refuses to accept delivery 226 217. The same, where payment was to be made by means other than pay- ■ ment of money 227 218. The same, alleging the contract, and acceptance of partial perform- ance 2?7 219. For price to be paid in installments; sale of stock and fixtures of store, and good will 228 220. Sale to defendant and delivery to third person 228 221. Sale and delivery; anticipating and avoiding defense of payment. . . 229 222. The same, anticipating and avoiding defense of unexpired credit. . . 231 223. Implied sale on waiver of tort; against one wrongfully appropriating plaintiff's chattels 233 224. On implied contract of sale; arising out of defendant's refusal to per- form 233 225. For price of goods, with allegation of fraud in inducing sale 234 226. For necessaries furnished to defendant's wife or infant children .... 235 227. Against husband, for necessaries supplied to wife who is living apart from him 236 228. Against wife who has personally charged herself for necessaries pur- chased. . . > 238 229. Against husband and wife for goods sold for her separate estate. . . . 238 230. Against an infant, for necessaries supplied 240 231. Against one who has become liable by novation 241 CHAPTER VII. COMPLAINTS IN ACTIONS FOR WORK, LABOR AND SERVICES (and MATERIALS INCIDENTALLY FURNISHED. 232. General form 244 233. The same, pleading a written contract 247 234. The same, as upon an account 248 xviii Contents — Volume I Form No. Page 235. On a special contract, completely fulfilled by plaintiff 248 236. The same, where the contract was fulfilled by an assignee 250 237. For value of services rendered under circumstances which raise an implied promise of payment 250 238. To recover value of services rendered under express agreement void under the statute of frauds 251 239. For work, and materials incidentally furnished 252 240. The same, as upon an account 253 241. For an installment of wages or salary 253 242. For extra work done in course of an employment 254 243. For overtime services; rendered under terms of contract made be- tween defendant and labor union 254 244. For services rendered to third person at defendant's request 255 245. Where agreement to compensate by will has been broken 256 246. The same, another form, with more specific allegations, and partial provision made by will 256 247. For wages, where plaintiff was prevented from performing 257 248. By employee, prevented by illness from completing agreement of service " 258 249. For part performance of contract, where full performance was pre- vented by defendant 259 250. Breach of agreement to pay for services in specific property 260 251. Where services were to be paid for, partly in cash and partly in profits 261 252. For services rendered in effecting a sale of property 261 253. For services as salesman, under agreement to pay commission on sales .' 262 254. By salesman, to recover amount of drawing account 263 255. For commissions of stockbroker 264 256. By real estate broker, for commissions on sale; sale consummated, or plaintiff's customer accepted 264 257. The same, where sale has not been consummated 265 258. The same, for procuring mortgage loan 266 259. The same, where loan was not made 267 260. The same, for commissions on exchange of property 268 261. The same, where defendant prevented plaintiff completing, by nego- tiating directly with plaintiff's customer 268 262. The same, under agreement for compensation dependent on price secured 269 263. As factor 270 264. For insurance brokerage and for premiums paid by plaintiff 270 265. By an artist, for painting portrait 270 266. For editing a newspaper 271 267. The same, for editing or compiling a book 271 268. By proprietors of a newspaper or periodical, for advertising 271 269. By advertising agent, for services and disbursements 272 270. By an architect 273 271. By an attorney 273 Contents—Volume I xix Form No. Page 271a. The same, balance due on numerous matters 275 272. The same, where'cHent refuses to prosecute action, after retainer,. . 275 273. The same, more detailed allegations of services, imder retainer and modified retainer 276 274. The same, for services as referee 277 275. By a physician 278 276. By an undertaker 279 276a. By underta.ker; against husband, for funeral expenses of wife or minor child 279 276b. The same, against personal representatives of decedent 280 277. By an auctioneer 281 278. By a dentist 281 279. By master plumber, for work done in a city 282 280. By private detective 282 281. For services rendered under contract for rescuing vessel from peril of sea 282 282. For procuring and imparting information 283 283. Against corporation, for services as an oflScer 284 284. For tuition and books, to defendant's minor son, at boarding school 285 285. For board and lodging 286 286. For stabling and care of horses 286 287. For freight, against consignor 286 288. For freight, against consignee 287 289. For cold storage 287 290. By a parent, for services of a minor child 288 291. By married woman, for services 289 292. By husband, for services rendered by wife 289 293. For services rendered to defendant's child 289 294. On building contract fullyperformed;contract not specifically pleaded 290 295. The same, another form, contract specifically pleaded, with claim for extra work 291 296. The same, contract fully performed, except as modified, with claim for extra work 292 297. Allegation of facts showing an excuse for non-performance 295 298. The same, another allegation of facts showing excuse 296 299. Allegation of full performance, except that architect's certificate was unreasonably refused 296 300. Allegation of waiver of condition 297 301. The same, another form; allegation of express waiver of a stipulation in the nature of a condition precedent 297 302. Allegation of substantial performance 298 303. For extra work and materials furnished, in connection with a build- ing contract 299 304. Independent collateral agreement, omitted from written agreement 300 XX Contents — Volume I CHAPTER VIII. COMPLAINTS IN ACTIONS FOUNDED UPON EXPRESS PROMISES TO PAY MONEY UPON VARIOUS CONSIDERATIONS. Form No. - Page 305. To recover a reward 301 306. To recover liquidated damages 302 307. Upon withdrawal of an action 304 308. The same, for withdrawing opposition to the probate of a will 305 309. Upon agreement to forbear to sue 306 310. Upon promise made to thii-d person to pay his indebtedness to plain- tiff. .. . 307 311. Upon a promise made to a third person, to pay money to the plaintiff 307 312. On a promise-to pay for the surrender of a lease 308 313. For the unpaid consideration-money of a conveyance 309 314. For part of the consideration for a general release theretofore de- livered 309 315. On an express promise, in consideration of a precedent debt 310 316. On a debt barred by the Statute of Limitations, or a discharge in Bankruptcy, and revived by a new promise 310 317. On a debt released through a voluntary composition with creditors, but with express reservation of moral obligation to pay 312 318. On a royalty agreement '. 314 319. On promise to pay share of net profits, for assignment of patent . . . 315 320. Complaint on stipulation to refund money deposited to stay execu- tion ". 316 321. Upon a promise to pay drafts for expenses drawn by plaintiff while an employee 319 322. On agreement to pay in consideration of plaintiff's not competing in business .320 323. Upon ante-nuptial settlement 321 324. By wife against husband upon agreement for support after separa- tion 322 325. The same, after husband's death 323 326. Against putative father, upon agreement for support of child 324 CHAPTER IX. COMPLAINTS IN ACTIONS ON PROMISSORY NOTES. I. Non-negotiable pbomissoey notes. 327. General form; pleading by copy 328 328. The same, pleading by legal effect 329 329. The same, another form, "the instrument showing a consideration .... 330 330. Another form, the instrument containing also a stipulation 330 Contents — Volume I xxi II. Negotiable promissory notes; by payee against maker. Form No. Page 331. On note in ordinary form; pleading the legal effect thereof 331 332. The same, under statute permitting the setting forth of a copy of the note , * 334 333. On note payable on demand 335 334. On a renewal note 336 335. On a note signed by an agent 336 336. On partnership note 337 337. By plaintiffs as partners, on a note payable to the order of the firm . . . 338 338. By a surviving partner, on a note payable to the order of his late firm 339 339. By payee against the surviving member of the firm making the note 340 340. By payee, against representatives of deceased partner, or joint maker 341 341. On note made by one continuing use of firm name 341 342. Against executor or administrator of deceased maker 341 343. By executor or administrator of deceased payee 342 344. By a corporation against a corporation 343 345. On two notes, one being partly paid 344 346. On several notes given upon an agreement to pay all upon a default in any 345 347. On a note for a voluntary subscription payable on condition of other subscriptions to a certain amount being secured 346 348. On a note payable at a specified time after sight 346 349. By an unincorporated association on a note payable to a former treasurer 347 350. On a note wrongly dated 347 351. On lost negotiable instrument 348 III. Indorsee against maker. 352. By first indorsee; ordinary form, pleading the legal effect 348 353. The same, pleading by copy 349 354. Remote indorsee or assignee against maker 350 355. On a note payable to bearer, or to cash, or to a fictitious person's order, or to maker's own order 352 IV. Indorsee against indorsee. 356. First indorsee against payee, indorser; pleading legal effect 352 357. The same, pleading by copy 356 358. Same against same; on demand note ' 356 359. The same; approved form in common-law State 357 360. Remote indorsee against the payee, indorser 358 361. Remote indorsee against all prior indorsers 358 362. By an indorsee, who has paid note in hands of subsequent holder, against a prior indorser 359 363. Averment of excuse for non-presentment; where the maker could not be found 359 364. The same, death of maker or the one primarily liable 360 xxii Contents — Volume I Form No. Page 365. The same, where the indorser has before maturity, waived present- ment, demand and notice 360 366. The same, waiver by indorser's request for delay 360 367. The same, alleging facts from which an implied waiver would arise . . 361 368. The same, where waiver was made after maturity 361 369. On a note which may not be valid as against the maker and avoiding that issue 362 370. Against indorser who indorses after maturity 363 V. Inoorsee against maker and indorser. 371. First indorsee against maker, and payee, indorser 363 372. Remote indorsee against maker, first indorser, and a later indorser 364 VI. AGAIN.ST indorser BEFORE DELIVERY. 373. Payee against indorser before delivery 364 374. The same, under law merchant; payee having parted with value on the faith of the indorsement 365 375. Against maker and irregular indorser of non-negotiable note 366 376. The same, shorter form, the maker a corporation 368 377. The same, on a non-negotiable note, sustained in South Carolina 369 VII. By transferees of negotiable paper, not claiming by INDORSE- MENT. 378. By a transferee of a note, against maker 370 379. On note assigned as collateral security without indorsement but with an agreement to indorse; by transferee against maker and transferror 370 380. On a bank note 371 CHAPTER X. COMPLAINTS IN ACTIONS ON BILLS OF EXCHANGE. I. Payee against acceptor. 381. General form; setting out a copy of the bill 374 382. The same, pleading the legal effect 375 383. On an acceptance, varying as to time from the bill 376 384. Against acceptor for honor 377 385. On a bill directed by the drawer to himself and accepted by him . . 378 386. By assignee of a bill payable out of a particular fund 378 387. On unconditional promise in writing to accept bill of exchange 379 II. Payee against drawer. 388. On a bill payable at a certain time after date or sight, for non- acceptance 380 389. On the same; another form, setting out a copy of the bill 381 Contents — Volume I Mtiii FoBM No. Page 390. On sight draft against a corporation drawer 382 391. On a bill payable on a day certain, or at sight, or at a certain time after date, — for non-payment 383 392. On the same, non-presentment for acceptance excused, the drawer having countermanded the bill 383 393. On the same, non-presentment for acceptance excused, because the drawer could not be found 384 394. On the same, demand and notice excused by waiver 384 III. Payee against drawer, and drawee or other acceptor. 395. On a bill accepted by the drawee 384 396. Against drawer and one who has accepted the bill for honor 385 IV. By indorsee. 397. Indorsee against drawer who is also indorser, for non-acceptance . . 386 398. Indorsee against drawer, indorser, for non-pa3Tnent 387 399. Remote indorsee against acceptor 388 400. By the same, on foreign bill in foreign language 388 401. Indorsee against acceptor who afterwards absconds 389 402.' Against drawer and indorser, — for non-acceptance 390 403. Against drawer; indorser before acceptance; and acceptor, for non- payment 391 404. Against drawer, acceptor, and indorser after acceptance, — for non- payment 392 V. Drawer against acceptor. 405. On a bill returned to, and taken up by the drawer 393 406. Against acceptor on a bill payable to the drawer's own order, and not negotiated 394 VI. Against irregular indorser. 407. By payee, or indorsee 395 408. By drawef ; on ar bill payable to drawer's own order 396 CHAPTER XI. COMPLAINTS UPON CHECKS, CERTIFICATES OF DEPOSIT AND LETTERS OF CREDIT. I. Against drawer of check. 409. Payee against drawer; pleading by legal effect 397 410. The same, pleading by copy 399 411. Indorsee, or bearer, against drawer ; 399 412. The same, another form for use in common-law States 400 413. Omission to give notice of non-payment excused because the drawer had no funds *00 xxiv Contents — Volume I Form No. . Page 414. Non-presentment excused because of insolvency of the drawee 401 415. Indorsee against drawer, where payment was stopped by drawer 401 II. Against drawer and indobser of check. 416. Indorsee, or bearer, against drawer and indorser 401 III. Against drawee. 417. For amount of check which bank refused to pay 402 418. Against the bank, drawee, for refusal to pay check drawn by plain- tiff's agent against a deposit made by the agent in his own name under instructions from plaintiff 40.3 419. Against the bank, drawee, by depositor, for damages for refusal to pay check 404 420. Against the bank, drawee, having certified 406 IV. Certificates of deposit. 421. Complaint on certificate of deposit 406 421a. The same, by survivor of joint payee, on certificate obtained with intent to create right of survivorship 407 V. Letters of credit. 422. On letter of credit, available by draft 409 CHAPTER XII. COMPLAINTS IN ACTIONS UPON ACCOUNTS. 423. Upon an account 412 424. On an account stated .... 413 425. The same, another form . . , 414 426. The same, when account has become stated by operation of law. . . . 414 427. Between former partners to recover a balance due 415 428. Between existing partners; to recover share of profits 416 CHAPTER XIII. COMPLAINTS IN ACTIONS ON ARBITRATION AWARDS, ETC. 429. On the award of arbitrators 417 430. On an award of an umpire 419 431. Allegation of an enlargement of the time 420 432. For revoking arbitration submission 421 433. On an award in condemnation proceedings 421 Contents — Volume I xxv CHAPTER XIV. COMPLAINTS IN ACTIONS UPON BONDS. Form No. I. On bonds for payment of money only. Page 434. Common form, on the penal sum 423 435. Another form, on the sum named in the condition 424 436. Another form, pleading it according to its legal effect 424 437. Another form, pleading by copy 425 438. Against mortgagor, after foreclosure of mortgage 425 439. On a negotiable bond 426 440. Another form, upon a railroad bond requiring certification by trustee 427 441. On a municipal bond issued in aid of railroad 428 442. On coupon 432 443: On coupon of bond issued by town in aid of a railroad 433 II. On bonds other than for payment of money. 444. Common form, setting forth copy 436 445. Another form, where condition is contained in an instrument which cannot conveniently be set forth 436 446. On a bond for rent, against principal and sureties 436 447. On a bond for the fidelity of an employee 438 448. On a bond for the faithful accounting of an agent 439 449. On bond given to secure stay of proceedings imder a stipulation; for reformation of a mistake in it, and for judgment upon it as re- formed 441 III. Arbitration bonds. 450. For refusal to comply with award .'.... 443 451. For revoking the arbitrator's powers 444 CHAPTER XV. COMPLAINTS IN ACTIONS UPON OFFICIAL BONDS AND UNDERTAKINGS. I. Official bonds. 452. On a bond in the surrogate's court; after accounting had 447 453. The same, where prior accounting is impossible or impracticable 449 454. By successor, against one surety (the other having been released) on the bond of an executor, whose letters have been revoked 451 455. Against original surety, after substitution of new bond or under- taking, under N. Y. Code Civ. Pro., § 812 457 456. By successor, against sureties on bond of deceased representative or guardian , , 457 xxvi Contents — Volume I Form No. Page 457. On bond of trustee in bankruptcy 458 458. On receiver's bond; by his successor 459 459. By trustee in bankruptcy, against surety on bond of general assignee 462 460. Assignment of breach of the bond of a county treasurer in action by county , 464 461. Assignment of breach in a sheriff's bQnd,-forjieglect to levy 464 462. The same, for neglect to sell after levy 465 463. The same, for neglect to return 466 464. Allegation of judgment for damages and costs against the sheriff 466 465. By later or second surety against prior surety on default of princi- pal during term of earUer bond 466 II. Undehtakings. 466. Short form, where the undertaking recites the facts 470 467. For security for costs 471 468. On undertaking given to stay execution on appeal to appellate divi- sion, from money judgment 472 469. On undertaking for costs of appeal to Court of Appeals 473 470. The same, to also stay execution meantime 474 471. On undertaking on appeal from decree of surrogate 475 472. For costs and damages on obtaining an attachment 476 473. On an undertaking to discharge attachment 478 474. On undertaking to discharge vessel from attachment under N. Y. Lien Law 480 475. On an undertaking for costs and damages on obtaining order for an arrest 482 476. On undertaking for jail limits 484 477. On undertaking to procure discharge from arrest ' 485 478. On undertaking to indemnify sheriff for levy under execution 487 479. On undertaking in an action to^recover a chattel (replevin) 488 480. On an undertaking given in an action to recover a chattel, to secure the return of the property 490 481. On an undertaking given on obtaining an injunction 491 482. On a bail-bond given in criminal proceedings 493 483. On undertaking given to secure stay of proceedings 494 CHAPTER XVI. COMPLAINTS IN ACTIONS ON CHARTER PARTIES. 484. Shipowner against charterer, for freight 496 485. The same, annexing a copy 497 486. The same, against assignee of cargo 497 487. For not loading 498 Contents — Volume I jsxvii Form No. Page 488. For injuries to vessel caused by violation of agreement 498 489. For demurrage 499 490. The same, by railroad 500 491. For damages for unreasonable detention of vessel in unloading 502 492. Charterer against owner, for abandoning the voyage 503 CHAPTER XVII. COMPLAINTS IN ACTIONS ON GUARANTIES. 493. Against guarantor of payment of note 505 494. Against guarantor of payment of debt contemporaneously contracted 506 495. On a guaranty of payment of a precedent debt 509 496. The same, alleging the specific consideration for the guaranty 510 497. Against guarantor of bonds; principal sum due for default in interest payment 510 498. Against guarantor of payment of coupons on negotiable bonds 511 499. Against guarantor of the ultimate payment 513 500. Against guarantor of the collection of a debt 514 501. On guaranty of yearly dividend on stock 515 502. Against sureties for payment of rent 517 503. Against sureties upon building contract; owner's default in making pajonent 518 504. The same, contractor's default in performance 519 505. On an agreement to be answerable for the price of goods sold to a third person 520 506. Against guarantor of mortgage; to recover deficiency after foreclosure 521 507. Allegation of assignment of guaranty 523 508. On a guaranty of payment, by a transferee of the principal obligation 524 509. Against guarantor, or so-called irregular indorser (before delivery) of a non-negotiable note 525 CHAPTER XVIII. COMPLAINTS IN ACTIONS ON INSUKANCE POLICIES. I. On fire policies. 510. General form, on standard Jform of policy, by owner of insured property 527 511. The same, showing a renewal of policy 532 612. The same, where plaintiff purchased the property after the in- surance 532 513. On personal property removed during term 533 xxviii Contents — Volume I Form No. Page 514. Allegation in common-law form, of plaintiff's performance of con- ditions precedent 533 515. Allegations where an appraisal has been had 534 516. Allegation of waiver of condition precedent; proofs of loss 535 517. The same, waiver of proofs of loss, another form 535 518. The same, waiver of method of preparing proofs of loss 535 519. Allegation of mortgagee clause, and assignment by nftrtgagee to mortgagor of interest under policy 536 520. Complaint by mortgagor and mortgagee under policy containing standard mortgagee clause 536 ' 521. Complaint on "binding slip" 538 522. On agreement to insure, policy never having been delivered 539 523. On policy of re-insurance : 542 524. On policy of co-operative fire insurance company 544 525. To set aside award of appraisers, and recover actual damage 515 526. Against attorneys in fact on Lloyds policy 547 527. Against underwriter, on Lloyds policy 549 11. On life insurance policies. 528. By personal representative 552 529. By wife, partner, or creditor, insured 554 530. By the assignee of the insured 556 531. Allegation of change of beneficiary 556 532. To compel re-instatement of policy 557 533. On extended insurance 558 534. To compel issuance of paid-up policy 559 535. To recover cash surrender value of policy 560 536. By equitable assignee, one advancing money to pay premiums 561 537. On assessment policy 563 538. Under assessment policy, to enjoin the collection of excessive assess- ments 564 539. On membership certificate in fraternal benefit order ....'. 566 540. By personal representative, to reach insurance payable to widow, purchased by premiums in excess of amount allowed by statute 567 III. On accident and disability insurance policies. 541. On accident policy 569 542. To recover sick or death benefits 571 543. On disability policy 573 IV. Marine policies. 544. On a valued poUcy, on ship or cargo 574 545. The same, on an open policy 576 546. Upon freight 577 547. Averment of loss by collision 578 548. Averment of waiver of a condition 578 Contents — Volume I xxix Form No. Page 549. For a partial loss and contribution to general average, for goods thrown overboard 578 550. The same, where the damage was to the vessel 579 V. Miscellaneous policies of insurance. 651. On indemnity insurance 579 552. For fidelity of employees 582 553. On credit guaranty insurance 583 554. On insurance against burglary . 585 555. On title insurance policy 586 CHAPTER XIX. COMPLAINTS IN ACTIONS FOR RENT. 556. Lessor against lessee 588 557. The same, setting fortli copy 589 558. By lessor against lessee holding over 590 559. Lessor against assignee of lessee 591 560. Lessor against the executors of the lessee 592 561. Grantee of lessor, against lessee 593 662. Assignee of rent against lessee 594 663. Heir or devisee of reversioner against lessee 59 + 564. Assignee of the devisee of the reversion and rent, against an as- signee of part of the premises . . . .■ 595 565. Against tenant who enters under void lease 596 CHAPTER XX. COMPLAINTS ON NON-NEGOTIABLE NOTES, AND ORDERS. 666. On a note payable in case the proceeds of the maker'.s business exceed a certain sum 598 567. On a note payable in chattels 599 568. Complaint on an accepted order for payment of money on condition 600 XXX Contents — Volume I CHAPTER XXI. COMPLAINTS ON STOCK SUBSCRIPTIONS. Form No. Page 669. Subscription to corporation's stock, made in its certificate of incor- poration 602 570. The same, made by agreement prior to incorporation 603 671. The same, by subscription subsequent to incorporation 606 572. On a subscription to the expenses of a pubUc enterprise 607 CHAPTER XXII. COMPLAINTS IN ACTIONS ON JUDGMENTS. 573. On judgment of foreign or domestic court of general jurisdiction . . . 610 574. The same, a shorter form 611 576. The same, another form, sustained in Massachusetts 611 576. The same, another form, pleading an order enforcible as a judgment 612 577. On judgment of domestic or foreign tribunal of special or limited jurisdiction; short form under N. Y. Code Civ. Pro., § 532 613 678. Another form, alleging the jurisdictional facts 614 679. On a domestic judgment of court of record, and between original parties; by leave of court 615 580. The same; after expiration of ten years : 616 681. Allegation of the effect of foreign judgment 616 582. Complaint by assignee on judgment of U. S. District Court removed from state to federal court 617 583. To recover unpaid alimonyj allowed in foreign judgment of divorce . . 618 CHAPTER XXIII. COMPLAINTS IN ACTIONS FOR BREACH OP COVENANT. I. Grantor and grantee. 584. On covenant against incumbrances on real property 622 685. The same, where the conveyance excepted a special incumbrance. . 625 586. On a covenant for quiet enjoyment 625 587. On covenant of seizin, and right to convey 627 588. On a covenant of warranty, for failure of title 628 589. The same, for partial failure; deficiency in quantity 630 590. The same, by remote grantee of covenantee 631 591. The same, allegation of plaintiff's capacity as heir at law of covenantee , 631 Contents — Volume I xxxi Form No. Page 592. The same, allegation of plaintiff's capacity as devisee of covenantee 632 593. On a grantee's covenant to build 632 594. On a covenant against nuisances; the covenant being in a deed executed only by the grantor 633 595. On a continuing covenant to maintain a fence 634 596. To enjoin breach of covenant restricting use of premises 635 II. Landlord and tenant. 597. Against tenant; for breach of express covenant to keep premises in repair 637 598. Against tenant; on covenant to execute all orders of the board of health 639 599. Against tenant; for breach of covenant to insure 640 600. Against tenant; for breach of covenant to pay taxes 641 601. Against tenant; for breach of covenant to surrender possession 642 602. Against tenant; violation of restrictive covenant upon use of prem- ises, with special damages 642 603. Against tenant; to enjoin subletting without lessor's consent in vio- lation of covenant not to sublet 644 604. Against tenant; for deficiency under covenant permitting re-entry upon default, and re-letting for tenant's benefit 648 605. Against landlord; for refusal to give possession 649 606. Against landlord; for breach of covenant to keep premises in repair 650 607. Against landlord; for breach of covenant for quiet enjoyment 651 608. Against landlord; for breach of agreement to complete demised premises 652 609. Against landlord; for breach of covenant to renew lease, or pay for buildings erected by tenant 654 CHAPTER XXIV. COMPLAINTS IN ACTIONS FOR BREACH OF CONTRACT OP EM- PLOYMENT. 610. By an employee, wrongfully discharged 655 611. The same, where employer does not permit employee to begin service 659 612. The same, by employee holding over for a renewal term after original term of hiring had expired 659 613. Action for employer's dismissal of agent in violation of contract to pay salary and commissions 660 614. By proprietors of newspaper or periodical, when advertising contract has been cancelled 662 615. Against employee for leaving service before expiration of contract period 662 616. Complaint against engineer for breach of contract to run engine and furnish power, and damage for negligent use 663 xxxii Contents — Volume I Form No. Page 617. By apprentice against master 667 618. By the master against the father of apprentice 667 619. For breach of contract to manufacture goods 668 620. The same, on a promise to manufacture out of plaintiff's materials . . 669 621. For goods made at defendant's request and not accepted 670 622. Against agent for breach of instructions in selling for less price 67 1 623. Against stockbroker for failure to fill plaintiff's orders 672 624. The same, for violations of instructions 673 625. Against printer for not fulfilling agreement to print, and for negli- gent injury to the stereotype plates 673 626. Against a builder for not completing his work, with special damage by loss of rent : 674 627. Againstthe same, for not properly finishing a building 676 628. By sub-contractor, for damages caused by principal's failure to ful- fill his agreement to complete to a certain point at a specified date 676 CHAPTER XXV. COMPLAINTS IN ACTIONS ON CONTRACTS OF INDEMNITY. 629. Surety against principal, on a promise to indemnify him against damages as surety 678 630. On agreement to indemnify against loss 680 631. Agent against principal on agreement to save him harmless. 681 632. Sub-tenant against his immediate lessor on express agreement 681 633. The same, on an implied contract 682 634. By retiring partner, on the remaining partners' promise to indem- nify him against damage 683 635. The same, against sureties on partner's bond to indemnify against liability 684 636. Upon defendant's promise' to indemnify plaintiff, if he would def^d an action brought against him for money which the defendant claimed ggg 637. Against contractor who expressly agrees to indemnify against results of his negligence , • 688 CHAPTER XXVI. COMPLAINTS IN ACTIONS ON PROMISE TO MARRY. 638. For refusal ggO 639. Marriage with another _ . _ 692 Contents — Volume I xxxiii CHAPTER XXVII. COMPLAINTS IN ACTIONS FOR DAMAGES FOR BREACH OP CON- TRACT FOR SALE OF PERSONAL PROPERTY. Form No. I. Buyer against Seller. Page 640. General form; against seller, for not delivering 694 641. The same, for delay in delivering 697 641a. The same, where seller ofifers to deliver goods not conforming with agreement 697 642. The same, allegation of defendant's delivery but plaintiff's subse- quent refusal to accept 699 643. The same, for failure to deliver part 699 644. The same, under an agreement to deliver in installments 699 645. The same, under option accepted by plaintiff 700 646. The same, allegation of refusal to permit inspection 700 647. The same, alleging part payment when agreement was not in writing 701 648. Allegation of special damage for loss of profits under a sub- contact 702 649. Allegation of special damages because the goods cannot be ob- tained in market 703 650. Allegation of special damage; loss caused by inability to continue manufacturing 704 651. Against seller of stock, for not delivering 704 652. Against seller, showing anticipatory refusal, excusing nonpayment 70) 653. For breach of agreement to repurchase 706 654. For breach of a promise by seller of good will, not to carry on rival trade in vicinity 707 II. Seller against Buyer. 655. Against buyer, for refusing to receive and pay for goods, under agreement specifying both time and place of delivery 708 656. The same, where time but no place for delivery was agreed 711 957. The same, where the place, but no time of delivery was specified in the agreement 711 658. The same, another form for allegation of seller's performance where buyer's obligation was to take within reasonable time 714 659. Against buyer who received goods for examination and refused to accept 714 660. Against buyer — allegation of plaintiff's performance under an agree- ment to deliver to buyer, at any time during specified period, at the option of the buyer 717 661. Against buyer — allegation of special damage — ^payment of freight charge 717 662. Against buyer — allegation of anticipatory refusal to perform, excus- ing plaintiff's offer of performance 718 xxxiv Contents — Volume I Form' No. Page 663. Against seller of "privilege" or "option" 719 664. Against buyer, under broker's contract, buyer to furnish cable credit 720 665. Against buyer, for not delivering note for goods bought 721 666. Goods sold at auction sale; for deficiency after resale at auction. , 722 667. For breach of contract to redeliver goods, or to pay for them in a reasonable time 723 CHAPTER XXVIII. ACTIONS FOR BREACH OF WARRANTY. 668. General form on express warranty, for damages 725 669. The same, for rescission of sale 726 670. The same, for damages, where plaintiff has refused to accept goods . . 727 671. Of the soundness of a horse 728 672. Of the breeding qualities of a stallion 731 973. On express warranty of the quality of goods 733 674. The same, another form 734 675. On a sale by sample 735 676. Special damages, on express warranty of the safe qualities of thing sold; for personal injuries and injuries to property 736 677. Special damages; defects discovered after materials had been used in manufacture 737 678. On implied warranty, of fitness for particular purpose 737 679. On imphed warranty, of fitness of article for food 739 680. Another form, where plaintiff was made ill 739 681. Of the working qualities of a machine 741 682. That leased premises were suitable for particular use 742 683. Of title to chattels sold. 743 684. Of the genuineness of a note 744 685. Of the genuineness of securities 745 686. To recover money advanced on forged collateral 747 687. To recover money paid for a forged mortgage 748 688. The same, the bond and mortgage being void for usury 749 689. Of the amount due on a judgment assigned 750 690. Against agent of disclosed principal, who warrants without authority 751 691. For services rendered on employment by supposed agent who had no authority, or a sham principal 751 Contents — Volume I xxxv CHAPTER XXIX. COMPLAINTS IN ACTIONS FOR DAMAGES FOR BREACH OF CON- TRACT FOR SALE OF REAL ESTATE. Form No. Page 692. Against vendor, for damages for not fulfilling agreement to convey . . 753 693. Against vendor, attempting to sell as executor, setting forth incum- brances, because of which deed was rejected 755 694. Against purchaser, for not fulfilling agreement to purchase 768 695. Against purchaser at auction, for deficiency on resale 759 696. Averment of defendant's rescission, as an excuse for plaintiff's non- performance 760 697. Averment of false representations by the defendant, which pre- vented the plaintiff from fulfilhng ' 761 698. By vendor, against the executor of the purchaser 762 CHAPTER XXX. COMPLAINTS IN ACTIONS AGAINST AGENTS, BAILEES, ETC., FOR UNLIQUIDATED DAMAGES. I. Agents. 699. Against an agent for not using diligence to sell goods 764 700. The same, for carelessly selling to insolvent 765 701. The same, for taking worthless papers 765 702. The same, for breach of instructions as to sale , 766 703. The same, for failing to properly apply collections made . , 766 704. Against an auctioneer, for selling below the seller's limit 768 705. Against the same, for selling on credit 76S 706. Against an auctioneer or agent, for not accounting 769 707. Against a bank, for neglecting to present or protest a note lodged with it for collection 769 708. The same, for delay in presenting check deposited to plaintiff's credit 770 II. Bailees, in General. 709. Against a mere receiptor, for refusal to return 771 710. Against bailee for hire (Safe Deposit Company), for loss of property 772 711. Against same; for not taking care of and returning goods 773 712. Against a bailee to perform, work, for not using due care and skill in repairing 774 713. The same, for not returning the goods . 774 714. For damages occasioned from improperly loading a cargo 775 xxxvi Contents — Volume I Form No. Pagb 715. Against the hirer of property, for not taking care of same 775 716. The same, injury to plaintiff's horse 776 717. For injury to goods in cold storage 776 III. Common Carriers. i (a) Op Passengers and Baggage. ', 718. General allegations of defendant's capacity as common carrier; of plaintiff's becoming a passenger; of delivery of baggage 777 719. For loss of passenger's baggage 778 720. The same, for goods contained in trunk, but lost or stolen en route. . 779 721. For loss of passenger's personal effects retained in his custody. . . . 779 722. Against sleeping car company, for loss of personal effects 780 723. Against baggage transfer company for non-delivery 781 724. By passenger for breach of contract to carry; ejection of passenger. . 782 725. The same, for failure to protect passenger 783 726. Against steamboat line, for injuries to passenger 784 727. Against same, for loss of property from stateroom 785 (b) Op Freight. 728. Allegation of defendant's capacity as comi'non carrier 786 729. General allegations: defendant's capacity as a carrier engaged in interstate commerce; delivery of goods for transportation; pres- entation of claim 786 730. Allegation of defendant's liability for act of connecting carrier. . . . 787 731. For loss of goods; against initial carrier on interstate shipment. . . 788 732. Delivery in violation of terms of bill of lading 789 733. Refusal to obey direction for stoppage in transitu 790 734. For delay in delivery 791 735. The same, for failure to deliver perishable property within a reason- able time, with special damage 792 736. The 'same, shipment in refrigerator car, and failure to preserve . . . 793 737. Allegation of injury after arrival at destination 794 738. Against carriers by water, for not regarding iiotice to keep dry . . . 795 739. The same, for loss of freight 796 740. The same, allegation of loss in unloading and delivery 797 741. Against railroad company for failure to furnish cars 797 742. The same, for refusal to receive goods for transportation 798 743. Against a common or private carrier on special contract, for loss of goods 799 IV. Innkeepers. 744. Against innkeeper, for loss of trunk or contents 801 745. The same, for loss of jewelry 802 746. Against irmkeeper, who is also proprietor of bathing-house, for loss of pocket-book 803 747. For refusal to lodge traveler 804 748. For failure to protect guest 804 Contents — Volume I xxxvii Form No. V. Pledgees. Page 749. Against pledgee, for loss of pledge 806 750. For injury to pledge 807 VI. Telegraph Companies. 751. Against telegraph company, for failure to deliver message 807 752. The same, another form for failure to deliver, charging knowledge by defendant of urgent character of message 812 753. Against telegraph company, for negligence in delivering a message twice 813 754. The same, for delay in delivering a message containing a condi- tional order 815 755. The same, under Indiana statute 816 756. To recover statutory penalty for delay in transmission of mes- sage, under Georgia statute 817 757. The same, delay in delivering, causing mental anguish 818 758. The same, by husband for injuries to wife's feelings; allegation of damage 820 759. The same, for mistake in transmission of message 820 VII. Warehousemen. 760. For loss of goods 824 761. For injury to goods, by neglect to obey special instructions 826 762. For refusal to deliver 826 763. For not forwarding goods according to agreement 826 CHAPTER XXXI. COMPLAINTS IN ACTIONS AGAINST SHERIFFS. 764. For neglecting to return execution 828 765. For wrongfully releasing replevied property 830 766. For neglecting to levy 831 767. For neglecting to arrest under body execution 832 768. For neglecting to pay over moneys collected on execution 833 769. For seizing goods which were exempt from execution 834 770. For a false return 834 771. For an escape; common form, where right to body execution depends upon nature of the action 835 772. The same, where right to body execution depends upon previous granting and execution of an order of arrest 837 773. For escape from custody upon an order of arrest 838 774. Upon sheriff's liability as bail, under the N. Y. Code of Civil Pro- cedure, § 587. 839 xxxviii Contents — Volume I CHAPTER XXXII. COMPLAINTS IN ACTIONS FOR NEGLIGENCE. Form No. I. Against steam railroad company. Page 775. For injury at crossing 852 776. The same, other allegations of injury at crossing 854 777. By passenger in street car against railroad company where engine struck the street car 856 778. By passenger in street car, against both railroad company and street car company, for collision at crossing • • ■ ■ 857 779. Injury where railroad runs upon highway 858 780. For defective condition of track at highway crossing 859 781. By passenger; derailment of train 860 782. The same, accident at bridge ^ 860 783. The same, allegation of injury at station 861 784. The same, other allegations of injury to passenger 861 785. The same, allegation of loss of money and valuables in the railway accident 862 786. The same; allegation of injury received when boarding moving train 862 787. The same; allegation of failure to provide for controlling crowds at station 863 788. Injury at station to one not a passenger 863 789. The same, by licensee for injury while crossing track 863 790. Willful, wanton or reckless injury to person trespassing upon track. . . 864 791. The same, other allegations of defendant's act 866 792. By employee; under Federal Employers' Liability Act 867 793. The same, complaint showing hability under Federal Employers' Liability Act, as well as at common law and under a state statute stated in one count 869 794. The same, injury from defective equipment and material 870 795. The same, for injury from defective track 872 796. The same, other allegations of injury from defective equipment. . . . 873 797. The same, for injury caused by failure to adopt proper rules and regu- lations ., 875 798. The same, for injury because of insufficiency of employees 877 799. The same, allegation of injury from negligence of one made vice-prin- cipal under New York Railroad Law 877 800. Another form under same statute, giving more detail of the negli- gence ( 878 801. The same, for injury caused by fellow servant 878 802. The same, another allegation of negligent employment of fellow servant 879 803. The same, injury caused by being transferred to different service . 881 804. Frightening jjlaintiff's horse by unusual noises 881 805. For setting fire 882 Contents — Volume I xxxix Form No. Page 806. For killing animals 885 807. The same, under New York statute: 886 II. Against street railway company. 808. By passenger; for negligent starting of car 887 809. The same, for starting car before plaintiff reached place of safety. . 888 810. The same, negligent acceleration of speed as plaintiff was prepar- ing to alight 889 811. The same, as plaintiff was about to step upon the car 890 812. The same, negligent acceleration of speed while plaintiff was stand- ing in car 890 813. The same, injury while riding on platform between cars, from vio- lent motion of train 891 814. The same, injury while necessarily riding on platform or step of car 892 815. The same, while voluntarily riding on platform 893 816. The same, while riding on the running board of car 893 817. The same, by passenger, for injuries caused by collision 894 818. The same, injury in panic among passengers 894 819. The same, against railroad company and municipality for failure to keep in repair the roadway between the tracks, and adjacent thereto 895 820. The same, passenger alighting where street was unsafe because of repairs being made by railroad company , . 897 821. Injury to boy stealing a ride 898 822. For running over pedestrian 898 823. By street-sweeper, or other workman, employed on street work.* . 899 824. By infant, run over while in street 900 825. Injury from electric shock 901 826. For failure to keep pavement in repair 901 827. For colliding with plaintiff's vehicle 902 828. Allegation of condition of highway making necessary use of defend- ant's tracks by vehicles 903 829. The same, allegation of defective brake 903 III. Vessels. 830. Against owner of a vessel for collision with plaintiff's vessel while lying at wharf 904 831. The same, for injury from swells from defendant's vessel 905 832. Injury caused by a vessel in tow 905 833. The same, collision under way 906 834. The same, for personal injury through destruction of vessel caused by negligently loading with inflammable cargo '. 907 835. The same, allegation of negligence in towing plaintiff's vessel. 907 IV. Against municipal corpobation. 836. Preliminary allegation of organization, duty imposed by charter, notice of intent to sue, and presentation of claim 908 xl Contents — Volume I Form No. Pa^°e 837. Allegation of service of notice of intention to sue the City of New York for injury to property 911 838. Injuries caused by a defective sidewalk 912 839. Other allegations of defective sidewalks 914 840. Obstruction placed by third person and negligently permitted to remain 915 841. Injuries caused by accumulation of snow and ice 916 842. The same, other allegations of such accumulation 917 843. For unsafe condition of sidewalk caused by act or omission of abutting owner; defective leader pipe 918 844. Injuries caused by bad condition of crosswalk 918 845. Other allegations of defect in crosswalk 919 846. Injury from defective condition of highway 920 847. Failure to guard excavation made by it. 922 848. Omission to properly guard street excavation during darkness 922 849. For permitting obstruction in street 923 851. Another allegation of obstruction or defect in street 924 852. Against municipality and its licensees for defect in highway 925 853. Against municipality, the abutting owner, the contractor and sub- contractor, for defective highway 926 854. Allegation of licensing use upon street of apparatus calculated to frighten horses 972 855. For collapse of bridge 927 856. For failure to guard bridge during repairs 929 857. Allegation of negligence in construction, acceptance and repair of bridge 930 858. Allegation of neglect to repair sewer built by defendant 931 859. NegUg'ence in omitting to clear public well . 932 860. To recover damages to fruit trees, done by negligence of public servants 932 861. Against two municipalities, for negligence of workmen on connect- ing bridge 932 862. Injuries to child from dangerous playground of school 933 863. For wrongful treatment of invaUd 934 V. OBSTHtrCTIONS OR DEFECTS ON SIDEWALKS, OR IN HIGHWAY, CAUSED BY PRIVATE INDIVIDUALS. (a) On Sidewalks. 864. For defective or insecure covering of coal-hole or other opening in or from sidewalk 937 865. The same, where cover was removed and not replaced 938 866. Injury by skid or run-way on sidewalk 939 867. For injury caused by structure upon sidewalk 940 868. Leader-pipe, discharging contents over sidewalk 941 869. From excavation adjoining upon sidewalk 942 870. Injury from fall of blind, or sign, from premises abutting on high- way 942 Contents — Volume I xli Form No. ^ Page (b) Defect or Obslruciion in Roadway. 871. Against a contractor for leaving street in an insecure state, whereby plaintiff's horse was injured 943 872. For laying building materials in the street unguarded, whereby plaintiff was thrown out of his carriage 944 873. Against carrier for leaving articles for delivery in the highway ..... 946 874. Injury to child at play, from material placed in highway 945 875. Against one causing the defect, and another whose negligence was a concurrent cause of the injury 946 VI. Against landlord, tenant or occupant, for defective premises. 876. Allegation of landlord's control of portions of the premises, and plaintiff's right to invoke the duty of care with relation thereto . . 947 877. Allegation of defendant's ownership of tenement house 948 878. Against landlord, for letting premises unhealthy because of laad plumbing , . 949 879. Against landlord of tenement house, who reserved control of halls, for injuries caused by dangerous stair covering 950 880. Allegation of inj ury from defective condition of roof of which landlord retained control 950 881. Against landlord for failure to light halls or to provide stair railings 951 882. Against landlord, for neglect to provide fire-escapes (under statutes) 952 883. Against landlord for leasing infected house 953 884. Against occupant; injury from fall of elevator 954 885. Against occupant, for injuries caused by leaving unguarded a danger- ous opening 955 886. Injury to one attending public exhibition on defendant's premises 957 887. The same, injury to visitor by object falling in pubhc place 958 888. The same, injury to visitor from fall of piazza, in private dwelling 959 889. Against hotelkeeper for injury to guest 959 890. Injuries to child, from danger on premises where children were accustomed to play , 960 891. Against both owner and occupant for injury caused by explosion on premises 962 892. Injury caused by blasting 962 893. Injury to mere licensee 963 894. Against owner or lessee of wharf and privileges, for damage for not keeping in repair 964 895. The same, for injuries to vessel from bad bottom of dock 965 896. The same, allegation of defective construction of dock, whereby plaintiff's horse was lost 967 897. For negligence of mill owners, whereby plaintiff's land was over- flowed 967 VII. Master and servant. (a) Workmen's Compensation Act. 898. Complaint by employee engaged in an occupation within the applica^ tion of that statute ,. 971 xlii Contents — Volume I Form No. Page. (b) New York Employers' Ldability Act. 899. General form, under that statute 972 900. Negligent direction to plaintiff by person intrusted, by defendant with authority 974 901. Failure to furnish proper equipment 976 902. Allegation of defects in apparatus for operating mine 976 (c) Other actions, under other statutes, and under the common law. 903. Unsafe place to work; injury caused by fall of materials 977 904. The same, fall of building through overloading floors 978 905. The same, fall of overhanging bank 979 906. The same, negligent construction or operation of mine, servant being ignorant 981 907. The same, from fall of skylight 981 908. The same, from fall of scaffold 982 909. The same, scaffold not furnished by plaintiff's employer 984 910. The same, under common-law liability 985 911. The same, master having been requested to guard against threatened danger, but giving assurance of safety, lOr promise to remedy the defect 986 912. The same, danger which was of plaintiff's risk, but enhanced by de- fendant's neglect, plaintiff being ignorant of unusual danger .... 986 913. By faUing of material in excavation which plaintiff was engaged in making 988 914. Defective tools and appliances; allegation of defective elevator car 989 915. The same, allegation of defective elevator shaft 990 916. The same, allegation of explosion of steam engine 990 917. The same, allegation of supplying machine with an unnecessary appliance of a dangerous character 990 918. The same, failure to guard machine as required by statute 991 919. The same, lack of safety appliance which master promised to supply 992 920. The same, from defect in machinery from failure to keep inrepair and unknown to servant 993 921. The same, employee induced by promise to repair or replace to con- tinue use of defective machine 994 922. The same, where injury occurs from two defects in safety appli- ances for machinery or from one of them 99g 923. From incompetent fellow servant £97 924. Allegation of failure to supply sufBcient employees 998 925. Failure of employer to promulgate rules 999 926. From ignorance in the use of dangerous tool, where employee was young and without experience 1000 927. Failure to instruct regarding danger not known without special knowledge or actual experience jqqj 928. By infant employed in factory in violation of N. Y. Labor I-aw 1002 Contents — Volume I xliii Form No. VIII. For malpractice, etc. Page 929. Against an attorney, for negligent delay in prosecution of a suit... . 1003 930. Against the same, for negligent conduct of litigation 1006 931. Against the same, or a title company, for negligence in examining a title 1007 932. Against attorney, for negligent investment on mortgage 1009 933. Against an attorney, for giving dishonest advice 1010 934. Against a physicjfin, for maltreatment 1012 935. Against physician, for negligent treatment 1013 936. Against a surgeon for malpractice 1014 937. The same, more specific allegation of maltreatment 1016 938. Against examiner in lunacy for negligently giving certificate of in- sanity 1016 939. Against hospital superintendent for neglect of patient 1017 940. Against public hospital, for injuries caused by incompetent em- ployees ^ 1018 941. Against dentist 1019 942. Against corporation practicing dentistry 1019 943. Against stockbroker for negligence in operating a "straddle" 1020 944. Against officer of corporation for negligent management of its affairs. , 1022 945. By one having no contractual relation with defendant to recover for injury through article of defendant's manufacture 1023 946. Against a wholesale dealer who sells an explosive oil to a retailer, who in turn sells to plaintiff 1024 947. Against compounder of drugs for negligence in selling to retailer poisonous drug, under wrong label 1025 948. Against druggist for negligently furnishing to plaintiff a wrong drug 1027 949. For delivering to common carriers dangerous materials without disclosing their character 1028 IX. Miscellaneous. 950. For keeping a dangerous animal,, by which plaintiff was injured 1030 951. For injury from vicious horse. 1032 952. Against owner of vicious horse, for leaving it untied in public street . 1033 953. Against owner of dog for injury to sheep and goats 1034 954. Injury from runaway horse 1035 955. Against owner of horse negligently driven by servant upon pedes- trian 1036 956. The same, negligently driven against plaint^'s vehicle 1037 957. The same, for negligently driving, where the damage occurred in plaintiff's endeavor to avoid a collision 1037 958. Negligently driving high-spirited horse where it would become frightened and unruly 1038 959. For negligent driving of automobile 1039 960. Another form, with specific allegation of character of negligence . . 1040 961. For injuring borrowed or hired chattels 1041 xliv Contents — Volume I Form No. Page 962. Negligently watching fire, which spread to plaintiff's land 1041 963. By electric shock from improperly charged wires 1042 964. Against gas company for explosion caused by leakage into private premises 1043 965. Against two or more persons whose separate negligent acts contrib- ute to the injury 1044 966. Injury received when attempting to rescue another from danger 1045 X. To Recover over against one whose fault caused the injury. 967. By municipal corporation, for recovery over against the creator of obstruction or defect in highway 1045 968. By joint tort feasor for recovery over against the other whose affirm- ative act of negligence caused the injury 1049 969. Another form, by contractor to recover over against sub-con- tractor 1051 970. Another form; by owner of real property to recover over from the one primarily liable; failure to replace cover of coal-hole. . 1052 971. By insurance company, subrogated to rights of owner of injured property 1054 972. By state, or insurance carrier, against third person whose negli- gence caused the injury for which an employee has secured com- pensation from his employer under the Workmen's Compensa- tion Law 1055 XL Allegations op injury and damage. 973. Allegation of bodily injury, in general terms 1056 974. Specific allegations of bodily injury 1060 975. Secondary results of injury 1061 976. Permanency of injury 1061 977. Medical and surgical expenses 1032 978. Loss of earnings or income 1062 979. Expenses incurred in employing substitute 1063 980. By married woman, for loss of separate earnings 1063 981. Allegation of damage to property , 1064 982. Another form; injury to plaintiff's business 1065 983. For injury to wife, or minor child 1066 984. Allegation of special damages incurred in endeavoring to reduce damages anticipated from defendant's act 1068 CHAPTER XXXIII. COMPLAINTS IN ACTIONS FOR NEGLIGENTLY CAUSING DEATH. 985. General form; injury received in New York State 1069 986. The same, another form, under Federal Employers' Liability Act . 1072 987. Where the cause of action arose in another State, or in a foreign country IO73 Contents — Volume I xlv CHAPTER XXXIV. COMPLAINTS IN ACTIONS FOR NUISANCE. Form No. Page 988. General form; against the creator of the nuisance, with demand for damages, or for abatement and damages, or for injunction and damages; slaughter-house 1078 989. The same, against a oontinuer 1081 990. Allegation of maintenance of powder magazine and explosion thereof : 1082 991. Against plant for manufacture and storing of explosives, to enjoin continuance 1082 992. Allegation of nuisance from smoke, etc., and injuries therefrom. . . 1083 993. Against gas company 1084 993a. Against proprietor of factory, the machinery of which in operation causes vibration of plaintij's building, and noise 1085 994. Allegation of operation of electric light plant 1087 995. Against manufacturing carried on upon a floor over plaintiff, caus- ing injury from substances used 1087 996. Allegation of maintenance of improper privies and drains 1089 997. Against proprietor of bowling alley 1090 998. Against proprietor of gambling hall 1090 999. Against proprietor of house of prostitution, to enjoin continuance and for damages 1092 1000. To enjoin offenses against public decency 1093 1001. For removal of encroachment in highway; by public authorities. . 1094 1002. The same, by private person, suffering special damage 1095 1003. Against creator of dangerous condition in public highway, causing personal injury 1096 1004. The same, by private owner or occupant, sustaining special damage 1097 1005. For making excavation in dangerous proximity to highway, and failing to guard the same 1098 1006. For erecting and maintaining upon highway a structure calculated to frighten horses 1099 1007. Against city for removal of structure erected by it in public street . 1100 1008. Against municipality for licensing an unlawful and dangerous use of highway 1102 1009. For injuries received from maintenance of vault under sidewalk . . . 1102 1010. Obstruction in sidewalk maintained by abutting owner 1104 1011. Against owner of leased premises for fall of material therefrom. . . 1105 1012. Against one using sidewalk unreasonably 1105 1013. The same, by means of exhibition attracting crowds 1106 1014. For obstructing a private way 1107 1015 Injury from defective water pipes and drains 1108 1016. For flowing water from adjoining roof on plaintiff's premises .... 1109 xLvi Contents — Volume I Form No. Page 1017. Depriving plaintiff's land of lateral support; land in its natural condition 1109 1018. The same, where foundation of plaintiff's building was injured; de- fendant given license to shore it up and protect it; against both owner and contractor 1110 1019. The same, where plaintiff's building was injured, defendant not attempting to protect it 1112 1020. Against municipality for damages caused by sewer 1113 1021.' Against municipality for negligence in maintaining sewer 1114 1022. Against municipality for damages caused by maintenance of insuf- ficient sewer 1115 1023. Pollution of water course by factory wastes 1116 ,1024. The same, allegation of injury caused by many defendants acting independently 1117 1025. Against municipality, for pollution of plaintiff's pond 1118 1026. Allegation of laying and maintaining private drain causing injury 1120 1027. Against erector of a dam, causing overflow of plaintiff's premises. 1120 1028. The same, against both erector and^ontinuer, where the land has been transferred 1121 1029. Averment of special damage to plaintiff's land 1122 1030. Allegation of notice to continuer of improper embankmertt 1122 1031. Against lessee of railroad for continuing insuflScient sluiceway. . . 1123 1032. For damage caused by bursting of reservoir 1124 1033. For unreasonably retaining or diverting water from natural stream 1125 1034. Allegation of right by prior appropriation 1127 1035. For diverting water which plaintiff had theretofore used for pur- poses of irrigation 1127 1036. Interfering with plaintiff's underground percolations, by artificial means 1128 CHAPTER XXXV. COMPLAINTS IN ACTIONS TO RECOVER POSSESSION OP REAL PROPERTY (ejectment). 1037. General form; for possession and damages accruing after action be- gun 1131 1038. Another form; including demand for mesne rents and profits 1133 1039. By owner of undivided interest 1135 1040. By grantee, suing in name of grantor, because at time of convey- ance premises were adversely held 1135 1041. Setting forth plaintiff's title by deed 1135 1042. Setting forth title by devise II37 1043. Setting forth title by descent II37 1044. By lessor against tenant 113g Contents — Volume I xlvii Form No. Page 104.5. Against tenant holding over after demand and notice to quit, for double damages 1 139 1046. For breach of condition subsequent in defendant's deed 1139 1047. By adult, who has given a deed during infancy 1140 1048. To accomplish removal of overhead wires 1141 1049. For removal of telephone wires and poles in highway in which plaintiff owns the reversion 1142 1050. By widow, for dower 1 142 CHAPTER XXXVI. COMPLAINTS IN ACTIONS FOR TRESPASS UPON REAL PROPERTY. 1051. Ordinary form, for a single trespass 1146 1052. The same, for continuing acts of trespass, asking damages and in- junction 1 147 1053. To restrain threatened trespass 1148 1054. Treble damages for cutting timber '. 1148 1055. Allegations of special damages 1149 1056. Allegations permitting exemplary damages; for entering plaintiff's house and injuring it and his goods 1150 1057. By tenant against landlord for eviction 1151 1058. Trespass by defendant's animals 1151 1059. For trespass by railroad company upon highway in which plaintiff has a reversionary interest 1152 1060. By abutting owner, having reversion in highway, to recover dam- ages for private use 1153 1061. For damages for destruction of shade trees in street in front of plaintiff's premises 1 154 1062. To compel defendant to remove encroaching wall 1155 1063. Injury to neighboring premises from blasting 1155 1064. Injury upon highway caused by operation on neighboring prem- ises; blasting 1156 1065. For trespass by hunter or fisherman upon posted lands 1156 1066. For treble damages for forcible entry and detainer 1157 CHAPTER XXXVII. COMPLAINTS IN ACTIONS FOR WASTE. 1067. By lessor, for damages for waste 1159 1068. Lessor against lessee, ^or injunction and damages 1161 1069. By owner of remainder in fee against life tenant 1162 xlviii Contents — Volume I EoRM No. Page 1070. By ward against guardian 1163 1071. By tenant, in common, or joint tenant, against co-tenant 1164 1072. By heirs against dowress 1165 1073. By purchaser at sheriff's sale, for waste committed before con- veyance 1165 1074. The same, by redemptioner, against occupant 1166 1075. By mortgagee against stranger, after deficiency judgment in fore- closure 1167 1076. For forfeiture and eviction, on account of waste 1168 CHAPTER XXXVIII. COMPLAINTS IN ACTIONS FOR CONVERSION. I. Where defendant wbonqfolly takes possession. 1077. Common form; for taking from plaintiff's possession and convert- ing 1171 1078. Joint conversion by several defendants 1174 1079. For conversion of money 1174 1080. For conversion of a negotiable instrument 1175 1081. For conversion of standing timber 1177 1082. For conversion of earth or minerals 1177 1083. By assignee. 1178 1084. By executor or administrator for conversion in decedent's lifetime 1179 1085. The same, for conversion after death of plaintiff's testator or in- testate 1180 1086. By one having a lien which entitles him to possession 1 180 1087„ Against tenant for conversion of fixtures 1181 1088. By factor, for conversion of goods in his possession 1182 1089. Against sheriff 1182 1090. Against purchaser with notice from original wrongdoer 1183 II. Where defendant rightfully obtains possession, bdt wrongfully WITHHOLDS OR DISPOSES OF THE PROPERTY. 1091. General form; plaintiff the owner 1184 1092. By plaintiff, an assignee under an assignment, prior to demand. 1185 1093. By part owner; against one converting under chattel mortgage given by co-tenant 1186 1094. Against part owner 1187 1095. Against the one who has possession of goods which another has wrongfully taken from plaintiff 1188 1096. Against assignee for benefit of creditors of fraudulent buyer 1188 1097. For conversion of sand 1189 1098. For conversion of money .- 1190 1099. For conversion by voluntary custodian 1190 1100. Against borrower for converting the thing borrowed 1191 Contents — Volume I xlix Form No. Page 1101. Against borrower of note for use as collateral, who subsequently sells it 1192 1102. Against one who obtains possession of plaintiff's property for the purpose of returning it, but who converts it 1193 1103. For conversion of goods obtained by false representations 1194 1104. For conversion of bond delivered to defendant to sell 1195 1105. Against one converting proceeds of note given him to procure discount 1196 1106. By pledgor against pledgee, for conversion of collateral, after payment of loan 1197 1107. The same, after tender of amount due 1198 1108. The same, after unauthorized sale without notice, after plaintiff's default in repayment 1199 1109. The same, refusal to sell upon request after plaintiff's default in re- payment 1200 1110. The same, where pledge was under an assignment which was absolute on its face _ 1200 1111. Bor conversion of goods sent for examination only 1201 1112. Against factor, or agent to sell, who refuses to remit proceeds of sale , 1202 1113. Against agent under an agreement for sale of plaintiff's property, or its return 1203 1114. The same, under agreement to purchase or return 1205 1115. Against consignee, appropriating goods shipped by mistake 1205 1116. Against agent to sell at a price to be approved by principal for- selUng without approval ■ 1206 1117. Against a purchasing agent for converting money advanced. . . . 1207 1118. Against stockbroker for conversion of securities he had agreed to carry 1208 1119. The same, another form in more detail 1210 1120. Against warehouseman by assignee erf warehouse certificate 1212 1121. Against common carrier 1213 1122. Against same; after reshipment to consignor. 1213 1123. Against private expressman or truckman who delivers to wrong' person 1215 1124. Against bank; misappropriation of depositor's funds by paying unauthorized checks 1215 1125. Against bank which collected checks belonging to plaintiff on unauthorized or forged indorsements, and paid out proceeds. . . 1216 ] 126. For conversion of deposit made in trust for plaintiff 1217 1127. Conditional sale agreement; seller against buyer 1218 1128. The same, seller against transferee of buyer, or purchaser at fore- closure 1219 1129. By lessor against lessee of chattel after expiration of term 1221 1130. The same, upon breach of condition in lease 1221 1131. Against purchaser of mortgaged chattels after conversion by mortgagor 1222 1 Contents — Volume I Form No. Page 1132. Against sheriff, who has attached under a writ subsequently vacated, and who then refuses to surrender 1224 1133. Against attorney, for conversion of moneys collected or received by him 1225 1134. By seller to an insolvent buyer against transferee of the bill of lading 1226 1135. For conversion of goods upon which plaintiff has a lien under foreign law 1230 1136. By corporation against its officers or directors 1231 1137. By municipality, against one who wrongfully obtains its public moneys through misconduct of public officer 1-31 1138. By assignee of borrower, against corporation, which has collected usurious interest for loans and renewals on pledged property; al- legation that commissions charged- were, in interest 1232 The measure of damages in conversion, and in trespass and replevin . . . 1237 CHAPTER XXXIX. . COMPLAINTS FOR INJURIES TO PERSONAL PROPERTY OTHER THAN FOR CONVERSION. I. Trespass de bonis asportatis. 1139. For seizing and carrying away plaintiff's goods 1242 1140. The same, plaintiff having regained possession before suit brought 1243 1141. For seizing plaintiff's vessel 1244 1142. Against sheriff for excessive levy under warrant of attachment. . 1244 1143. By mortgagee of chattels against sheriff for selling them on execution against mortgagor after default . 1245 II. Other injuribs to chattels. 1144. For malicious injury to property 1248 1145. For maliciously shooting plaintiff's dog 1248 CHAPTER XL. COMPLAINTS IN ACTIONS OF REPLEVIN. I. Where the chattel was wrongfully taken. 1146. Plaintiff the owner 1250 1147. For goods wrongfully taken from plaintiff's assignor 1252 1148. For goods wrongfully taken from plaintiff's lessee or bailee 1253 1149. Plaintiff not owner, but having a right of possession because of special property ' 1254: Contents — Volume I li Form No. Page 1150. Allegatioa of concealment of chattel 1255 1151. Against sheriff, marshal or constable for seizing exempt property. 1255 II. Original POSSBssIo^f l.\wful, but followed by unlawful DETENTION. 1152. General foriiji; for wrongful detention 1256 1153. The same, another form sustained in Indiana 1257 1154. By seller against purchaser after a conditional delivery under agreement to pay upon delivery 1258 1155. Against one having lien who refuses to surrender the property after tender of charges 1258 1156. Conditional sale agreement; seller against buyer 1260 1157. The same, by seller against a purchaser from the buyer 1260 1158. The same, by buyer against the seller who has retaken the chattel 1261 1159. Fraudulent purchase; false representations 1261 1160. The same, insolvency and intent not to pay 1263 1161. The same, against the transferee of purchaser 1264 1162. The same, against the assignee for benefit of creditors 1265 1163. The same, against sheriff holding the chattels under levy under a judgment against the purchaiser 1266 1164. Against sheriff to recover exempt property 1267 1165. The same, another form sustained under Nebraska statute 1267 1166. The same, another form sustained in Indiana '. . 1268 166a. Where goods were originally stolen or lost, and subsequently found in defendant's possession 1269 1167. By lessor of chattel against lessee, or transferee from the lessee, after default in payment of rent 1270 1168. By chattel mortgagee, against sheriff holding property under exe- cutlbn against mortgagor 1271 CHAPTER XLI. COMPLAINTS IN ACTIONS FOR DAMAGES FOR FRAUD AND DECEIT. 1169. General form; illustrating the principles involved 1276 1170. Specific allegation of representation by means of prospectus, cir- cular or advertisement 1278 1171. Securing goods on credit; representation through commercial agency 1279 1172. Specific allegation of representation by agent 1281 1173. Specific allegations of the representations made, and as to their falsity 1281 1174. Allegation of statement by defendant on knowledge when he had none 1282 lii Content — Volume I Form No. ' Page 1175. Allegation combining the charges that defendant knowingly made the representation, or made it as of his actual knowledge when he had none 1283 1176. Representation by defendant of intent regarding his future action . 1284 1177. Against a defendant who did not authorize or participate in the representation, but who retains benefit 1284 (a) Fraud in connection with purchase made by plaintiff 1178. Purchase of horse; general representation as to condition or char- acter 1285 1179. The same, where the representation covered the cause or character of a patent defect 1286 1180. Purchase of goods; fraud in representing quality 1287 1181. The same, fraudulently delivering inferior quality or smaller quan- tity than agreed 1288 1182. The same, fraudulent representation of ownership 1290 1183. The same, where plaintiff has regained portion by means of a re- plevin action 1291 1184. Purchase of land; fraudulent representation as to quantity 1291 1185. The same, fraudulent representation as to title 1292 1186. Purchase of corporation securities; false representation as to the corporation 1293 1187. The same, against the directors or officers, who issue a false pro- spectus '. 1296 1188. The same, false representation as to amount of capital 1297 1189. The same, against directors for declaring an unearned dividend which induced plaintiff to buy the stock 1301 1190. Goodwill of business; fraudulently representing its value 1303 (b) Other species of fraud. 1191. Procuring loan; false representations as to security given 1304 1192. The same, against corporate oflScer, on representation as tc^har- acter of the corporation 1305 1193. The same, on a worthless check 1306 1194. Deposit of money in bank; against officers for fraudulent state- ments inducing deposit 1307 1195. The same, against director or officer accepting deposit when bank was insolvent 1308 1196. The same, for inducing plaintiff not to withdraw deposit 1309 1197. Inducing plaintiff to part with his property; misrepresenting value of corporate stock 1309 1198. The same, misrepresenting character and value of a note. ...... 1310 1199. The same, as to judgment ; 1311 1200. The same, inducing sale on credit 1313 1201. The same, inducing sale to another on credit 1314 1202. Against one who falsely states his financial condition to prevent eviction for non-payment of rent 1316 1203. Against purchasing agent who falsely states the purchase price 1317 1204. Against an agent on his personal liability I3I8 Contents — Volume I liii Form No. Page 1205. For personal injuries, against manufacturer who intentionally con- ceals a defect which he knows renders the article dangerous 1319 1206. Against one who makes a false warranty (tort in the nature of an . action for deceit) 1320 CHAPTER XLII. COMPLAINTS IN ACTIONS FOR ASSAULT AND BATTERY. 1207. General form , 1322 1208. Another form, containing particulars of the assault 1383 1209. Another form, containing particulars of the damages inflicted, with special damage 1324 1210. Another form, alleging an accompanying entry into plaintiff's dwelling 1324 1211. Another form, with allegation of false imprisonment 1325 1212. By husband, for an assault on wife 1326 1213. For forcible defilement of plaintiff 1327 1214. Against common carrier, for ejection of passenger 1327 1215. Against common carrier, for forcible ejection of trespasser 2329 1216. Against common carrier, for unlawful treatment of one stealing a ride 1329 1217. Against the master and owners of a vessel for an assault by master upon a seaman 1331 1218. Willful injury to one trespassing or committing a misdemeanor . . . 1332 CHAPTER XLIII. COMPLAINTS IN ACTIONS FOR FALSE IMPRISONMENT. 1219. Against private individual; imprisonment on private premises .... 1334 1220. The same, imprisonrhent in defendant's store on charge of theft . . . 1335 1221. The same, summoning poUce, and causing arrest without warrant on similar charge 1336 1222. The same, imprisonment by an arrest without legal process 1337 1223. The same, mider a void order of arrest in civil action, and showing special damages 1338 1224. The same, allegation showing defendant's responsibility for act of employee 1341 1225. Against poUce officer; arrest made under void process 1342 1226. The same, arresting wrong person under valid process 1343 1227. A^inst judicial officer acting without jurisdiction 1344 liv Contents — Volume I CHAPTER XLIV. COMPLAINTS IN ACTIONS FOR MALICIOUS PROSECUTION. Form No. Page 1228. On a criminal charge; where plaintiff was tried and acquitted 1347 1229. The same, where plaintiff was discharged by magistrate on prelimi- nary hearing ' 1349 1230. The same, where plaintiff was held to bail, but the grand jury failed to indict 1350 1231. The same, where indictment was found, but afterwards dismissed or quashed 1350 1282. The same, where plaintiff was charged with a misdemeanor, and acquitted by magistrate 1352 1233. On an arrest in a civil action 1353 1234. On a seizure of plaintiff's property in a civil action 1355 1235. For maUciously fiUng lis pendens to prevent sale of plaintiff's property 1357 1236. For bringing a civil action 1358 CHAPTER XLV. COMPLAINTS IN ACTIONS FOR LIBEL AND SLANDER. I. Libel. 1237. Words libelous on their face, general form, libel referring to plaintiff by name 1363 1238. The same, appUcation to plaintiff not appearing on face of libel 1366 1239. The same, words charging crime 1367 1240. The same, but extrinsic facts required to show that the charge imputed commission of a crime 1368 1241. The same, charge of disgraceful or degrading act 1369 1242. The same, words not necessarily actionable, and extrinsic facts essential to show libelous meaning 1370 1243. The same, charge relating to official's public duty 1371 1244. The same, charge relating to a trade or profession; by physician. . 1372 1245. The same, by an attorney 1374 1246. The same, by merchant or manufacturer 1375 1247. The same, by partners 1376 1248. The same, by partners where charge makes no reference to the plaintiffs, by name or by firm name 1377 1249. Words not actionable per se; extrinsic facts necessary to show the charge to be defamatory 1378 1250. The same, another form, charge of disgraceful act 1379 1251. The same, where statement of the libel shows it to have been qualifiedly privileges 1380 Contents — Volume I Iv FoRV No. Page 1252. Allegations showing special pecuniary damages 1381 1253. libel on the quaUty of a thing, plaintiff the manufacturer, dealer or owner ; 1383 1264. Libel by means of words of a code, meaningless on their face 1383 1255. Libel by means of published portrait 1385 1256. Libel by means other than written words 1385 1257. Where the libel was in a foreign language 1386 ' 1258. Specific allegation of publication in defendant's newspaper 1387 1259. Allegation that defendant instigated pubUcation 1387 1260., Allegation of pubUcation of libel by corporation 1388 1261. By one of a class libeled 1388 1262. Allegation of repetition, or amplification, of the charge, in enhance- ment of damages 1389 1263. By husband for illness of wife caused by hbel 1390 II. Slakder. 1264. Words slanderous per se; general form 1390 1265. The same, words charging a crime (perjury) 1392 1266. The same, words charging crime (perjury) in such manner as to require extrinsic facts to be set forth to show intent 1393 1267. The same, words used of ambiguous meaning, with allegation of intent 1394 1268. The same, another form 1395 1269. The same, where words refer to plaintiff in his profession or occupation 1395 , 1270. The same, another form, words charging general dishonesty 1397 1271. The same, words charging unchastity to a woman 1398 1272. Words spoken ironically 1399 1273. Words spoken in a foreign language 1400 1274. Slander of title to realty 1400 1275. Slander of title to personalty 1402 .CHAPTER XLVI. COMPLAINTS IN OTHER ACTIONS INVOLVING AN INVASION OP PERSONAL RIGHTS. I. Abuse of legal process. 1276. Issuing execution upon a judgment which has been paid. .• 1404 1277. Causing plaintiff's arrest on criminal charge, to compel settle- ment of debt 1406 II. Alienation op affections, or enticement. 1278. For enticing away plaintiff's wife 1407 1279. For enticing away plaintiff's husband 1408 Ivi Contents — Volume I Form No. , III. Criminal conversation. Page 1280. With plaintiff's wife 1410 IV. Seduction 1281. For seduction of plaintiff's daughter or servant 1411 1282. By minor under the age of consent 1413 V. Other miscbllaneoits injuries. 1283. For maliciously causing plaintiff's discharge from employment. . 1413 1284. For enticing away plaintiff's employees 1414 1285. For wrongful sale of drug to minor 1416 1286. For ejection from public resort 1416 CHAPTER XLVII. COMPLAINTS IN ACTIONS FOR CONSPIRACY. 1287. Allegation of formation of conspiracy, and acts in furtherance thereof 1418 1288. For conspiring to injure plaintiff's business 1419 1289. For conspiring to obtain goods by fraud 1422 CHAPTER XLVIII. COMPLAINTS IN MISCELLANEOUS ACTIONS AT LAW. 1290. Against representative of deceased joint debtor, or partner 1425 1291. For damages for refusal to renew contract 1426 1292. For breach of agreement by corporation to repurchase its stock from subscriber '. 1427 1293. Against executor or adminLs^trator for a devastavit in not collect- ing a debt due the decedent ^ 1428 1294. For selling plaintiff an article for the possession or sale of which he has been fined ; 1430 1295. For wrongfully refusing possession of, and dissecting, the body of plaintiff's spouse, or relative 1431 ABBOTT'S FORMS OF PLEADING [SECOND EDITION] CHAPTER I FORMAL PARTS OF PLEADINGS [For brevity, and for the convenience of the pleader, those parts of plead- ings which, though essential, are of a formal nature, and not the statement of the cause of action or the character of the parties, are here presented by themselves, so that in the subsequent chapters, presenting Complaints, A^f- SWERS, etc., it may suffice to give the allegations of fact constituting the cause of action, or defense, without also presenting the title, the commencement, or the conclusion of the pleading. Pleadings exceeding two folios in length must have the folios marked in the margin, and shall be indorsed with the title of the cause.^ Copies of pleadings served on the adverse party should be perfect copies, including signature of attorney, the jurat, etc.; such adverse party has of course the right to presume that they are so, and proceed accordingly.] ^ I. Formal parts of the complaint. , page 1. Titles introduction; demand for judgment 2 2. The same, setting forth several causes of action 4 3. Incorporating allegations in another cause of action or defense, by reference 5 4. Incorporating document by annexing a copy to the pleading. . . 6 5. Allegation of i-eason for joining^a party as defendant instead of as co-plaintiff 7 II. Formal parts of an answer. 6. Common form, by a sole defendant 7 7. Commencement of answer by a defendant sued by a wrong name .^ 8 8. The same, by an infant 8 9. The same, by one judicially determined incompetent 8 10. Title and commencement, by one defendant answering sepa- rately 9 11. Answer containing several defenses and counterclaims 9 12. Answer setting up partial defense 11 13. By a defendant asking relief against a co-defendant 12 ' N. Y. General Rules of Practice, of the objection. See Abbott's Pr. & No. 19. In case of omission to folio Forms, 2d ed., pp. 63-64. or indorse, the defect is waived unless ^ Klenert v. Iba, 17 Misc. 69, 39 the pleading is returned within N. Y. Supp. 836; McCarron v. Cahill, twenty-fow hours with a statement 15 Abb. N. C. (N. Y.) 282. I Abbott's Forms op Pleading III. Reply, and demurrer. page 14. Reply setting up several defenses to several counterclaims. . . 13 15. Reply served by direction of court 13 16. Demurrer to complaint 1* IV. Amended and supplemental pleadings. 17. Amended pleading 15 18. Supplemental pleading 15 V. General instructions with reference to pleading. (a) General principles of pleading in actions on contract 17 (b) Allegations common to many actions 19 I. FORMAL PARTS OF THE COMPLAINT 1. Title; Introduction; Demand for Judgment. Supreme Court,' County of .* [Names of all the plaintiffs],^ . plaintiffs, against [Names of all the defendants], defendants. The plaintiff above named, [if appearing hy attorney, may ' If the suit is brought in a local court, give the full title of the court, — e. g., "City Court of the City of New York," "Municipal Court (K the City of New York; Borough of ; District." Where the summons and com- plaint are served together, and the name of the court appears in the summons, its omission from the complaint may be disregarded as a technical irregularity, which cannot injure the defendant. Van Namee V. People, 9 How. Pr. 198; Van Ben- thuysen v. Stevens, 14 id. 70. * In an action in the Supreme Court the complaint should also name the county for the trial. Code Civ. Pro., § 487. The omission to state it is a mere irregularity, which the court may allow to be amended; even by way of defeating a motion to set aside the summons because of the defect. Wallace v. Dimmick, 24 Hun, 635. It is not waived by obtaining time to answer, nor can it be cured by reference to the summons. The com- plaint, in such case, must be amended, or stricken out as irregular. Abb. Pr. & Forms, 2d ed., p. 631, and cases cited. Naming the county in the title of the cause, as above, is a suflScient des- ignation of the name of the county in which plaintiff desires the trial to be had, under N.» Y. Code Civ. Pro., §§ 417, 481; Ward v. Sands, 10 Abb. N. C. 60. No obscurity can arise from the creation of the "Greater New York," if the designation be still made by county, as "Supreme Court; county of Queens." ^The caption should contain the names of all the parties, plaintiffs and Formal Parts of Pleadings add, by M. N., his attorney], complaining of the defendant,^ alleges ^ [on information and belief] : ^ [Here set forth the facts constituting the cause of action.] ^ Wherefore plaintiff [or, plaintiffs] demands judgment ^^ against the defendant [or, defendants] for the sum of dollars and cents, with interest " thereon from the day of , 19 , [or, when the action is for the recovery of sums which became payable at different times, say, with interest on dollars thereof, from the defendants (N. Y. Code Civ. Pro., §481). See Chap. II, Allegations OP Official Character and Ca- pacity. When names of defendants are wholly or partly unknown, see, post, Chap. II, under "General Rules for Naming of Parties;" N. Y. Code Civ. Pro., § 451; Abb. Prac. & Forms, 2d ed., pp. 625-626. * It is sufficient, when parties have been once named in the pleading, to describe them afterwards by the terms "said plaintiff" and "said defendant." Davidson v. Savage, 6 Taunt. 121; s. c, 1 Eng. Com. L. R. 537; Stevenson v. Hunter, 6 Taunt. 406; s. c, 1 Eng. Com. L. R. 675. And this rule applies equally where the plaintiff sues in a special char- acter, beginning his pleading by showing his character. Middleton v. Wohlgemuth, 141 App. Div. 678, 126 N. Y. Supp. 734; Stanley v. Chap- pell, 8 Cow. 235; Ketchum v. Morrell, 2 N. Y. Leg. Obs. 58. 'A statement in a pleading that the party "claims" a fact to be true is not an allegation of the truth of the fact. JlitzwoUer v. Lurie, 176 App. Div. 100, 162 N. Y. Supp. 475. ' May insert here, if plaintiff de- sires all the allegations to be so alleged. See nejit note. •If the pleading is to be verified, such of its allegations as are made, not from knowledge, but upon informa- tion and belief, should be distin- guished by the phrase, "upon in- formation and belief." The N. Y. form of verification (Code Civ. Pro., § 526) is framed to except only those allegations which, in the pleading, are "therein slated to be alleged on in- formation and belief." Where the pleading is wholly on in- formation and belief, it will be suffi- cient to indicate it in the introduc- tory line, once for all. " The form here given is appro- priate to all classes of common-law actions, where the plaintiff seeks a judgment for a sum of money only. In the succeeding forms of com- plaints, where a different form of demand of judgment is appropriate, it will be found appended. Where an answer has been inter- posed the court may mould the form of judgment to fit the case as made out (Code Civ. Pro., § 1207); it is not, therefore, an objection that plaintiff has demanded too much. Davis v. Rosenweig Realty Co., 192 N. Y. 128. '' Meaning interest in addition to the amount demanded. Halpern v. Langrock Bros. Co., 169 App. Div. 464, 155 N. Y. Supp. 167. When the action is for unliqui- dated damages omit the demand for interest. 4 Abbott's Forms of Pleading day of ,' 19 , and on dollars thereof, from the day of , 19 ], together with the costs of this action.'^ [Signature and office and post office address of plaintiff's atty.] 13 [Or, signature and address of plaintiff, if appearing in per- son.] [Verification.] ^* 2. The Same, Setting Forth Several Causes of Action.^^ The plaintiff above named, complaining of the defendant, alleges: '2 It is usual to insert here a de- mand for costs; but we consider it unnecessary, for the costs form no part of the relief to which the cause of action entitles the plaintiff. They are simply an incident to his recovery, which the statute awards to him, of course, as the successful party. It is not necessary that the com- plaint should be dated, or show the time of the commencement of the action. Maynard v. Talcott, 11 Barb. 569. Allegations in the present tense refer to the date of the verifica- tion. Prindle v. Caruthers, 15 N. Y. 425. An action is commenced by the service of the summons (N. Y. Code Civ. Pro., § 416) and the rights of the parties to an action at law must be determined as they existed at its commencement. Styles v. Fuller, 101 N. Y. 622; Wisner v. Ocumpaugh, 71 id. 113. " N. Y. Code Civ. Pro., § 520. A printed subscription suflBciently com- plies with the 'Code requirements. Barnard v. Heydrick, 2 Abb. Pr. N. S. 47; Mutual Life Ins. Co. v. Ross, 10 Abb. Pr. 260. "Optional in New York, unless plaintiff seeks substituted service of summons (§ 439) or wishes to file a lis pendens (§ 1670). Regulated by Code Civ. Pro., §§ 526-9. See forms in Abb. Pr. & Forms, 2d ed., p. 1361. '* Each cause of action must be separately stated and numbered. N. Y. Code Civ. Pro., § 483. The causes of action required to be sep- arately stated are such as, by law, entitle the plaintiff to separate ac- tions. Sturges V. Burton, 8 Ohio St. 215. The remedy for a failure to separately state or number is by motion, not by demurrer. Michie v. Slayback, 163 App. Div. 407, 148 N. Y. Supp. 890; Freer v. Denton, 61 N. Y. 492; Gunn v. Fellows, 41 Hun, 257. The statement of a separate cause of action, or defense, should begin with appropriate words to designate it as such. Stroock Plush Co. v. Talcott, 129 App. Div. 14, 113 N. Y. Supp. 214; Benedict v. Seymour, 6 How. Pr. 298; Lippencott v. Good- win, 8 id. 242. Each statement must be complete, either by containing all necessary allegations, or by expressly referring for some of them to other parts of the pleading. (See Form 3.) The plaintiff cannot avail himself of Formal Parts of Pleadings 5 [Prefatory matter, relating to the capacity, of the parties, may be alleged here,^^ as:] That plaintiff was at all the times hereinafter mentioned, and now is, a domestic corporation. First: For a first cause of action: I. Thatj etc. [setting forth entire cause of action]. .,,■ Second: For a second cause of action: I. That, etc. [setting forth entire cause of action.] [When the right to join the different causes of action depends upon their arising out of the same transaction, this fact should be alleged, as:] That the [fire] which caused the damage I hereinbefore alleged is the same [fire] as that alleged in and] which caused the damage set forth in the first cause of action ^lerein.i^ 3. Incorporating Allegations in Another Cause of Action or Defense by Reference.^* For a second cause of action [or defense] : I. The [plaintiff] repeats and realleges as a part of this an allegation in the statement of one '^ Such prefatory matter need not cause of action, not thus referred to, be repeated, or incorporated by so, as to cure a defect in the statement reference, in the succeeding causes of Qf another cause of action. (See action. Bigelow v. Drummond, 98 notes to Form 3.) If in justifiable App. Div. 499, 90 N. Y. Supp. 913. doubt as to the legal theory on which " Lord Elec. Co. v. Barber Asphalt he can recover, plaintiff may allege Paving Co., 165 App. Div. 399, 150 his claim in several separate counts or N. Y. Supp. 1000. causes of action so as to cover all '* Each cause of action, or defense, aspects of the case; that will not be must be complete in itself. Wright w. the "unnecessary repetition" for- Larkin, 91 Misc. 673, 154 N. Y. Supp. biddpn by the Code (§ 481), which 961; Biedler v. Malcolm, 121 App. was undoubtedly aimed at the many Div. 145, 105 N. Y. Supp. 642; Sbar- counts of the common-law declara- boro v. Health Dept., 26 App. Div. tion. Eubin v. Cohen, 129 App. 179, 49 N. Y. Supp. 1033. AUega- Div. 395, 113 N. Y. Supp. 843; tions in another count, or in another Logan V. Whitley^ 129 App. Div. 666, defense, are unavailable. Baxter v. 114N; Y. Supp.255;,Veliey. Ins. Co., McDonnell, 18 App. Div. 235, 45 12 Abb. N. C. 309, and note; s. c, N. Y. Supp. 765; Victory, etc. Co. v. 65 How. Pr. 1; Blank v.. Hartshorn, 37 Webb, 26 Hun, 48, aff'd 97 N. Y. 651 ; Hun, 101. In so doing he njust not Wright v. Larkin, 91 Misc. 573, 154 state.causesot action which cannot be N. Y. Supp. 961. But proper refer- joined under Code Civ, Pro., § 484. ence to material facts previously 6 Abbott's •Forms of Pleading [cause of action], each and all of the allegations contained in paragraphs of the [first cause of action,] with like effect as if herein fully realleged,'' and incorporates herein all the f9,cts therein set forth [and the denials therein con- tained]. ^^ 4. Incorporating Document by Annexing a Copy to the Pleading.^' That at , and' on or about the day of , 19 , plaintiff and defendant entered into an agreement, a copy whereof is hereunto annexed marked "A" and made a part hereof. ^^ alleged, showing an intent to incor- porate them, will be equivalent to re- stating them. Davenport v. Walker, 132 App. Div. 96, 116 N. Y. Supp. 411; Stemmerman v. Kelly, 122 App. Div. 669, 107 N. Y. Supp. 379. See, also, Cragin v. Lovell, 88 N. Y. 258. This method of incorporation by reference is often convenient and desirable; but if thereby matter is inserted not material to the separate defense, it should be stricken out, on motion, to the end that the sulBciency of such separate cause of action, or defense, may be properly tested by demurrer. Wiener v. Boehm, 126 App. Div. 703, 111 N. Y. Supp. 126. . And see note on Incorporating Denials in Affirmative Defenses, at end of Chap. LXXIII, Vol. II. Since each defense must be sep- arately stated and numbered (Code Civ. Pro., 1 507), this method of in- corporating other allegations by reference thereto is to be limited to a specific denial, or allegation of some specific fact; a general allegation that all prior denials and allegations are repeated is distinctively bad plead- ing. Recknagel v. Steinway, 58 App. Div. 352, 69 N. Y. Supp. 132; Gar- rett V. Wood, 27 App. Div. 312, 50 N. Y. Supp. 950. " This is a proper method of allega- tion. Bigelow V. Drummond, 98 App. Div. 499, 90 N. Y. Supp. 913. 2" Denials are not incorporated under an allegation that the "allegar tions" are realleged. Dry Milk Co. v. Dairy Products Co., 171 App. Div. 296, 156 N. Y. Supp. 869. See note on Incorporating Denials in Af- firmative Defenses, in Vol. II, Chap. LXXIII. 2' Covenants and conditions con- tained in the annexed writing "ap- pear on the face of the complaint" within the Code sections relating to demurrer. See Isaer v. Hoadley, 44 App. Div. 161, 60 N. Y. Supp. 609. By this method of pleading by copy, the document itself is brought before the court, and no construction placed upon it by the pleader is ad- mitted by demurrer, or binding on the court. See Hamilton Trust Co. v. Shevlin, 156 App. Div. 307, 141 N. Y. Supp. 232; Cupples Envelope Co. v. Lackner, 99 App. Div. 231, 90 N. Y. Supp. 4. , '^ It should be alleged to be made a part of the pleading. Mut. Life Ins. Formal Parts of Pleadings 7 5. Allegation of Reason for Joining a Party as Defendant, Instead of as Co-Plaintiflf.^* That the defendant, Y. Z., is jointly interested with plaintiff [as his co-executor — or, co-partner] in the aforesaid cause of action; that before bringing this action plaintiff requested said defendant Y. Z. to join as a co-plaintiff herein, but he refused so to do, and, therefore, is made a defendant.^^ II. FORMAL PARTS OF AN ANSWER 6. Common Form, by a Sole Defendant. {Title of caiise.] The defendant [appearing herein by M. N., his attorney],^* for his answer to the complaint herein, alleges [or, denies] : [Here set forth denials, affirmative defenses and counter- claims ^^ — each separately stated and numbered,'" and each complete in itself or by reference, in it to other parts of the answer.] ^^ Co. V. Robinson, 24 App. Div. 570, of a, request. Wallach ». Dryfoos, 140 49 N. Y. Supp. 887. It must also be App. Div. 436, 125 N. Y. Supp. 305. specifically made a part of each Where the person thus made defend- separate cause of action. Booz v. ant is the assignee of a fractional part Cleveland, etc., Co., 45 App. Div. of the claim in suit, and his interest as 593, 61 N. Y. Supp. 407. such assignee is correctly set up in the ^ N. Y. Code Civ. Pro., § 448. See complaint, it is no objection to his Lewis V. Guardian Fire, etc., Co., 181 participation in a division of the N. Y. 392. judgment that he interposed no '* The Code provision requires an answer. Breck v. TJ. S. Title Guar- allegation that the one so made a anty, etc., Co., 128 App. Div. 311, defendant has refused to join as 112 N. Y. Supp. 756. plaintiff, or a showing that his con- ^' This may be omitted where he sent cannot be obtained. Baron v. has served a notice of appearance, and Lakon, 121 App. Div. 544, 106 N. Y. in any event a subscription of the an- Supp. 243. It is not necessary to swerby the attorney as,'' defendant's allege or prove a request when it ap- attorney" would suffice. N. Y. Code pears that the request would be Civ. Pro., § 421. futile. An allegation that plaintiff's ^6 gge Form 11, and notes, co-executor is "under the control" of " See Form 11. the defendant against whom claim ^ See Form 3 and notes; Douglass is made sufficiently shows the futility v. Phoenix Ins. Co., 138 N. Y. 209. 8 Abbott's Forms of Pleading [If no affirmative relief is sought, the practice is to add: "Wherefore defendant demands judgment dismissing the complaint, with costs."] [If a counterclaim has been interposed, on which the defend- ant desires affirmative relief, add:] Wherefore the defendant demands, etc., as in Form 1. Signature and office address as in case of the Complaint.] ^^ [Verification, if the complaint is verified.] ^ 7. Commencement of Answer, by a Defendant Sued by a Wrong Name." The defendant, Y. Z., sued herein as W. Z., for his answer to the plaintiff's complaint herein, alleges [or, denies] : 8. The Same, by an Infant. The defendant, an infant under the age of twenty-one years, by C. D., his guardian ad litem, answering the plain- tiff's complaint herein, alleges [or, denies] : 9. The Same, by one Judicially Determined Incompetent. The defendant, Y. Z., an incompetent person, by M. N., his committee, answering the plaintiff's complaint herein, alleges [or, denies]: 29 Required by N. Y. Code Civ. Pro., §§ 421, 520. ' '» Unless defendant is excused under N. Y. Code Civ. Pro., §§523, 1757. See Abb. Pr. & Forms, 2d ed., p. 1362. If the complaint is not verified, the answer must be if the defense set up does not go to the merits (§ 513), or if it attempts to put in issue by affirma- tive allegation the corporate capacity of a party. (§ 1776.) '1 That the person served should appear and answer even though he believes he has been served by mis- take, see Lederer Amusement Co. v. Pollard, 71 App. Div. 35, 75 N. Y. Supp. 619, 10 Anno. Cas. 481; Abb. Pr. & Forms, 2d ed., p. 744. Formal Parts of Pleadings 9 10. Title and Commencement, by one Defendant Answer- ing Separately' [Name of court] [Names of the plaintiffs], plaintiffs, . against John Doe, impleaded with Rich- ard Roe, [the answering de-\ fendant],^^ and others, defendants. The defendant Richard Roe, for his separate answer to the complaint herein, alleges [or-, denies] : 11. Answer Containing Several Defenses, and Counter- claims.^^ [Title and commencement.] For a first defense ^* [to the first alleged cause of action] : '•' [Here set forth completely the facts constituting it.] '"' '^ Where there are many defend- counterclaim." Unless corrected by ants, and onfi of them answers alone, motion, it will be treated as either, or but a few answer together, it' is a See Loew v. Mclnerny, 159 App. convenient practice to entitle the Div. 513, 144 N. Y. Supp. 546. papers of the answering defendant in ^* A denial is not strictly a defense, this way. There can be no criticism, See Eells v. Dumary, 84 App. Div. -however, if the title is merely given 105, 82 N. Y. Supp. 531. Therefore as "Thomas Fox, and others, plain- the affirmative defense immediately tiffs, against John Doe, and others, following defendant's denials may defendants," for the introductory properly be characterized as the clause sufficiently discloses which first defense, defendant is separately answering. ** A defense if not interposed to the '' In all cases of more than one dis- whole complaint must refer -to the tinct defense or counterclaim, the cause of action which it is intended to same must be separately stated and answer. N. Y. Code Civ. Pro., § 507. numbered. N. Y. Code Civ. Pro., If not so referring it will be deemed § 507. See Morron v. Bryce, 162 to be intended to be a complete App. Div. 466, 147 N. Y. Supp. 931; defense to all the causes of action. Stroock Plush Co. v. Talcott, 129 Browning, King & Co. v. Terwilliger, App. Div. 14, 113 N. Y. Supp. 214. 144 App. Div. 516, 129 N. Y. Supp. The practice is quite general to 431. introduce the facts " as a defense and ''Each defence in an answer. 10 Abbott's Forms of Pleading For a second defense: " [Here set forth the facts constituting it, except that if any of them have been alleged in the first defense, an express reference to those allegations will suffice instead of a repetition of them.] '^ For a third and partial defense '" to the second alleged cause of action: [Allege the facts constituting it, or by reference as stated above.] For a [first] counterclaim: ^^ which is declared to be a distinct de- fense, must be complete in itself, and must contain all that is necessary to answer the whole cause of action, or that part of it which it professes to answer, either by express allegation, or by a distinct reference to other parts of the answer. Matt v. De- Nisco, 106 App. Div. 154, 94 N. Y. Supp. 380; Douglass v. Phoenix Ins. Co., 138 N. Y. 209; Brookline Nat. Bank v. Moers, 19 App. Div. 155, 45 N. Y. Supp. 997; Sbarboro v. Health Dept., 26 App. Div. 177, 49 N. Y. Supp. 1033. A denial cannot be bor- rowed from some other portion of the answer. Hudson v. Comp. Trans., 169 App. Div. 600, 155 N. Y. Supp. 488. '' Where a separate paragraph of a defense consists of an additional de- fense, having no relation to the defense already set up, it may be stricken out as irrelevant. See De- Ajuria v. Berwind, 127 App. Div. 528, 111 N. Y. Supp. 1029. Or treated as itself setting up a separate defense. See Eells v. Dumary, 84 App. Div. 105, 82 N. Y. Supp. 531. Defenses need not be consistent with each other. Putnam v. Int. Metal Mfg. Co.^ 169 App. Div. 248, 154 N. Y. Supp. 464. 38 See Form 3. '' See note to next Jorm. *> A counterclaim must be plainly alleged as such, and not left to in- ference or pleaded as a defense. See Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324; Rice v. Grange, 131 id. 149; Pratt & Whitney Co. V, Pneumatic Tool Co., 50 App. Div. 369, 63 N. Y. Supp. 1062, aff'd 166 N. Y. 588; Nash v. Weidenfeld, 41 App. Div. 511, 58 N. Y. Supp. 609, aff'd 166 N. Y. 612. If it may be either a defense or counterclaim it will be treated as a defense unless characterized as a counterclaim. Huber Brewery v. Sieke, 146 App. Div. 467, 131 N. Y. Supp. 271. The Code counterclaim embraces a cross cause of action and what was known at common law as a recoup- ment and a set-off. Seibert v. Dunn, 216 N. Y. 237. Where a claim is pleaded as a set-off and no affirma- tive recovery against plaintiff is asked thereon, plaintiff is not pre- cluded by a failure to reply. Am. Guild V. Damon, 186 N. Y. 360; Young V. Stillwater Crushed Stone Co., 153 App. Div. 453, 138 N. Y. Supp. 539. If he replies, however, he will be held to have treated it as a counterclaim. Lehman v. Cores- Martenez Co., 171 App. Div. 852, 157 N. Y. Supp. 647. A counterclaim must be a complete cause of action existing in defendant's Formal Parts of Pleadings 11 [Allege the facts constituting it, or by reference as above stated.] That the matters and things herein alleged arise out of the transaction set forth in the complaint as the foundation of plaintiff 's claim, and are connected with the subject of the action therein alleged." Wherefore, etc., [demand of judgment, as in Form 6]. 12. Answer Setting up Partial Defense. ^^ [N. Y. Code Civ. Pro., § 508.] The defendant, for a [second and] partial defense ^' to favor, and alleged with the same particularity as is required of the complaint. Pease Oil Co. v. Monroe Oil Co., 78 Misc. 285, 138 N. Y. Supp. 177. If it arises out of the same transac- tion or is connected with the subject of action, it is pleadable although it arose after action begun. Gleason "for a valuable consideration" promised, etc.*'^ It is held sufficient to allege that the promise was made "for value received." ** If an instrument is pleaded by copy and contains the words "for value received," this is sufficient; *^ so, also, if it shows mutuality of obligation.^" If the plain- tiff's reciprocal promise furnishes the consideration for de- fendant's obligation, the fact and character of plaintiff's promise should be alleged; or, it is sufficient to allege that it was "mutually agreed." '^ '^ Rosenthal v. Rubin, supra; Feu- Bank v. Watkins, 153 App. Div. 551, erstein v. Germ. Un. Fire Ins. Co., 138 N. Y. Supp. 116. supra; Wright v. Larkin, 91 Misc. ^ Prindle v. Caruthers, 15 N. Y. 573, 154 N. Y. Supp. 961; Ainsworth 425; St. Lawrence Co. Nat. Bank v. V. Acheson Harden Co., supra. Watkins, supra, and cases cited. It is optional with the pleader to Dictum that the complaint may be adopt the statutory or common-law ordered amended on motion to show method of allegation. Marcus Contr. the particular consideration. Prin- Co. V. Weinbras Real Est. Co., supra. die v. Caruthers, supra. ^ Molloy V. Village of Briarcliff *' So held by the Appellate Di- Manor, 217 N. Y. 577; David v. City vision for the first department. Du- Nat. Sec. Co., 174 App. Div. 593, 161 Bosque v. Munroe, 168 App. Div. N.^Y. Supp. 174. 821, 154 N. Y. Supp. 462; Owens 8' It is held by the Appellate Divi- v. Blackburn, 161 App. Div. 827, 146 sion for the first department that N. Y. Supp. 966. such an allegation is a mere conclu- *• Wood v. Knight, 35 App. Div. sion of law, and insufficient upon de- 21, 54 N. Y. Supp. 466. murrer. Neukirch v. McHugh, 165 "' Because a mutual agreement im- App. Div. 406, 150 N. Y. Supp. 1032. plies an offer and an acceptance, or a The precise contrary is held by the promise for a promise, e. g., an alle- Appellate Division for the third de- gation that there was a mutual agree- partment. St. Lawi'ence Co. Nat. ment that defendant should pay 22 Abbott's Forms of Pleading Since consideration is presumed by law to exist, none need be alleged when the action is founded upon a negotiable in- strument, or an instrument shown to be under seal.'^ Continuance.— A state of things once shown to exist is pre- sumed to continue; this rule is applied to pleading, and renders unnecessary an allegation of such continuance.'' So, as to continuance of life; '^ of non-payment; "^ of own- ership.'^ Custom.— A general custom need not be alleged; a local or trade custom must be alleged, and it must also be alleged that the defendant had knowledge or notice of its existence." Damages.— A general allegation, "that plaintiff has been damaged" a specified sum, allows proof of general, as distin- guished from special, damages.'^ Accuracy in stating the specific amount is not necessary,'' nor is the plaintiff required to give particulars of the amount making up his claim of general damage. ""' When damages are presumed, a general allegation as above quoted is enough, and its omission is not fatal; ^^ if not presumed, the facts constituting it must be plaintiff a sum named for superin- 60 N. Y. Supp. 1091, aff'd 167 N. Y. tending the work, includes not only 582. defendant's express promise to pay ™ Crook ;;. Scott, 65 App. Div. 139, but also an implied promise by plain- 72 N. Y. Supp. 516, aS'd 174 N. Y. tiff to serve. Grossman v. Schenker, 520; contra, Martin v. Palmer, 156 206 N. Y. 466. App. Div. 327, 141 N. Y. Supp. 396. '2 Sprague v. Sprague, 80 Hun, 285, "' See Leach v. Hughes, 74 Misc. 30 N. Y. Supp. 162; Vulcan Iron 69, 131 N. Y. Supp. 570, and cases Works V. Pittsburgh-Eastern Co., cited. 144 App. Div. 827, 129 N. Y. Supp. ^ On the other hand, an allegation 676. A bill of particulars of con- of special damages, without an addi- sideration, when presumed, cannot tional averment of general damages, be required. Hague v. Nor. Hotel will limit plaintiff to proof of the Co., 77 Misc. 142, 135 N. Y. Supp. particular or special damages so 1047. alleged. Goldman v. Gainey, 67 '3 Johnson v. Manh., etc., Corp., App. Div. 330, 73 N. Y. Supp. 738. 162 App. Div. 753, 147 N. Y. Supp. » Boeck v. Smith, 85 App. Div. 1087; Persons v. Gardner, 42 App. 575, 83 N. Y. Supp. 428. Div. 490, 69 N. Y. Supp. 463. i«« Huber Brewery v. Sieke, 146 '< Franklin v. Beegle, 102 App. Div. App. Div. 467, 131 N. Y. Supp. 271. 412, 92*N. Y. Supp. 449. "i Hubbard v. Richardson, 31 App. ^ « Ahr V. Marx, 44 App. Div. 391, Div. 520, 52 N. Y. Supp. 35. See note 72, supra. Common Allegations 23 alleged and an allegation that such acts have or will produce loss and damage is insufficient.^"^ Forms for allegation of special damage are given through- out the following chapters. Where the damages are unhquidated, defendant's denial of plaintiff's allegation raises no issue of fact, but necessi- tates an assessment. ^"^ Allegations that irreparable damages will be suffered, and that no adequate remedy at law exists, are mere conclu- sions 104 Duly.— When used with reference to procedure regulated by law, this word is given the force of "done according to law" or "done according to the statute governing the sub- ject." ^"^ This relates to substance as well as to form. '°* Similar force has at times been given to it when used with reference to matters outside of statutory regulation.^"' "12 Hotel Claridge Co. v. Rector, 164 App. Div. 185, 149 N. Y. Supp. 748. i»3 Lewis V. City Realty Co., 158 App. Div. 733, 143 N. Y. Supp. 1026. '°* Ehrich v. Grant, 111 App. Div. 196, 97 N. Y. Supp. 600; Goldman v. Com, 111 App. Div. 674, 97 N. Y. Supp. 926; Kienle v. Gretsch Realty Co., 133 App. Div. 391, 117 N. Y. Supp. 500. '"^ It implies the existence of every fact essential to perfect regularity of procedure. Brownell v. Town of Greenwich, 114 N. Y. 518. Failure to deny that a corporation resolution was "duly adopted" pre- cludes defendant from questioning its validity. Maune v. Unity Press, 143 App. Div. 94, 127 N. Y. Supp. 1002. So, an admission that an execution was duly issued and duly presented renders unnecessary proof of the rendition of the judgment and return of execution as required by Code Civ. Pro., § 1391. Reynolds v. Harlem Const. Co., 71 Misc. 446, 128 N. Y. Supp. 642. An admission of the allegation that a foreign corpo- ration plaintiff was duly authorized to do business in the State requires the court to assume its procurement of the statutory certificate. United Building Material Co. v. Odell, 67 Misc. 584, 123 N. Y. Supp. 313. '™ Maune v- Unity Press, supra; Levy V. Cohen, 103 App. Div. 195, 92 N. Y. Supp. 1074. "" An admission of an allegation that a contract was "duly made" precludes defendant from proving that its agent had no authority to make it. Sims v. Parson, 162 App. Div. 426, 147 N. Y. Supp. 769. "Duly assigned" requires the court to assume the existence of a new written guaranty accompanying the assignment. Levy v. Cohen, 103 App. Div. 195, 92 N. Y. Supp. 1074. An allegation that a note was "duly indorsed" defeats a demurrer di- rected to the validity of the indorse- ment. Youngs V. Perry, 42 App. Div. 247, 59 N. Y. Supp. 19. 24 Abbott's Forms of Pleading Its meaning, however, cannot be extended to cover a necessary lapse of time after the performance of the act.'"* Excuse for Non-performance.— The facts constituting such excuse must be alleged, as well as the further allegation that the party was ready and able to perform and would have done so except for the acts of the other party. '°^ Excuse for non-performance is not admissible under an allegation of performance."" A mere allegation "that plaintiff duly per- formed all the conditions in his part except such as were excused or waived by defendant," or "that defendant waived performance by plaintiff of " {statingwhat act) is insuflScient."^ Identity of Parties, Contracts, etc.— It should be expressly alleged that the parties are the same parties, or that the contract is the same contract, mentioned in the preceding pleading; identity of names, dates, or subject-matter does not of itself suffice."^ Indebtedness.— An allegation that a sum "is due and ow- ing" is a mere legal conclusion, in the absence of an allegation of the facts estabUshing the indebtedness; "^ it may, how- ever be construed as alleging non-payment."* Incompetency.— An allegation that a person was at a speci- fied time "of unsound mind" is an allegation of a pleadable 'fact."5 Insolvency. — An allegation that at a specified time a person was "insolvent" is an allegation of a pleadable fact."^ ins First Bank v. Casualty Co., 176 ""Stem v. McKee, supra; see also App. Div. 109, 162 N. Y. Supp. 349. cases oited in notes to- Form 296. '""Stern v. McKee, 70 App. Div. "' See below under "Waiver." 142, 75 N. Y. Supp. 157. "= Fletcher v. McGinniss, 168 App. A condition such as that a cer- Div. 225, 153 N. Y. Supp. 581. tificate shall be procured from a third "' Cash v. Am. Specialty Co., 157 party is excused when its procure- App. Div. 729, 142 N. Y. 'Supp. ment is rendered impossible by acts 767. other than those of the contracting '"Wallach v. Dryfoos, 140 App. party, or where it is unreasonably Div. 438, 125 N. Y. Supp. 305. withheld or refused. See N. Y., etc., "' Riggs v. Am. Tract Society, 84 Co. V. Andrews, 62 App. Div. 8, N. Y. 330. 70 N. Y. Supp. 798, aff'd 173 N. Y. "« CampbeU v. Heiland, 55 App. 25. Div. 95, 66 N. Y. Supp. 1116. Common Allegations 25 Knowledge.— It may be directly alleged, without detail as to source or character, that a party "had knowledge" of a fact."^ Non-payment.— The necessity of the allegation, in order to show defendant's breach, has already been treated.''* An allegation that "no part of said sum has been paid, except the sum of , " is in the accepted form. It is sufficient, however, to allege payment was not made on the contract day.'" After alleging the facts establishing the indebtedness, an allegation that the amount is "due" or "owing" is equiva- lent to an allegation of its non-payment.'^" Ownership.— An allegation that a party "is the owner" of property, real or personal, sets forth a pleadable fact. But to allege "that by reason of the aforesaid" (or, "hereinafter alleged") "facts, plaintiff is the owner, of," or, "is vested with title to" specified property, makes the allegation of ownership or title a mere conclusion of law, based upon the sufficiency of the facts referred to.'-' An allegation that one "is entitled to" property, or its possession, is a mere conclusion of law.'^^ Ratification.— It is permissible to allege that a person rati- fied an act, as a pleadable fact.'^' Statutes.— A pubUc statute of the State need not be referred '" Nor will the sources or character N. Y. Supp. 396; Masterson v. Towns- of the information be ordered dis- hend, 123 N. Y. 458; Williamson v. closed through a bill of particulars. Wager, 90 App. Div. 186, 86 N. Y. Hamilton v. Am. Vote Machine Co., . Supp. 684; Cornell v. Savage, 49 24 App. Div. 544, 49 N. Y. Supp. ' App. Div. 429, 63 N. Y. Supp. 540; 595. Seacord v. Pendleton, 55 Hun, 579, 9 "»See note 70, supra. N. Y. Supp. 46; Turner v. White, 73 "9 Ahr V. Marx, 44 App. Div. 391, Cal. 299. 60 N. Y. Supp. 1091, afif'd 167 N. Y. "2 Sheridan v. Jackson, 72 N. V. 582. 170; Garner v. McCullough, 48 Mo. 1^ Wallach v. Dreyfoos, 140 App. 318; Brown v. Phillips, 71 Misc. 239, Div. 438, 125 N. Y. Supp. 305. 130 N. Y. Supp. 841. '21 Hunter v. WiUard, 176 App. i=» PoUitz v. Wabash R. R. Co., 207 Div. 204, 162 N. Y. Supp. 364; Mar- N. Y. 113. tin V. Palmer, 156 App. Div. 327, 141 26 Abbott's Forms of Pleading to in a pleading.12* A private statute must be pleaded, but only by brief reference.^" A foreign statute must be pleaded as a fact.^^* Tender.— When defendant's obligation is concurrent with an obligation on plaintiff's part to do some act, plaintiff in an action at law must allege and prove a tender of perform- ance before action brought, and a tender at the trial is in- sufficient.^" But a tender may be excused by defendant's prior repudia- tion of the agreement, commxmicated to plaintiff.^^' An allegation that defendant "repudiated the agreement" is not sufficient; the facts showing the repudiation, and that such repudiation was wrongful, must be alleged. ^^' Waiver.— An allegation "that defendant waived," stating what, constitutes a mere conclusion of law and is ineffec- tive."" If the facts- showing a waiver are alleged, it is not necessary that a waiver be specifically charged."^ Proof of a waiver of performance is not competent under an allega- tion of performance."^ 1" See Shattuck v. Guardian Trust "9 Rogg „. Bristol, 174 App. Div. Co., 145 App. Div. 734, 130 N. Y. 15, 160 N. Y. Supp. 335. See, also^ Supp. 658 (rev'd on another point in Baby Show Exhib. Co. v. Crowell 204 N. Y. 200). Pub. Co., 174 App. Div. 368, 161 "5 Code Civ. Pro., § 530, providing N. Y. Supp. 205; Riegal Sack Co. that it is sufficient to designate the v. Tidewater Port. Cement Co., statute by its chapter, year of passage supra. and title, or in some other manner No general form for alleging repu- with convenient certainty, without diation may be given, but various setting forth any of its contents. forms covering different situations "« See Chapter XLIX, Pleading will be found among the precedents A Foreign Law. . under different subjects. 1" McCammon v. Kaiser, 218 N. Y. "» Sasse v. Order of Com. Trav., 46 (agreement by defendant to pay a 168 App. Div. 746, 154 N. Y. Supp. specified sum for a release from plain- 658; Todd v. Un. Cas. & Surety Co., tiff). See, supra, Conditions Con- 70 App. Div. 52, 74 N. Y. Supp. 1062; CURRENT. Glazer v. Home Ins. Co., 48 Misc. '» Marx V. Talking Doll, etc., Co., 515, 96 N. Y. Supp. 136 (aff'd 113 96 Misc. 591, 160 N. Y. Supp. 861; App. Div. 235, rev'd 190 N. Y. 6, on Reed v. Prov., etc., Soc, 190 N. Y. another ground). HI; Riegal Sack Co. v. Tidewater "'Glazer v. Home Ins. Co., 190 Port. Cement Co., 95 Misc. 202, 158 N. Y. 6. N. Y. Supp. 954. "2 Cases sMpro. CHAPTER II DESIGNATION OP PARTICULAR CLASSES OF PERSONS, AND ALLEGATIONS SHOWING OFFICIAL CHARACTER OR CAPACITY TO SUE AND BE SUED, AND TITLE TO THE CAUSE OP ACTION PAGE I. General instructions as to naming the parties 30 II. A party suino or sued on behalf of himself and others. 19. Commencement of complaint by one suing as representing also others of the same class 34 20. The same; another form 36 21. A defendant sued as a representative of a class 37 22. By a common informer 37 III. Assignees and others holding derivative title. 23. Allegation of assignment of specific claim or contract, or property 38 24. Several assignees holding fractional claims ■■.... 40 25. Where assignee sues to enforce collateral security ....... 40 26. Jfesignment of a contract which was not assignable with- out consent 41 27. Allegation of assignment in those jurisdictions where writing or consideration must be alleged 41 28. The same, where action is brought in United States court on the ground of different citizenship 41 29. By assignee of foreign corporation 42 30. By equitable assignee, under accepted order for money to become due on a contract afterward performed 42 31. By assignee for benefit of creditors, suing as such 43 32. By substituted assignee for benefit of creditors 45 33. By assignee under State Insolvent Law 46 34. Allegation that plaintiff is a foreign official assignee 47 35. By assignee, for money loaned, of salary or wages, against employer .' 47 36. By plaintiff, the devisee 48 37. By plaintiff, the heir at law 48 38. By plaintiff, the legatee or next of kin 48 IV. Associations (unincorporated). 39. Allegations in action brought by a voluntary association in name of officer 49 40. The same, against an association in name of officer. . . . 51 27 28 Abbott's Fobms of Pleading V. Bankbbs (individual). page 41. By or against an individual banker doing business under name of a bank 52 VI. Corporations. 42. By or against a corporation at common law 53 43. General allegation of corporate capacity in States having statutory requirements 54 44. By or against a domestic corporation under New York statute 54 45. The same, by or against a foreign corporation 55 46. By foreign corporation plaintiff, allegation of authority to sue in New York State 66 47. The same; another form 59 48. Against consolidated corporation 59 49. Against reorganized corporation 59 60. Against corporation whose name has been changed by statute ' 60 51. The same, change by court order 61 52. Allegation of objects of corporation, to show corporate power 61 53. Allegation of grant of special corporate powers 62 54. By or against a county in the State of New York 63 55. By or against a New York city, town or village 63 56. By or against a board, or other body, made a corporation by statute 63 57. By a public body given the right by statute to sue 64 58. Against municipal corporation where statute requires pre- vious notice and demand 64 59. The same; excuse for not presenting within statutory period 65 VII. Executors and administrators. 60. By executor or administrator where he sues in his own right 66 61. Plaintiff suing as administrator 67 62. Plaintiff suing under Umited letters 69 63. Defendant sued as administrator 69 64. Plaintiff suing or sued as executor 72 65. Against a person individually and as representative 73 66. Allegations of revivor and continuance of action by rep- resentatives 73 67. Allegation of probate of will and granting of letters by special officer acting in absence of surrogate 74 68. Defendant, an administrator with the will annexed 75 69. Plaintiff suing as administrator de bonis non 75 70. Allegation of co-executor's refusal to join 76 71. Plaintiff suing as ancillary executor 76 72. Plaintiff suing as ancillary administrator 77 Designation of Particular Persons 29 PACE 73. Allegation of appointment as administrator by foreign court 78 74. Against an executor de son tort 78 VIII. Husband and wipe. 75. Husband and wife as plaintiffs 79 76. Against husband and wife, on debt of wife contracted before marriage, where the husband has by ante-nuptial agreement acquired separate property of the wife 80 77. The same, where the husband after marriage has acquired property which before marriage was the property of the wife 80 78. The same, where the husband has acquired that which became the wife's separate property after marriage 81 IX. Infants. 79. By infant plaintiff, showing appointment of guardian ad litem 81 80. The same, a shorter form 83 81. Plaintiff suing as general guardian 83 X. Jurisdictional allegations in case op citizens, aliens, etc. 82. Allegation in action between citizens or corporations of different States, on a common-law cause of action in a United States court 83 83. The same, in an equity suit in United States court 84 84. The same, by alien against citizen on a common-law cause of action in a United States court 85 85. The same, by alien against citizen in United States court in equity suit 86 86. Allegation of residence of defendant when necessary to give jurisdiction to court of limited jurisdiction 86 XI. Lunatics (incompetent persons). 87. By committee of an incompetent (lunatic, idiot or habitual drunkard) under the New York statute 87 88. Against such committee 89 89. Appointment of committee of life convict 90 XII. Married women. ' 90. Marriage and separate estate of plaintiff 90 91. The same, in an action other than upon a contract for the payment of money only 91 92. Action in equity to charge separate estate of married woman 93 93. Action at law against married woman upon her contract made for the benefit of her separate estate, or expressly charging the same 94 30 Abbott's Forms of Pleading XIII. PaETNEES. ^ PAGE 94. By or against partners 95 95. By or against a surviving partner 96 96. Against representative of deceased partner 98 , 97. Allegation of successor firm, acquiring assets of prior firm 98 98. Allegation that defendant partner has succeeded to assets and assumed debts 98 XIV. Principal and agent. 99. By or against undisclosed principal 99 100. By agent, as trustee of an express trust . . , -. 99 101. Against agents on their assumption of personal liability. . 100 XV. Public officers. 102. By or against a single officer in his. official capacity 100 103. By attorney-general on the relation of a person having an interest in the question 102 XVI. Receivers. 104. By receiver appointed pending litigation 102 105. By receiver of a corporation appointed in a judgment creditor's action for the sequestration of corporate property 103 106. By temporary receiver of a corporation appointed pending proceedings for its voluntary dissolution 105 107. By receiver appointed in supplementary proceedings 105 108. By successor or substituted receiver 107 109. Against receiver in bankruptcy 107 110. By foreign receiver of foreign corporation seeking to reduce to possession the assets of the corporation in this State . . 108 111. By ancillary receiver of foreign corporation 109 XVII. Stockholders. 112. Allegation in action in State' court, brought by stockholder suing in the interest of the corporation because the directors will not sue 109 112a. The same, in United States court. 112 XVIII. Trustees. 113. By testamentary trustee 112 114. By successor or substituted trustee 113 115. By trustee in bankruptcy 113 I. GENERAL INSTRUCTIONS AS TO NAMING THE PARTIES [See also, the forms which follow in this chapter.] Individual Name.— Do not use a mere initial for the first name; if there is doubt as to which of several names having Designation of Particular Parties 31 any difference in sound is the correct one, use both, inserting the words "otherwise known as" between them. To secure a judgment binding the defendant and his property, ascer- tain, if practicable, correct speUing.^ If plaintiff is doing business under a trade name, it is not necessary that the summons or complaint should disclose it.- OflBcers.— If desired to bind a public officer as such, and his successors, ascertain true legal name of office. Insert "as" after individual name and add name of office.^ Representative Capacity.— If desired to bind the estate or fund represented, insert "as," and define the capacity, thus, "John Smith, as executor of the last will and testament of M. N., deceased."^^ Infant Plaintiff.— Have -guardian ad litem appointed before suing. ^ Name the infant plaintiff as suing by guardian, as thus, "John Smith, an infant, by Richard Smith, his guardian ad litem, plaintiff." Infant Defendant.— Name without regard to infancy; guardian ad litem appointed after issue and service of sum- mons." ' 1 Abb. Pr. & Forms, 2d ed., p. complaint is demurrable which states 623. . a cause of action against the defend- " Grossman v. Lieb, 126 App. Div. ant in a representative capacity only, 348, 110 N. Y. Supp. 386. but' who is named in the summons ' See next note. only individually. Leonard v. Pierce, 'Without the "as" the added 182 N. Y. 431. (Some exceptions words are considered merely de- exist, however. See, for example, scriptio personce. Genet v. DeGraaf, Cassidy v. Sauer, 114 App. Div. 27 App. Div. 238, 50 N. Y. Supp. 673, 99 N. Y. Supp. 1026, aff'd 189 442. Persons suing or being sued in N. Y. 540.) The omission of the their official or representative capac- word "as" is not fatal where the ity are usually in contemplation of allegations of the pleading show that law, distinct persons, and strangers the plaintiff sues in a representative to any right or liability as individuals, character only. Willets v. Underbill, Taggart v. Draz & Co., 166 App. 96 App. Div. 5, 88 N. Y. Supp. 1060, Div. 381, 160 N. Y. Supp. 41; Fisher aff'd 182 N. Y. 543. So, also, in case V. Johnson, 90 Misc. 46, 152 N. Y. of a defendant. Graham v. Lawyers' Supp. 944; Williams v. Fischlein, 144 Title Ins. Co., 20 App. Div. 440, 46 App. Div. 244, 129 Nl Y. Supp. 189; N. Y. Supp. 1055. Johnson v. Phoenix Bridge Co., 133 ' 1 Abb. Pr. & Forms, 2d ed., App. Div. 807, 118 N. Y. Supp. 88, p. 587. mod. 197 N. Y. 316. Therefore a « 1 id. 833. 32 Abbott's Forms of Pleading Married Woman.— If sued with the husband it is the prac- tice to name thus, "John Smith, and Mary Smith, his wife." ^ If suing or sued in action affecting her separate property, name her alone.^ Divorced Woman.— Designate by given name, and sur- name acquired by marriage, unless she has resumed her former name or gained another by repute. In case of doubt use both, inserting between them the words "otherwise known as." ^ Unknown Name.— If name is wholly unknown, use ficti^ tious name, adding any appropriate description, as "John Doe, said name being fictitious, the person intended being the man in command of the sloop Hornet," or "the infant son of Robert Doe and Mary, his wife." If partly unknown indicate it as nearly as practicable, thus, "John S. Smith, the name John being fictitious, the first name being im- known to plaintiff, said defendant being a partner of the defendant Robert Fox in the firm of Fox & Smith." ^^ Unknown Persons.— Designate as thus, "John Smith, if living, and his wife, if any, her name being unknown to plaintiff, and the widow, devisees and heirs at law of said John Smith, if he be deceased, who are also unknown to plaintiff." " Corporation.— Ascertain the exact legal name, for the popu- lar name is sometimes so different that a judgment in that name would embarrass. Do not assume, from the mere fact that persons use a company name, that they are a cor- poration and can be so sued.^^ Even after dissolution, a corporation exists for the purpose of suing or being sued upon existing claims. ^^ Partnership.— Name each partner." But a dormant part- ner may be omitted as defendant, except where he was 'lAbb.Pr.&Forms, 2ded.,p.624. "Cunningham v. Glauber, 133 «N. Y. Code Civ. Pro., § 450. App. Div. 10, 117 N. Y. Supp. 866. ' 1 Abb. Pr. & Forms, 2d ed., p. 624. w Regardless of whether all can be '" 1 id. 625, 631. served with process. Wildrick v. " Id. 626, 631. Heyshem, 96 App. Div. 515, 89 N. Y. '2 Id. 627. Supp. 78. Designation of Particular Parties 33 known to be a partner when the firai made the contract on which the partners are sued; a special partner must be omitted except to charge him personally in case of violation of the statute; and if a partnership consists of seven or more the president or treasurer may be named, as such, instead of the members, if it is only desired to have execution against the associate personal property.'"' Association.— An unincorporated association of seven or more, may for most purposes sue or be sued by the name of their president or treasurer, as thus, "John Smith, as president of the Whiteacre Athletic Club;" " or if there is no such office as president or treasurer, then designate an officer of like functions. Amending or Adding Name.— If reliable information is not obtained before service, ascertain afterward if the name used needs amendment or if others should be added, and if so obtain leave to amend." You can examine a defendant to ascertain. '^ Sealed Instrimient.— An action upon may only be brought by the parties named therein.'* Undisclosed Principal.— May sue or be sued upon a con- tract not under seal, as though he were a party named therein.^" Agent for Undisclosed Principal.— May sue or be sued as 1* 1 Abb. Pr. & Forms, 2d ed., element of personal trust and con- p. 626. fidence involved. See Moore v. >« 1 id. 628. N. Y. Code Civ. Pro., Vulcanite Portland Cement Co., 121 § 1919. App. Div. 667, 106 N. Y. Supp. 421; " 1 id. 704; 2 id. 1632. Wasserman v. Bacon, 80 App. Div. '» 1 id. 704. 505, 81 N. Y. Supp. 193; Henderson, ■"Case V. Case, 203 N. Y. 263; etc., Co. v. McNally, 48 App. Div. Peterson v. City of N. Y., 194 N. Y. 134, 62 N. Y. Supp. 582, aff'd 168 437; Spencer v. Huntington, 183 id. N. Y. 646; Langstroth v. Turner 506; Porter v. Baldwin, 139 App. Lumber Co., 162 App. Div. 818, 148 Div. 278, 123 N. Y. Supp. 1043; N. Y. Supp. 224. Stanton v. Granger, 125 App. Div. The rule has no application to 174, 109 N. Y. Supp. 134 (rule ap- promissory notes. Ranger v. Thai- plied in an equitable action). man, 84 App. Div. 341, 82 N. Y. ™ This is the general rule, but some Supp. 846, aff'd 178 N. Y. 574. exceptions exist, based mainly on the 34 Abbott's Forms of Pleading though the principal.^' " But agent and principal cannot both be held. 22 Joint Obligors.— Name all who are Uving.^^ If the surviv- ing joint obUgors are insolvent, the estate of a deceased joint obligor may be sued in equity (or at law in New York, under Code Civ. Pro., § 758), but the insolvency of the survivors, or their inabiUty to pay, must be alleged.^^ Joint and Several Obligors.— The personal representatives of a deceased obligor may be joined with the surviving obUgors.25 Formal Parties in Equity Actions. — If a good cause of ac- tion is stated against one defendant, then a good cause of action is also stated against all other defendants whose presence is necessary to enable the court to give full and complete relief. ^^ II. A PARTY SUING OR SUED ON BEHALF OF HIM- SELF AND OTHERS 19. Commencement by One Suing as Representing also Others of the Same Class. ^^ [Sustained, Cochran v. American Opera Co., 20 Abb. N. C. "N. Y. Code Civ. Pro., §449; Third Nat. Bank v. Graham, 174 Middleton v. Wohlgemuth, 141 App. App. Div. 503, 161 N. Y. Supp. 159. Div. 678, 126 N. Y. Supp. 734. Even " Potts v. Dounce, 173 N. Y. 335. though the other party knew he was ^s County of Erie v. Baltz, 125 App. acting as the agent for some one. Div. 144, 109 N. Y. Supp. 304. Good V. Rumsey, 50 App. Div. 280, ^ Gavazzi v. Dryfoos, 47 Misc. 15, 63 N. Y. Supp. 981. Even though 95 N. Y. Supp. 199. concealment was because principal " Under Code procedure this prac- believed the disclosure might be tice is available in actions of a legal prejudicial. Reilly A. B. Co. v. as well as those of an equitable Barber A. P. Co., 211 N. Y. 68. nature. Piatt v. Colvin, 50 Ohio St. " Rosenweig v. Raubitschek, 166 703, 36 N. E. Rep. 735. App. Div. 448, 150 N. Y. Supp. 353. In equity it is allowable in three 2' Natter v. Blanchard Co., 153 classes of cases: "(a) Where the ques- App. Div. 814, 138 N. Y. Supp. 969. tion is of a common or general in- But bankruptcy or absence from terest, and one or more sue or defend jurisdiction excuses joinder if such for the benefit of the whole; (b) where bankruptcy or absence is alleged. the parties constitute a voluntarv CAPAcfi-Y TO Sue or be Sued, etc. 35 114, 25 N. Y. Supp. (U. S.) 288, 302.] [Title of court] 426; Smith v. Swormstedt, 16 How. A. B., on behalf of himself and all other [stockholders of the -'Company], plaintiff,) against Y. Z. [etc.], defendants. The plaintiff above named complains for himself [or, the plaintiffs above named complain for themselves] and on behalf of all other [here designate the class, e. g. — creditors of M. N.; or, creditors of M. N., who are parties to the deed of trust hereinafter mentioned; or, holders of the common stock of the Y. Z. Company; ^^ or, otherwise as the case may association for public or private pur- poses, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; and (c) where the parties are very numerous, and though they have or may have separate and distinct inter- ests, yet it is impracticable to bring them all before the court." Story's Eg. PI., § 97; approved in Smith v. Swormstedt, 16 How. (U. S.) 288, 302. Whether such representation shall be allowed in any particular case is a question of judicial convenience. Harvey v. Harvey, 4 Beav. 215, 220. Caution necessary. Ffooks v. S. W. R. Co., 1 Sm. & G. 142, 17 Jur. 335; Smith V. Swormstedt, 16 How. (U. S.) 288, 305. The other parties are pre- sumed to consent until their disap- proval appears. Flint v. Spurr, 17 B. Mon. (Ky.) 499. The effect of suing in this represen- tative way is, so far as others of the same class are concerned, to offer to them an option of joining in the litigation; it is improper to join the others as defendants merely because they are of the class with plaintiff and without alleging any adverse par- ticipation or interest in the subject- matter. See McCrea v. Robinson, 192 N. Y. 150, where in a stock- holder's action against corporate offi- cials for misconduct, plaintiff made the other stockholders defendants and their demurrers were sustained. ^ Absence of such designation was criticized in Cochran v. Am. Opera Co., 20 Abb. N. C. (N. Y.) 114, as a defect of form. ^'A creditor or stockholder may sue on behalf of himself and the others without showing that the others are so numerous as to render it impracticable to join them. Such a representative action is required when a pro rata liability is to be as- certained and enforced, such as the stockholders' liability to the corpora- tion's . creditors. See Hirshfield v. Fitzgerald, 157 N. Y. 166. In such an action it is not necessary to allege or prove that there are many other creditors. In such actions it is the character 36 Abbott's Forms of Pleading be, and if the interest be several, as in case of creditors or stock- holders, may add, who shall come in and contribute to the expense of this action] '" and alleges [or, allege] : [Where the right to sue in the representative capacity so de- pends, allegations must show that the question is one of a com- mon and general interest of many persons.] [Or that others who might be made parties are too numerous to be joined; as thus]: I. That the question which is the subject of this action is one of common and general interest to all [the holders of the common stock of the said defendant company]. Or: That, as plaintiff is informed and believes, the holders of said preferred stock are very numerous and exceed [two hundred] " in number, and many of them are not residents of this State, and the names of some of them are unknown to the plaintiff and cannot with due diligence be ascertained by him; and it is, therefore, impracticable to bring them all before the court. '- [Allege cause of action.] 20. The Same — ^Another Form.'' A. B., President and Stockholder of the United States Express/ Company, plaintiff, against W. X. and Y. Z., defendants. Plaintiff alleges that the United States Express Company of the interest, not the number of murrer in Brock v. Poor, 167 App. persons interested, which permits the Div. 784, 153 N. Y. Supp. 332. representative action. See Hilton ^^ One hundred and forty is an im- Bridge Const. Co. v. Foster, 26 Misc. practicable number. Mann v. Butler, 338, 57 N. Y. Supp.- 140, aff'd 42 App. 2 Barb. Ch. (N. Y.) 376; thirty-five Div. 630, 59 N. Y. Supp. 1106. are not too numerous to join; Kirk v. '" If no one joins before interlocu- Young, 2 Abb. Pr. (N. Y.) 453; nor tory judgment, the single plaintiff forty partners. Brainard v. Betram, may withdraw or settle the action, as 5 Abb. N. C. (N. Y.) 102. he pleases. See Hirshfield v. Fitz- From the complaint in Thompson gerald, 157 N. Y. 166. v. Erie Ry. Co., 45 N. Y. 468. "To allege that the number i^ "Sustained in Piatt v. Colvin, 50 "great" held sufficient against de- Ohio St. 703, 44 Am. & Eng. Corp. Capacity to Sue or be Sued, etc. 37 is a joint-stock association, duly organized in the year A. D. 18 , under the laws of the State of New York, and ever since existing and doing business as such, and consists of about shareholders, owning , shares, all of which persons have a joint ownership and interest in the cause of action hereinafter set 'forth, but are too numerous to be joined as parties plaintiff; and, further, that, by the laws of the said State of New York ^'' under which said express company was organized and now exists, it is authorized and empowered to sue in the name of its president, and the said A. B. is president of the said United States Express Company, and a stockholder therein; and as such brings this suit in be- half of said association, and all the stockholders thereof. 21, A Defendant Sued as a Representative of a Class.^^ That the [holders of trust certificates] are over in number; that it is therefore impracticable to bring them all before the court; that the said Y. Z. is a [holder of one or more of said certificates] and is made defendant as the repre- sentative of all the [holders of said certificates].'^ 22. By Common Informer. [Name of court.] A. B., plaintiff, against Y. Z., defendant. A. B., the plaintiff '^ above named, complains as well for Cas. 637, 36 N. E. Rep. 735, under sued is numerous, as for instance, the statute providing that one or an unincorporated association whose more may sue or defend for the members are all liable, some officer or benefitof all when the matter is one of member may be made defendant as a common or general interest of many the representative of the class. Bos- persons, or when the parties are very sert v. Dhuy, 166 App. Div. 251, 151 numerous and it is impracticable to N. Y. Supp. 877. bring them all before the court. This ^ Adapted from Havermeyer i<. latter provision applies to common- BrooklynSugar Refining Co., 26 Abb. law as well as to equitable causes of N. C. (N. Y.) 157, 13 N. Y. Supp. action. See notes to preceding form. 873. See notes to Form 19. " N. Y. Code Civ. Pro,, § 1916. " It has been held that a corpora- ^* Where the class which may be tion cannot maintain an action to 38 Abbott's Forms of Pleading the People [or, for the overseers of the poor of the town of and county of ; '^ or, otherwise according, to statutory provisions] as for himself, and alleges: '' III. ASSIGNEES "> AND OTHERS HOLDING DERIV- ATIVE TITLE 23. Allegation of Assignment of Specific Claim, or Con- tract, or Property, to Plaintiff." [State cause of action accrued to, or contract made with, or ownership of property by, the assignor.] App. Div. 200, 45 N. Y. Supp. 973, N. Y. Code Civ. Pro., § 756. Of course an assignment to a bona fide assigile'e is subject to all the equities available against the assign- or. Jermyn v. Searing, 170 App. Div. 707, 158 N. Y. Supp. 718. ■" The assignable character of the contract may be raised by a demurrer to the complaint. See Brumm v. Gil- bert, 50 App. Div. 430, 64 N. Y. Supp. (special guaranty) ; Nassau Hotel Co. ■I/. Barnett, etc., Co., 162 App. Div. 381, 147 N. Y. Supp. 283 (lease). That an allegation of assignment is necessary, and presents an issuable fact, see Huges v. Brewer, 7 Colo. 583; Prindle v. Caruthers, 15 N. Y. 426; White v. Brown, 14 How. Pr. (N. Y.) 282; Adams v. Holly, 12 id. 330. It is not enough to merely al- lege that plaintiff is the owner of the claim. He must show how he ac- quired it. Gallup V. Lichter (Col., 1894), 35 Pacific Rep. 985; Thomas v. Desmond, 12 How. Pr. (N. Y.) 321; Adams v. HoUey, id. 326; Russell v. Clapp, 7 Barb. (N. Y.) 482; Bentley V. Jones, 4 How. Pr. (N. Y.) 202; McMurray v. Gifford, 5 id. 14; Parker V. Totten, 10 id. 233. Consideration is not essential to the validity of an assignment in order to enable the assignee or transferee to sue thereon and need not be alleged. Hunter v. recover a penalty under a statute authorizing any person to sue in his own name. Sportsman's Club v. Miller, 7 Lans. (N. Y.) 412. '* There is a class of similar cases where by statute an individual is authorized to sue in the name of pub- lic officers or boards in case of their failure or neglect to do so. In such cases it is the common method to en- title action: "A. B., Overseer of the Poor, on relation of Y. Z., against F. W." See Sutter ex rel. Reeve v. Pauble, 25 Hun (N. Y.), 195. *' If the statute gives the action to certain persons, and, in case they neglect to prosecute within a speci- fied time, then to other persons, the complaint by one of the latter class must allege neglect of those of the former class to prosecute within the statutory time. Morrell v. Fuller, 7 Johns. (N. Y.) 402. ■"• The assignor, who has parted with his entire title cannot bring the action. Whiting v. Glass, 217 N. Y. 333. Such assignor is not a proper party plaintiff, and if joined a de- murrer for misjoinder will lie. Alex- ander V. City of Gloversville, 110 App. Div. 791, 97 N. Y. Supp. 798. If the assignment is made after action begun, the action may be continued in the name of the original plaintiif. Dempsey v. McKenna, 18 Capacity to Sue or be Sued, etc. 39 That on or about the day of ,19 ,^^ the said [assignor] duly assigned ^^ [ dollars of the moneys due upon] " the said claim [or, said contract, and all his rights thereunder, ^° or, said policy, etc.*^ or, all his right, title and interest in said {property) and h*is right of action for the conversion thereof.] *'' to the plaintiff. ^^ [An allegation of notice to defendant is unnecessary.] '"' Allen, 103 App. Div. 557, 94 N. Y. Supp. 880; Brown v. Powers, 53 App. Div. 251, 65 N. Y. Supp. 733; Sheri- dan V. Mayor, 68 N. Y. 30; Burtnett V. Gwynne, 2 Abb. Pr. (N. Y.) 79; Clarke v. Downing, 1 E. D. Smith (N. Y.), 406; Vogal v. Babcock, 1 Abb. Pr. (N. Y.) 176; Martin v. Kanouse, 2 id. 330. The fact that the assignee is acting for the benefit of the assignor, or another, is immaterial if the assignment vests him with full legal title. See Sheridan v. Mayor, 68 N. Y. 30. The assignee of a person with whom a contract is made for the benefit of another may sue as a trustee of an express trust in ease his assignor could have so sued. See Osborne v. Hughes, 128 App. Div. 128, 112 N. Y. Supp. 572. A claim in tort for injuries to prop- erty is assignable. Keeler v. Dun- ham, 114 App. Div. 94, 99 N. Y. Supp. 696 (fraud and deceit). Plaintiff must be held strictly to establishing the claim as alleged, for it is that claim only of which he alleges a transfer of title. Hughes v. Smithes, 23 App. Div. 590, 49 N. Y. Supp. 115, aff'd 163 N. Y. 553. " The date of the making of the assignment must be alleged, or a motion will lie to compel the com- plaint to be made more definite and certain by stating such date. Wor- den V. Ranger, 136 App. Div. 936, 121 N. Y. Supp. 271. ■" It. is sufficient to aver that such contract was duly assigned. Such an averment sufficiently imports that whatever was necessary to consti- tute a valid assignment was done, bevy V. Cohen, 103 App. Div. 195, 92 N. Y. Supp. 1074. ** A valid assignment of a part of an entire debt or obligation can be made, the assignee suing in equity and making the assignor, as well as the debtor, a party (Chambers v. Lancaster, 160 N. Y. 342). See Form 24, and notes. ■" Any executory contract, not necessarily personal in its character, which can, consistently with the rights and interests of- the adverse party, be sufficiently executed by the assignee is assignable. See N. Y. Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 291. ^' The allegation should be that the defendant's undertaking was as- signed, not that all claims there- under were assigned. See Cassidy v. Arnold, 100 App. Div. 412, 91 N. Y. Supp. 570. ■" An assignment of the converted property carries the right of action for its conversion. Sherman v. Elder, 24 N. Y. 381; Rothschild v. Allen, 90 App. Div. 233, 86 N. Y. Supp. 42, aff'd 180 N. Y. 561. ^ This allegation does not neces- sarily characterize the assignment as absolute or as security; proof of either will sustain the allegation. Howe v. Hagan, 110 App. Div. 392, 97 N. Y. Supp. 86. « Doughty V. Weston, 90 Misc. 304, 152 N. Y. Supp. 1035. 40 Abbott's Forms of Pleading 24. Where Several Assignees Hold Fractional Claims to the Amount Sought to be Recovered.^" That on or about the day of , 19 , said [assignor] duly assigned his said claim against the- de- fendant to these plaintiffs in the following several amounts, viz., to the plaintiff A. B., dollars thereof, to the plaintiff C. D. dollars thereof [etc.]. Wherefore, plaintiffs demand judgment against the defendant for the sum of dollars, and that their respective rights therein be determined, and for such other and further relief as may be proper. 25. Where Assignee Sues to Enforce a Collateral Security." That on or about the day of , 19 , said [mortgagee] duly assigned said [bond and mortgage] ''^ to plaintiff. ™ Adapted from Breck v. U. S. Title G. & I, Co., 128 App. Div. 311, 112 N. Y. Supp. 756. If the assignor retains a fractional interest he must be made a part}'. Carvill ;■. Mirror Films, Inc., 178 Ai)p. Div. 644. The action must be laid in equity, even if brought by a single assignee. Dickinson v. Tysen, 125 App. Div. 735, 110 N. Y. Supp. 269, disapprov- ing Chase v. Deering, 104 App. Div. 192, 93 N. Y. Supp. 434. See, also, Lagrave v. Hellinger, 144 App. Div. 397, 129 N. Y. Supp. 291, aff'd 205 N. Y. 577; Chambers v. Lancaster, 160 N. Y. 342. A complaint at law is demurrable, where defendant's ob- ligation is single, as upon a promis- sory note. Barkley v. Muller, 164 App. Div. 351, 149 N. Y. Supp. 620. *' An a.ssignment of the security alone, without a transfer of the principal debt, is inoperative. Wan- zer V. Cary, 76 N, Y. 526; Merritt v. Bartholick, 36 N. Y. 44. But an assignment of an interest in the mortgage without mentioning the bond is in effect an assignment of so much of the mortgage debt. Lar grave v. Hellinger, 144 App. Div. 397, 129 N. Y. Supp. 291, aff'd 205 N. Y. 577. The security is to be deemed assigned, in equity at least, as an incident to the assignment of the principal debt, but the debt will not pass as incident to an assignment of the security. If a bond and mortgage are as- signed as security for a loan or debt, less than the amount of the bond, the assignor and assignee are joint owners. Cresco Realty Co. v. Clark, 128 App. Div. 144, 112 N. Y. Supp. 550. ^^ An allegation of the assignment of the mortgage, without including an allegation that the bond was also assigned, is insufficient. Smith v. Thompson, 118 App. Div. 6, 103 N. Y. Supp. 336; Manne v. Carlson, 49 App. Div. 276, 63 N. Y. Supp. 162. Capacity to Sue or be Sued, etc. 41 26; Allegation of Assignment of a Contract Which was Not Assignable Without Consent.'^ [State defendant's contract with the assignor.] That thereafter said defendant duly gave his consent to said [assignor] that he might assign said contract [by an instrument in writing indorsed by defendant thereon — or, signed, — sealed, — and delivered to him by defendant, — a copy of which consent is annexed to this complaint as a part hereof and marked Exhibit B.] 27. Allegation of Assignment in an Action in Those Juris- dictions Where Writing or Consideration must be Alleged." [Sustained by Burnham v. Peck (Me.), 3 N. E. Rep. 240.] I. [Set forth cause of action accrued to the assignor.] II. That thereafter [or, on or about the day of , 19 ,] and before this action, said [assignor] for a valuable consideration duly assigned the said claim [or, name instrument, or, all his right of action in the premises] to this plaintiff, by an instrument in writing signed [sealed] and dehvered by him, a copy whereof is annexed to this complaint as part hereof, and marked Exhibit A [or, if so required, is to be filed in court with the writ herein]. [If demand upon defendant is necessary, and has not been alleged in stating the cause of action, allege itl\ 28. Allegation of Assignment Where Action is Brought in United States Court on the Ground of Different Citizenship. [Act of March 3, 1887, and of August 13, 1888; 25 U. S. St. at L. 433.] " 5' The objection that the contract See Manh. Com. Co. v. Paul, 216 was not assignable without consent N. Y. 481. may be raised by demurrer, if ap- *' The original act (Sept. 24, 1789) peering on the face of the complaint. and United States Revised Statutes, See Notes to Form 23. § 629, were similar to the present stat- '* A statutory requirement must be ute, except that they did not include followed, or the assignment is void. within their prohibition the subse- 42 Abbott's Fokms of Pleading [Title — and, if in equity, address; see Farm 83.] I. [Allege citizenship of the parties as in Farm 82.] II. [Shaw cause of action accrued to assignor.] III. Allege assignment to plaintiff as in preceding forms, adding: and the said [assignor] was, at the time of the com- mencement of this action, a citizen of the State of .^^ 29. By Assignee of Claim of Foreign Corporation, Arising on Contract Within the State. [Allege in addition to cause of action, and assignment, the authority of foreign corporation to do business in the State, as in Form 47-] " 30. By an Equitable Assignee,^* by Accepted Order for Moneys to Become Due on a Contract Afterward Performed. [Sustained by Gallagher v. Nichols, 61 N. Y. 438.] I. That on or about the day of , 19 , quent holder of a personal obligation payable to bearer. The act of 1875, chap. 137, with- drew from the operation of the prohi- bition all promissory notes negotiable by the law merchant and bills of exchange. The present statute (above cited) restores and extends the origiaal prohibition. (See note 56.) " This additional allegation is needed in an action by the assignee of any promissory note or other chose in action, whether the assignment be voluntary, or by operation of law. Bradford v. Jencks, 2 McLean (U. S.), 130; also, if an equitable assignment, Corbin v. Black Hawk County, 105 U. S. 665; and where the suit is for specific rehef as well as where it is for debt or damages. Shoecraft v. Blox- ham, 124 U. S. 730. A Uke allegation is necessary in an action by the transferee of a personal obligation (not made by a corporation) payable to the bearer. The allegation is not needed in an action upon a foreign bill of exchange, nor in an action by the transferee of a corporate obligation payable to bearer; nor in an action by the execu- tor or administrator on a claim due decedent. Chappedelaine v. Deche- naux, 4 Cranch, 306. Nor is it needed when the action is brought under the common-law prac- tice, in the name of the assignor, be- cause the fact wiU appear by the first allegation. Dimmock v. DooUttle, 29 Fed. Rep. 545. "The complaint by the assignee wiU be demurrable without such an allegation. Manufactiirers' Com. Co. V. Blitz, 131 App. Div. 17, 115 N. Y. Supp. 402. ^ If the equitable assignment is of the whole fund, or if it was assented to by the debtor, the cause of action is legal; otherwise it is equitable. Capacity to Sue or be Sued, etc. 43 the defendant Y. Z. as party of the first part and one M. N. as party of the second part entered into a contract sub- scribed [and sealed] by them of which the following is a copy: [Copy of contract.] II. That on or about the day of , 19 , the said M. N. for value received made and delivered to this plaintiff an order on said defendant of which the following is a copy: [Copy of order for payment of a sum out of proceeds of the contract.] III. That said order was thereupon presented to said de- fendant Y. Z., who thereupon and for value received ac- cepted said order, in token whereof he then and there wrote thereon the following acceptance: [Copy of acceptance.] IV. That thereafter and on or about the day of , 19 , said defendant had in his hands the sum of dollars, proceeds of said contract appUcable to payment of said order. [Or if the order was expressly conditioned, — as, for instance, only on complete performance of the contract, — may allege it according to the fact, as thus: IV. That the time for comple- tion of the performance of said contract was extended by written agreement between the parties thereto until the day of , 19 , and thereafter said defend- ant approved and accepted the work mentioned in said con- tract, and by and in token thereof subscribed and indorsed on said contract the following approval : [Copy of indorsement.] V. That thereafter and before this action [or, on or about the day of , 19 ], this plaintiff duly demanded of defendant payment of said order, but he re- fused to pay the same, and there remains unpaid thereon the sum of dollars [with interest from, etc.]. Wherefore [etc., demand of judgment]. 31. By Assignee for Benefit of Creditors — Suing as Such.=^ [Adapted from complaint in Warner v. Jaffrey, 96 N. Y. " Such an assignee of a foreign corporation may sue. See Stoddard V. Lum, 159 N. Y. 265. 44 Abbott's Forms of Pleading 248; sustained, also, in Rollins v. Humphrey, 98 Wise. 66, 73 N. W. Rep. 331.] [Name of court.] A. B., as Assignee for the Bene- 1 fit of Creditors of M. N.,/ plaintiff, against Y. Z., defendant. The plaintiff complains as assignee for the benefit of the creditors of M. N. and alleges: I. [Set forth claim accrued to assignor.] II. That on or about the day of , 19 , said M. N. duly made, executed and dehvered*" to this plaintiff * an assignment of all the property of said M. N., including the claim herein set forth, in trust for the benefit of his creditors," [if the action is against creditors, the validity of the assignment as against them, should he shown, as thus: which said assignment was then and there duly acknowl- The assignee may sue individually. the action is simply to recover on a Hoagland v. Trask, 48 N. Y. 686; liability to the assignor, the facts Butterfield v. Macomber, 22 How. showing compliance with formalities Pr. (N. Y.) 150; Langdon v. Thomp- created by the statute need not be al- son, 25 Minn. 509; but in case he does leged, because they are for the benefit so, the court will not relieve him of of creditors, and the assignment is costs if unsuccessful. Murray v. good at common law, as against Hendrickson, 6 Abb. Pr. (N. Y.) 96; debtors and wrongdoers without com- 1 Bosw. (N. Y.) 635; N. Y. Code pliance. Grant v. Crowell (N. J Civ. Pro., § 3246. Eq. 1887), 11 Atl. Rep. 201; Adams v. The construction and effect of an Henry, 22 Abb. N. C. (N. Y.) assignment for benefit of creditors as 385; Brennan v. Wilson, 4 id. 279 affected by a State statute, is a matter Thrasher v. Bentley, 1 id. 39; Jones v. on which the United States courts fol- Howard Ins. Co., 27 Wkly. Dig low the doctrine of the courts of that (N. Y.) 167; McBlain v. Speelman, 35 State. May v. Tenny, 148 U. S. 60. Hun (N. Y.), 263. In such an action ™ Delivery is essential as against at least objection to non-compliance adverse claimants, Mcllhargy v. must be taken by demurrer or answer Chambers, 117 N.Y. 532, and should under the New York Code. Kil- be alleged; Whitlock v. Fiske, 3 Edw. patrick v. Dean, 4 N. Y. Su'pp. 708. Ch. (N. Y.) 131. In other actions the additional alle- "' It is the better opinion that if gationi may be necessary. Capacity to Sue or be Sued, etc. 45 edged — or, proved — and duly accepted by this plaintiff by indorsement thereon signed by him and acknowledged — or, proved — and said assignment was thereupon "^ duly filed and recorded in the office of the clerk of the county of — and, if the action relates to real property assigned, it may be important to add: and a certified copy was immediately thereupon and on the day of , , 19 , filed and recorded in the office of the clerk of said county. That this plaintiff thereupon, and before this action, duly qualified as such assignee, and entered upon his duties as such, and made and filed the inventory and bond required by law.] [7/ suing in United States Circuit Court on ground of dif- ferent citizenship, allege citizenship of assignor as well as that of the parties, as in Form 82.] 32. By a Substituted Assignee for Benefit of Credit- ors.*' [As in the last form substituting Q,t the * for the words "this plaintiff," — one — naming original assignee.] III. That thereafter in proceedings duly had in the county court of said county,*^ an order was duly made by said court, removing [or, accepting the resignation of and dis- charging] said [original assignee] and appointing this plain- tiff in his stead, and this plaintiff, thereupon and before this action, duly qualified as the assignee of the property of said [assignor] in trust for the benefit of creditors, and entered upon his duties as such [and filed the inventory, and bond required by law].^'' '2 NicoU w. Spowers, 105 N. Y. 1. the substituted or successor assignor. «' See Farwell v. Cohen (111., 1893), Rogers v. Pell, 166 N. Y. 665. 32 N. E. Rep. 894. »* See last Form, note 61. '^The county court may appoint 46 Abbott's Forms of Pleading 33. By Assignee Under State Insolvent Law. [Sustained by Bull v. Horton, 65 Cal. 422; under N. Y. Code Civ. Pro., § 532.] [Name of court] A. B., as Assignee of M. N., an Insolvent Debtor, plaintiff, I against Y. Z., defendant. The plaintiflf complains as assignee of M. N., an insolvent debtor, and alleges: I. [Set forth cause of action accrued to assignor.] II. That thereafter, in proceedings pending before the county court of county in this State, under article 3 of the Debtor and Creditor Law, comprising chap- ter 12 of the ConsoUdated Laws, upon a petition duly pre- sented by said M. N., an order was duly made by said com-t directing an assignment to be made by^said M. N. of all- his property, not exempt by law from levy and sale on execu- tion, for the benefit of his creditors, and designating this plaintiff, a resident of this State, as trustee for that purpose under said statute. III. That thereupon said M. N. duly made, executed and delivered to this plaintiff, as such trustee, an assignment of all his property, in accordance with said statute and order, duly acknowledged [or, proved] and certified, which said assignment was on said day duly recorded in the office of the clerk of said county [and, if real property is con- cerned], and also recorded as a deed in the office of the clerk — or, register — of county, and this plaintiff thereupon duly qualified and entered upon the discharge of his duties as trustee under said assignment.^^ [If suing in the United States court on the ground of dif- ferent citizenship, allege citizenship of the assignor as well as that of the parties as in Form 82.] ^^ Tor the New York statute, see "Sere v. Pilot, 6 Cranch (U. S.), Debtor and Creditor Law, Art. 7. 332. Capacity to Sue or be Sued, etc. 47 34. Allegation that Plaintiff is a Foreign Official Assignee.'* [After setting forth cause of action accrued to assignor.] That the laws of aforesaid, at the time of the proceedings hereinafter alleged, did and ever since have contained a provision in [citing statute] that [here set forth the material provision either in its own words or in sub- stance.] [Allege proceedings in compliance therewith, in same manner as in case of domestic statute, informs preceding]. 35. By Assignee (for Money Loaned) of Salary or Wages, Against Employer. [Under N. Y. Personal Property Law,' § 42.] «» In addition to the allegation of assignment, as in Form 26, must also allege: That the consideration for said assignment was an ad- vance of money on account of said [wages] ; that said assign- ment was dated on the same day as said loan was actually made, viz., the day of , 19 ; that within three days thereafter and on the day of , 19 , plaintiff filed with the defendant a duly authenticated copy of said assignment, together with a notice of lien. That plaintiff is engaged at in the county of ''Suffices as against the assignor's ing appointment of foreign liquidators debtors here, though not as against (plaintiffs), see Anderson v. Haddon, his creditors. Matter of Waite, 99 9 Abb. N. C. (N. Y.) 290. The deoi- N. Y. 433; Hunt v. Jackson, 5 Blatchf. sion was reversed in 33 Hun (N. Y.), (U. S.) 349; s. p., Glenn v. Soule, 22 435, but only on the ground that the Fed. Rep. 417; Glenn v. Lancaster, 21 foreign adjudication as to the amount Abb. N. C. (N. Y.) 270. due would not sustain an action here. Where a foreign" corporation may "' As amended by chap. 626, Laws make a general assignment for the of 1911. The section has been so benefit of its creditors, the foreign materially revised that prior decisions assignee may sue here to enforce a thereunder are of little authority, stockholder's liability to the corpora- See Thompson v. Erie R. R. Co., 207 tion. Stoddard v. Lum, 159 N. Y. N. Y. 171; Thompson v. Gimbel 265. Bros., 146 App. Div. 436, 129 N. Y. For a well-drawn complaint alleg- Supp. 1025, aff'd 207 N. Y. 659. 48 Abbott's Forms of Pleading , in the business of loaning money upon seciirity of an assignment of wages or salary; that ^e has duly filed with the clerk of said county a statement under oath con- taining his name and residence, and the place where his business is transacted. 36. By Plaintiff, the Devisee. [After allegation of title in testator.] That said M. N. died, on or about the . day of , 19 , leaving a last will and testament which was thereafter and on the day of , 19 , duly admitted to probate by the [surrogate of the county of ], and wherein and whereby said M. N. devised said premises in fee to plaintiff.™ 37. Plaintiff, the Heir at Law.^' [After allegation of ancestor's seizin and plaintiff's rela- tionship.] That said M. N. died on or about the day of , 19 , intestate, leaving him surviving no [state all lines of descent having preference to plaintiff's] ^^ and that the fee of said premises thereupon descended to plaintiff as his sole heir at law. 38. Plaintiff, the Legatee, or Next of Kin, A mere allegation that plaintiff is "the owner" of a chattel is sufficient, without presenting soiu-ce of title. Abb. Brief on PL, 2d ed., § 412, and cases cited. ™ A general allegation that plaintiff '"■ See note to preceding form, is seized in fee is sufficient on de- '^ When plaintiff shows a collateral murrer without showing source of relationship, he must allege the ex- title, in absence of any statutory re- haustion of all preferred lines of quirement. See complaints in Eject- descent. Henriques v. Yale Univ., MENT, post; Gage v. Kaufman, 133 28 App. Div. 354, 51 N. Y. Supp. U. S. 471; Abb. Brief on PI., 2d ed., 284. 659, 684. Capacity to Sue or be Sued, etc. 49 IV. ASSOCIATIONS (UNINCORPORATED) " 39. Allegations in Action Brought by a Voluntary Associa- tion in Name of OflBcer.'' [Under N. Y. Code Civ. Pro., § 1919; adapted from Wicks V. Monihan, 130 N. Y. 232.] ^^ [Name of court] ^^ A. B., as President [or, Treas- urer] of the M. N. Society [or, Association, or, Club, etc.], ' plaintiff, | against Y. Z., defendant. The plaintiff complains as president [or, treasiu"er] of the M. N. Society, and alleges: That said [M. N. Society] at the times hereinafter men- "' As to the nature of these associa- tions, see Ostrom v. Greene, 161 N. Y. 353; Branagan v. Buckman, 67 Misc. 242, 122 N. Y. Supp. 610; Ebbing- housen v. Worth Club, 4 Abb. N. C. (N. Y.) 300; Belton v'. Hatch, 109 N. Y. 542; McCabe v. Goodfellow, 133 id. 89; People ex rel. Winchester V. Coleman, id. 279; Liverpool Ins. Co. V. Mass., 10 Wall. (U. S.) 566. As to allegation of corporate capacity, see Title VI, Corporations. '* In the absence of statutory pro- visions, the right to sue exists in the members jointly. The association cannot sue in its own name. Francis V. Perry, 82 Misc. 271, 144 N. Y. Supp. 167. The cause of action must be alleged as accruing to the association, not to plaintiff. Dela- field V. Kinney, 24 Wend. (N. Y.) 245; National Bank of . Schuylerville v. Van Derwerker, 74 N. Y. 234. The summons having been served on the proper officer, an omission to name him as defendant is amendable. McKane v. Democratic Gen. Com., 21 Abb. N. C. (N. Y.) 89. The provision that a voluntary association may sue or be sued in the name of its president or treasurer (N. Y. Code Civ. Pro., § 1919) is permis- sive, and does not prevent an action by the members, or by a member on behalf of aU. Code Civ. Pro., § 1923, Blocte V. Simon, 19 Abb. N. C. (N. Y.) 88; 12 Civ. Pro. R. 114; Strasser V. Moonelis, 55 Super. Ct. 197; Hum- bert V. Abeel, 7 Civ. Pro. R. 417. '' See, also, as to sufficiency. Stone t'. Textile Exam. Empl. Assn., 137 App. Div. 655, 122 N. Y. Supp. 460. '' The State law allowing actions in this form is followed in actions of a legal nature in the United States courts. Whitman v. Hubbell, 30 Fed. Rep. 81. 50 Abbott's Forms of Pleading tioned was and now is an unincorporated association located in the city of and county of , [and State of ] consisting of seven or more persons.'^ II. That the plaintiff is the president [or, treasurer] of said association^* III. [Set forth the cause of action in such manner as to show that it is one upon which all the associates might jointly or severally maintain the action, by reason of their ownership or interest therein.] '' [7/ provisions of its constitution or hy-laws are material, allege them as in Form 40.] " The names of the associates need not be stated. Tibbetts v. Blood, 21 Barb. (N. Y.) 650. If suing within a State whose laws authorize an associa- tion so to sue, in the United States court if on the ground of different citizenship, insert here the words, "duly organized and existing under the laws of the State of " Also allege citizenship and residence of de- fendant. See Morgan v. Halberstadt, 60 Fed. Rep. 592; 9 Cir. Ct. App. 147. In the United States courts (at least those not situated within a State whose laws authorize an unincor- porated association so to sue) an un- incorporated association cannot sue in the name of its president or other officer, though authorized to do so by the law of the State in which it is do- ing business. An allegation, there- fore, in plaintiff's pleading in those courts of the citizenship and resi- dence of such an association, in an action by or against it, is not suffi- cient. The jurisdiction of the United States courts wiU depend on the cit- izenship and residence of the indi- vidual members as in the case of a partnership. Chapman v. Barney, 129 U. S. 677, 682. '* This allegation is material and issuable. Tiffany v. Williams, 10 Abb. Pr. (N. Y.) 204; Van Aemam v: McClune, 32 Hun (N. Y.), 316. If the officer is subsequently replaced by another, the later incumbent may be substituted as plaintiff under Code Civ. Pro., § 1920; Kehoe v. Leonard, 176 App. Div. 626, 163 N. Y. Supp. 357. " Necessary under McCabe v. GoodfeUow, 133 N. Y. 89, 93. This is the character of the statutory au- thorization. Ostrom V. Greene, 161 N. Y. 353. The allegations referring to the association should not name it as though the plaintiff, but the reference" should be to "said association." It is really a representative action, al- lowed by statute, in which the officer represents the members. See Stone V. Textile Exam. Employers' Assoc, 137 App. Div. 655, 122 N. Y. Supp. 460; Pentz v. Sackett, Hill & D. Supp. (N. Y.) 113; Dougherty v. McManus, 36 Iowa, 657. Capacity to Sue or be Sued, etc. 51 40. Allegations in Action Brought Against an Association in Name of Officer.*" [Name of court] A. B., plaintiff, against Y. Z., as President [or, Treas- urer] of the Associa- tion, defendant. Asso- The plaintiff for its complaint against the elation, alleges: I. That the said Association was, at the times hereinafter mentioned, and ever since has been, an unin- corporated association, consisting of more than seven per- sons; that said association was formed for the purpose of pecuniary profit [may add particular business conducted]. ^^ II. That the above named Y. Z., at the time of the com- mencement of this action, was the president thereof.^^ *• Plaintiff may, at his election, sue the members individually on their joint liability, naming them all as if they were partners or mere asso- ciates, or if the members are nu- merous, any officer or member may be sued as representative of a class. See Bossert v. Dhuy, 166 App. Div. 252, 151 N. Y. Supp. 877. But plaintiff may not sue the members in this representative manner and also join them individually on their liabiUty as such members. See April V. Baird, 32 App. Div. 226, 52 N. Y. Supp. 973; Code Civ. Pro., § 1922. For the relative advantages of execution against property in these different forms of suit see the statute, N. Y. Code Civ. Pro., § 1921. A complaint charging that work was done for an individual defendant at his request is not sustained by proof of such work done for an asso- cia;tion of which defendant is a mem- ber. Brown v. Wolfe, 119 App. Div. 777, 104 N. Y. Supp. 573. An action cannot be maintained against both the president and treas- urer. Mazuratis v. Maknawyee, 93 Misc. 337, 157 N. Y. Supp. 151. ^' In such case the members become in fact co-partners, with the in- dividual hability of the members resting upon the rules governing the liability of partners and of princi- pals for the acts of agents. See McCabe v. GoodfeUow, 133 N. Y. 89; United Press v. Abell Co., 87 App. Div. 344, 84 N. Y. Supp. 425. The allegation as above given is good as against demurrer. Ranken v. Probey, 131 App. Div. 328, 115 N. Y. Supp. 832. But it was also suggested that the allegation would be too indefinite as against a motion without a disclosure of the character of its business. »2 It is held in Boyd v. Grant, 82 App. Div. 456, 81 N. Y. Supp. 835. 52 Abbott's Forms of Pleading [7/ provisions of the articles of association, constitution or by- laws are material,^'' allege them as thus:] III. That the members of the said association have duly adopted and are governed by certain articles of association and by a constitution and by-laws also duly adopted; that among other things it is provided in and by the said articles of association, constitution and by-laws, as follows: [quoting what is material]. [Allege cause of action against association, which must be one upon which the members will be liable either jointly or severally.] ^* V. BANKERS (INDIVIDUAL) 41. By or Against an Individual Banker, [Doing Business Under Name of a Bank]. [Name of court, etc.] A. B., plaintiff, against Y. Z., defendant. The plaintiff complains of the defendant and alleges: I. That the plaintiff, [or, defendant] at all the times here- that where a company of persons has N. Y. Supp. 832, ano. dec. 130 App. a president or treasurer, the fact that Div. 134, 120 N. Y. Supp. 413. It it has less than seven persons as mem- may be for tort, committed by all the bers is an affirmative defense, under members, acting through the associa- Code Civ. Pro., § 1919. tion. Rourke v. Elk Drug Co., 75 ** The contract between an associar App. Div. 145, 77 N. Y. Supp. 373. tion and its members consists of the In such event individual members of certificate of membership (if any), its the association, who are charged with, constitution and by-laws. See Tau- personal wrong-doing, may be also fer V. Brotherhood of Painters, 137 joined. April v. Baird, 32 App. Div. App. Div. 838, 122 N. Y. Supp. 527. 226, 52 N. Y. Supp. 973. A corn- Such provisions may become mate- plaint is insufficient against the asso- rial when they are to be relied upon as ciation through its officer unless the conferring express authority to create charge is that" all the members have an individual liability of the mem- united in the tort. Mazuratis v. bers. Maknawyee, 93 Misc. 337, 157 N. Y. " Code Civ. Pro., § 1919; Schouten Supp. 151. V. Alpine, 215 N. Y. 225; Rankin v. See suggestions as to mode of Probey, 131 App. Div. 328, 115 allegation in last note to Form 39. Capacity to Sue or be Sued, etc. 53 inafter mentioned, was and now is an individual banker, carrying on the business of banking at , in this State, [under the designation of the Bank of ,] pursuant to authority of the Banking Law of the State of New York.^5 VI. CORPORATIONS 42. By or Against a Corporation at Common Law.^® [Title, setting forth corporate name in full.] 1. That the plaintiff [or, defendant] was at the times hereinafter mentioned and now is a corporation,* [and where the incorporation ivas by special act] created by an act of the Legislature of the State of , passed , «5Chap. 2 of N. Y. Consolidated Laws. In an action by an individual banker doing business under the general law, it is the proper practice for him to sue in his individual name, and not in the name of his bank. Bank of Havana v. Magee, 20 N. Y. 355; Hallett v. Harrower, 33 Barb. (N. Y.) 537. ** At common law, a pleading in- volving the existence or transactions of a corporation, whether foreign or domestic, is not necessarily demurra- ble for insufficiency by reason of not alleging incorporation; for that fact may be assumed from the use of a name appropriate only to a corporar tion, or from the fact that the party contracted with it by such a name. To this effect are the decisions in Ryan v. Farmers' Bank, 5 Kan. 658; Bennington Iron Co. v. Rutherford, 18 N. J. L. 107; Harris v. Muskegum Mfg. Co., 4 Blackf. (Ind.) 267, with note, 29 Am. Dec. 375; Exchange Nat. Bank v. Capps (Neb., 1891), 49 N. W. Rep. 223; U. S. Bank v. Hast- ings, 1 Johns. (N. Y.) 132; Lewis v. Bank of Kentucky, 12 Ohio, 132; Lighte V. Everett, etc., Ins. Co., 5 Bosw. (N. Y.) 716; Dodge v. Minne- sota, etc., Co., 14 Minn. 49; Woolf v. City S. S. Co., 62 Eng. C. L. 103. Nor is it necessary at common law to set out the manner of its crea- tion, whether a public or private, foreign or domestic corporation. Portsmouth Livery Co. ;;. Watson, 10 Mass. 91; U. S. Bank v. Hastings, 1 Johns. (N. Y.) 132; Bank of Utica v. Snialley, 2 Cow. (N. Y.) 778. Statutes in many States require certain details to be alleged; e, g., N. Y. Code Civ. Pro., § 1775. See Forms 44 and ,45. Nevertheless a failure to obey the requirement of the statute does not make the complaint defective as against de- murrer, although compliance may be enforced by motion. See Ochs v. Frey, 47 App. Div. 390, 62 N. Y. Supp. 67. The rule in Chancery seems to be no more stringent than at common law. Frye v. Bank of Illinois, 10 111. 332. 54 Abbott's Forms of Pleading 19 , and entitled "[set forth title of act]" and by virtue of an organization as provided for in said act,^' [or, where the organisation was under a general act, continue from,* or- ganized under an act of the Legislature of the State of , entitled " ," passed , 19 , and the acts amendatory thereof.] [For allegation of objects see Form 62.] 43. General Allegation of Corporate Capacity in States Having Statutory Requirements.*^ [The next two succeeding forms, adapted far use in New York, it is believed will be found in substantial compliance with the statutes of many States.] 44. By or Against a Domestic Corporation. [Under New York Code of Civil Procedxu-e, § 1775.] '' [Title and commencement.] I. That at the times hereinafter mentioned, plaintiff leged. Kaulbach v. Knick. Tr. Co., 139 App. Div. 566, 124 N. Y. Supp. 286. This does not make the tact a part of the cause of action; it does require that the capacity to sue or be sued be shown. It does not, how- ever, expressly modify § 488 of the Code, which declares that the want of legal capacity to sue must appear af- firmatively on the face of the com- plaint in order to sustain a demurrer for insuflSciency, and if it does not appear on the face of the complaint, the objection must be taken by answer or is waived. The better opinion, therefore, is that the remedy for a disregard of § 1775 is not by demurrer for insufficiency, but by motion to make the complaint more definite and certain. Ochs v. Frey, 47 App. Div. 390, 62 N. Y. Supp. 67; Harman v. Vanderbilt Hotel Co., 79 Hun, 392, 29 N. Y. Supp. 783, aff'd 143 N. Y. 665; Rothschild v. Grand '•' Approved in R. R. Co. v. Tipton, 5 Ala. 787. ^ In each case, however, the provi- sions of the local statutes should be consulted. *' If the contract sued on be one that could only be made by a corpo- ration, then incorporation is a fact necessary to constitute the cause of action and must be alleged irrespec- tive of the provision of the Code; an omission to allege it is ground of de- miu-rer for insufficiency. But in an action for tort, or on a contract which could have been made by one not a corporation, the fact of incorporation is not essential to the cause of action, but relates only to the capacity to sue or to be sued. Phoenix Bank v. DonneU, 40 N. Y. 410. Even in that case, however, the provision of the Code (§ 1775) requires the fact of incorporation and the character, whether domestic or foreign, to be al- Capacity to Sue or be Sued, etc. 55 [or, defendant] was, and now is, a domestic [business — stockj^" corporation, organized and existing under the laws of this State [or, created under the laws of the United States and located in this State]. " [For allegation of objects, to show corporate power Form 52] see 45. By or Against a Foreign Corporation.'- [Under New York Code of Civil Procedure, § 1775.] I. That plaintiff [or, defendant], at the times hereinafter mentioned was, and now is, a foreign corporation created by [or, organized and existing under and by virtue of] the laws ^* of the State of , [or, the kingdom of Great Britain, Trunk R. Co., 38 N. Y. St. Rep. 869; 14 N. Y. Supp. 80; Fox v. Erie Pre- serving Co., 93 N. Y. 55. If, however, validity of tKe con- tract depends on incorporation, then incorporation at the time of the mak- ing of the contract must be alleged, as a fact necessary to constitute the cause of action. ™ If the right or habiUty belongs to or is imposed upon a corporation of a particular class only, it will of course be essential to allege that it is of such class. The classification made by the General Corp. Law, § 2, will be appUed by the courts. Union Bank V. Kleim, 52 App. Div. 135, 64 N. Y. Supp. 1070, aff'd 169 N. Y. 587. " Such a corporation is domestic for the purpose of construing the Code. N. Y. Code Civ. Pro., § 3343, subd. 18. It is a foreign corporation with relation to other statutes. See Gen. Corp. Law, § 3, subd. 5. An allegation that specified oflBcers are a domestic corporation should be deemed a conclusion of law if the facts stated, or a public statute of which the court must take notice show that they are not. Walsh v. Trustees of N. Y., etc., Bridge, 96 N. Y. 427. »2 N. Y. Code Civ. Pro., § 1779, al- lows a foreign corporation to sue in like manner as a domestic corpora- tion, if not otherwise specially pre- scribed. Note 89 to Form 44 is ap- plicable to an action brought by a foreign corporation. Batchelder, etc., Co. V. Knopf, 54 App. Div. 329, 66 N. Y. Supp. 513. When a foreign corporation is do- ing business in this State, it must allege its authority. See Forms 46 and 47, and notes. '' It is perhaps more accurate to speak of a corporation existing under a special act, as "created by the laws," etc.; of one incorporated under a general law, as ''organized under the laws," etc. The special act need not be re- ferred to. Code Civ. Pro., § 1775. In fact to merely allege that it is "an Ohio corporation," is a com- pliance with the New York require- ment. See Roberts v. Pioneer Iron Works, 125 App. Div. 207, 109 N. Y. Supp. 230. 5(3 Abbott's Forms of Pleading or, created by or under the laws of the United States and located in the State of ]. [Allege its possession of any power, not implied, or inci- dental to its existence, the exercise of which is involved in the action.^^ See next form, and Form 52.] [If the action is against the foreign corporation, allege plain- tiff's residence within the State; ^^ or if a non-resident or foreign corporation is suing the foreign corporation, allege the other facts showing a cause of action within the jurisdiction of the court within the requirements of Code Civ. Pro., § 1780.] '^ 46. Allegation by Foreign Stock Corporation, Plaintiff, Showing Authority to Sue in the State of New York." I. [After alleging incorporation as in Form 45]; that plain- '■• Because the court will not take judicial notice of powers possessed under foreign statutes. Reno Oil Co. V. Culver, 60 App. Div. 129, 69 N. Y. Supp. 969 (power to issue certificates of stock). The question whether a foreign cor- poration has by its charter been vested with power to contract, cannot be raised by demurrer, where the com- plaint contains general allegations of its creation, and the sale and delivery of goods by it to defendant. Cone Export Co. V. Poole, 41 S. Car. 70, 19 S. E. Rep. 203. »= It in N. Y. City Municipal Court, must also allege that the defendant corporation has an office in the city. Todd & Co. V. So. Pac. Co., 88 Misc. 517, 150 N. Y. Supp. 979. ^ A constitutional limitation on the power of the New York Supreme Court (Barker v. Cunard S. S. Co., 91 Hun, 495, 36 N. Y. Supp. 256, aff'd 157 N. Y. 693), and not in conflict with the U. S. Constitution. Anglo- Am. Prov. Co, V. Davis Prov. Co., 191 U. S. 373. Omission to allege residence may not make the complaint demurrably defective (compare Herbert v. Mon- tana Diamond Co., 81 App. Div. 212, 80 N. Y. Supp. 717, and Bogert v. Otto Gas Engine Works, 28 App. Div. 463, 51 N. Y. Supp. 118); but the complaint will be defective in not showing jurisdictional facts if it is sought to use it to secure an order of publication of the summons (id.), or to sustain an attachment. Coolidge V. Am. Realty Co., 91 App. Div. 14, 86 N. Y. Supp. 318. Section 1780 was amended in 1913, so as to permit an action by a non-resident or foreign corporation against a foreign corporation when the latter is doing business within the State. U. S. Asphalt Co. v. Comp- tair, etc., 166 App. Div. 64, 151 N. Y. Supp. 604; Grant v. Greene Cons. Copper Co., 169 App. Div. 206, 154 N. Y. Supp. 596. The amendment is not retroactive in effect. Morrison v. Bait. & Ohio R. Co., 177 App. Div. 613. ^ Many States regulate the right of a foreign corporation to do business within their boundaries. Statutes of Capacity to Sue or be Sued, etc. 57 tiff, prior to the times hereinafter mentioned "* duly pro- cured from the secretary of state of the State of New York a certificate as provided by § 15 of the General Corpora- various kinds have been passed with that end in view and embodying some species of coercion to enforce compliance. They cannot have ap- pUcation to a corporation whose bus- iness acts in the State are merely integral parts of its interstate com- merce. See Inter. Text Book Co. v. Jone, 220 N. Y. 313. This form is adapted to the New York statute (Gen. Corp. Law, § 15), which prescribes that no foreign stock corporation (other than a monied corporation) doing business in the State shall maintain any action in this State upon any contract made by it in the State unless prior to the making of such contract it shall have procured the prescribed certificate of authority. Such contract is, however, enforceable against the foreign corporation. Mahar v. Harr. Park Villa Sites, 204 N. Y. 231. And may be used by the corporation as the basis of a counterclaim in an action founded on the contract. Alsing Co. V. N. E. Quartz, etc., Co., 66 App. Div. 473, 73 N. Y. Supp. 347, aff'd 174 N. Y. 536. It may main- tain an action not founded on con- tract without such authority. Hoevel Co. V. Hoevel, 167 App. Div. 548, 153 N. Y. Supp. 35. The complaint is demurrable un- less it is affirmatively alleged that this certificate has been obtained, when it also appears that the con- tract was made within the State. Acorn Brass Mfg. Co. v. Rutenberg, 147 App. Div. 533, 131 N. Y. Supp. 260; Wood & SeUck r. Ball, 190 N. Y. 217; South Bay Co. v. Howey, 190 N. Y. 240; Welsbach Co. t>. Noi-wich Gas, etc., Co., 180 N. Y. 533, aff'g without opinion 96 App. Div. 52, 89 N. Y. Supp. 284. But the complaint may- properly set forth details of the way in which the transactions were consummated so as to show that the plaintiff was not doing its business within the State, even though the contract was made therein, and if it so appears the complaint is not demurrable in the absence of the above allegation. See Acorn Brass Mfg. Co. v. Rutenberg, 147 App. Div. 533, 131 N. Y. Supp. 260; McRoy Clay Works v. Naugh- ton, 84 App. Div. 477, 82 N. Y. Supp. 979. If the complaint is silent as to the place of the making of the contract, it will be presumed that it was made outside of the State. Southworth v. Morgan, 143 App. Div. 648, 128 N. Y. Supp. 196, rev'd on another point, 205 N. Y. 293; Alpha Portland Cement Co. v. Sohratweiser F. C. Co., 146 App. Div. 571, 131 N. Y. Supp. 142; Eclipse Silk Mfg. Co. v. Hiller, 145 App. Div. 568, 129 N. Y. Supp. 879. When the complaint fails to show the facts necessary to bring it within the application of the statute, an affirmative plea is necessary. Angldile, etc., Co. v. Gladstone, 164 App. Div. 370, 149 N. Y. Supp. 807. An assignee of the corporation must also allege its authority. Sec Kinney v. Reid Ice Cream Co., 57 ^ The certificate must be alleged to have been procured prior to the making of the contract sued on. Talmage's Sons Co. v. Am. Dock Co., 93 Misc. 535, 157 N. Y. Supp. 445. 58 Abbott's Forms of Pleading tion Law that it had duly complied with all the require- ments of law to authorize it to do business in this State, and that its business is such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business.®* App. Div. 206, 68 N. Y. Supp. 325; Halsey v. Jewett Dramatic Co., 190 N. Y. 231. A foreign corporation when sued may plead a counterclaim growing out of the contract, and when so doing the provisions of § 15 of the Gen. Corp. Law do not apply. Alsing Co. V. N. E. Quartz, etc., Co., 66 App. Div. 473, 73 N. Y. Supp. 347, aff'd 174 N. Y. 536. But a counterclaim arising out of another contract is to be treated as though the basis of an independent action. Am. Ink Co. v. Riegel Sack Co., 79 Misc. 421, 140 N. Y. Supp. 107. The character of the plaintiff as a stock corporation may be shown by the character and nature of its busi- ness as revealed by the complaint. South Bay Co. v. Howey, 190 N. Y. 240. Where it appears that the for- eign corporation is one which could have been incorporated in this State as a stock corporation for business purposes, and could not have been incorporated in this state for busi- ness purposes under the membership corporations law, it will be presumed that it is a foreign slock corporation. Id.; Portland Co. v. Hall & Grant Const. Co., 123 App. Div. 495, 108 N. Y. Supp. 821; Manuf. Comm. Co. V. Blitz, 131 App. Div. 17, fl5 N. Y. Supp. 402; Chicago Crayon Co. V. Slattery, 68 Misc. 148, 123 N. Y. Supp. 987. The statute does not invalidate such a contract, but the foreign cor- poration is unable to sue in this State thereon; the other party may enforce it against the foreign corporation. Mahar v. Harr. Park Villa Sites, 204 N. Y. 231. Where the complaint alleges two sales of goods made within the State it will not be presumed from these facts alone, upon demurrer, that the foreign corporation is doing business in the State. Ozark Cooperage Co. V. Quaker City Cooperage Co., 112 App. Div. 62, 98 N. Y. Supp. 113. What rights may be exercised by foreign corporations see Lancaster v. Amsterdam Imp. Co., 140 N. Y. 576; Demarest v. Flack, 128 id. 218. What constitutes "doing business in the State," see South Bay Co. v. Howey, 190 N. Y. 240; Penn Col- lieries Co. V. McKeever, 183 N. Y. 98; Burrowes v. Caplin, 127 App. Div. 317, 111 N. Y. Supp. 498; Novelty Mfg. Co. V. Connell, 88 Hun, 254, 34 N. Y. Supp. 717. The statute does not apply to an action brought ex delicto, American Type Co. v. Connor, 6 Misc. 391, nor in equity for relief against a fraud- ulent conveyance. Schlitz Brewing Co. V. Estes, 86 Hun, 22, 33 N. Y. Supp. 143, aff'd 157 N. Y. 784. For restrictions upon the right of a non-resident or a foreign corporation to sue a foreign corporation in the New York State courts, see note 96 to preceding form. » Under § 181 of the N. Y. Tax Law a license fee must also be paid and a receipt therefor obtained, proportioned on the capital employed within the State. Failure to pay such license fee is a matter of affirm- Capacity to Sue or be Sued, etc. 59 47. The Same ; Another Form. [Sustained in Lumley v. Anatron Chemical Co., 56 App. Div. 174, 67 N. Y. Supp. 663.] i"" [Aft&r the allegation of incorporation, as in Form 45\, and at all times hereinafter mentioned was and now is duly au- thorized to transact business within the State of New York. 48. Against Consolidated Corporation. [Under N. Y. Business Corp. Law, §§ 7-11.] [Allege incorporation of corporation originally the debtor of plaintiff, and allege claim as though in action brought against it.] That on or about the day of , 19 , said [old corporation] and [the other corporation consolidating with it] duly consolidated into a single corporation, the [de- fendant corporation] the defendant herein, under the permis- sion of sections seven to eleven of the Business Corporations Law of this State.^"! 49. Against Reorganized Corporation, Assuming Debts of Original Corporation.'"^ [Under N. Y. Stock Corp. Law, § 9.] [After alleging incorporation of original corporation, and ative defense only. Parmele Co. v. general rule is that the liability of the Haas, 171 N. Y. 579. A form therefor new corporation for the debts of the is given under "Answers." old does not result from operation of ™ Held sufficient in United Build- law, but must follow the assumption ing Material Co. v. Odell, 67 Miso. of the debts of the old corporation 584, 123 N. Y. Supp. 313. by the new. See Goldmark i;. See notes to preceding form. Magnolia Metal Co., 28 App. Div. '<" The consolidated corporation is 264, 51 N. Y. Supp. 68. liable "in the same manner as if An allegation that a corporation it had itself incurred the obliga- "succeeded to the business and in- tion." terests" of another corporation, and After the consolidation, the action " ha^»iassumed all of its assets and must be brought against the con- liabilities," does not permit the in- solidated corporation. Lee v. Still- ference that the successor corpora- water, etc., Ry. Co., 140 App. Div. tion's liability is based upon the con- 779, 125 N. Y. Supp. 840. tract with the first corporation. ">2ln the absence of statute, the Auto. S. M. Co. w. Twisted Wire, etc., 60 Abbott's Forms of Pleading its liability to plaintiff, the sale of its property and franchises under mortgage, deed of trust or judgment, continue:] That thereupon said [purchaser], together with certain persons associated with him, duly organized the [defendant corporation] under the provisions of § 9 of the Stock Cor- poration Law, and duly took and became possessed of said property and franchises of said [original corporation] under and by virtue of an assignment thereof by said [purchaser]. That at or prior to said sale of said property and fran- chises of said [original corporation] said [purchaser] and the other persons for whom said purchase was to be made duly made and entered into a plan or agreement under the provi- sions of § 10 of said Stock Corporation Law for the readjust- ment of the respective interests of creditors, mortgagees and stockholders of said [original corporation]; that in pur- suance of said plan or agreement, and with the approval of a majority of the agents or trustees therein intrusted with the carrying out of said plan or agreement, and within six months after the organization of said [defendant corpora- tion], said [defendant corporation] duly assumed the payment of the plaintiff's claim as above set forth. 60. Against Corporation Where Name has been Changed by Statute. [From McClelland v. Norfolk Southern R. R. Co., 110 N. Y. 469.] I. That the above-named defendant is a foreign corpora- tion created by and under the laws of the States of and , and as such was organized in the year 19 , under the corporate name of "The EUzabeth City & Norfolk Railway Co.," and thereafter conducted its business under said name until some time in the year 19 , when its cor- «^ Co., 159 App. Div. 656, 144 N. Y. judgment creditor's action. See Supp. 1037. City of N. Y. v. Eppinger, etc., Co., If plaintiff is attacking the re- 170 App. Div. 747, 156 N. Y. Supp. organization as in fraud of his rights 662. he must allege the facts as in any Capacity to Sue or be Sued, etc. 61 porate name was by the laws of said States duly changed to the corporate name of "The Norfolk Southern R. R. Co.," under which last-mentioned name it has since then con- ducted its corporate business and been known. 61. The Same; Change of Name Made by Order of Court. [Under N. Y. Gen. Corp. Law, §§ 60-65.] [After alleging incorporation under original name, and cause of action, continue:] That on or about the day of , 19 , the name of the defendant was duly changed to the [present name] by order of the Supreme Court duly made and au- thorizing the assumption thereof on said date. 52. Allegation of Objects of Corporation to Show Cor- porate Power.'"' [To the allegation of incorporation, add allegation of the ob- jects for which it was formed, or the business in which it is engaged, as] that the principal business of defendant is to receive and transmit messages by telegraph over lines of wire running through the State of New York and elsewhere, and to deUver the same and to receive, transmit and deliver messages from abroad transmitted by submarine telegraph cables in connection with its lines of wire and proper faciU- ties operated by it for that purpose.'"^ 103 Powers, necessary to its exist- sumed valid in the absence of an ence, and the transaction of business allegation to the contrary. Jacobs comprehended within its corporate v. Monaton, etc., Co., 212 N. Y. 48. objects (when those objects are '"* From Milliken v. West Union alleged) are presumed and need not Tel. Co., 110 N. Y. 403. be alleged in the first instance (26 It is still the common practice, as Ohio St. 562); the objects for which before the Code, merely to allege gen the corporation was formed should erally that the corporation had power, be briefly alleged, if the contract was or was authorized by law to do thi? in furtherance of its peculiar busi- act in question. Marine Bank of ness. Ga. v. Jauncey, 1 Barb. (N. Y.) 486; When a corporate contract is not on Reformed Dutch Church v. Vedder, 4 its face beyond the scope of the power Wend. (N. Y.) 494; Camden, etc., R. of the corporation, it will be pre- R. Co. v. Remer, 4 Barb. (N. Y.) 127. 62 Abbott's Forms op Pleading 53. Allegation of Grant of Special Corporate Powers."^ [Allege incorporation as in preceding forms, except that if chartered by special act of Legislature the allegation should be:] I. That plaintiff at all times hereinafter mentioned was and now is a [domestic] corporation, created under and by virtue of an act of the Legislature of the State of , passed , and entitled "An act to incorporate," etc. II. That by § of said act it is provided as follows:, [Qv^te section conferring special power; or, it may be pleaded by its legal effect.] ""' But unless the power is one of the general powers of all corporations (for which see 2 Kent's Comm. 277; N. Y. General Corporation Law, chap. 23 of the Consolidated Laws, § 11), or un- less the objects of incorporation are alleged or sufficiently implied in its corporate name (Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cases, 393), and the contract in ques- tion may be presumed to be one properly in furtherance of those ob- jects, it is the better practice, where the charter is granted by a private or a foreign statute, to insert a distinct allegation of the statutory power (Frye v. Bank of 111., 10 111. 332; Bard V. Chamberlain, 3 Sandf. Ch. (N. Y.) 31; Hopper u. Covington, 118 U. S. 148), either setting it forth or stating it according to its legal effect. Where this is necessary it may not be enough to say, "that by the statutes of the State it was authorized," etc. See Form 53, and chap. 49, post, presenting the method of pleading a foreign statute. 1°' Under the general legislative policy of late years, corporations are mainly formed under general stat- utes, and special grants of powers are rarely conferred except upon public or quasi-public corporations. If the power is one granted to all corpora^ tions, or to all corporations of a class, the statute granting it is a public statute, of which the courts of the particular State will take judicial notice, and no allegation of such law, or reference thereto, or any facts beyond the incorporation and that it belongs to such class, are necessary. See note to preceding form. If its class depends on population, it is necessary to allege the population; courts will not take judicial notice of it. Bolton V. Cleveland, 35 Ohio St. 319; contra, 65 Ind. 492. ™ If the authority conferred is limited and to be exercised in a par- ticular way, the facts must be sub- sequently stated so as to bring the case within the limitation and direc- tion. Hopper V. Town of Covington, 118 U. S. 148. Capacity to Sue or be Sued, etc. 63 54. By or Against a County in the State of New York. [Under the "County Law," L. 1909, chap. 16, comprising chap. 11 of the C.onsolidated Laws of New York.] [Name of court] A. B., plaintiff, against [Albany] County, ^"^ defendant. I. That the defendant [or, plaintiff] was at all the times hereinafter mentioned, and now is, a municipal corpora- tion '"* existing under the laws of the State of New York."" 65. By or Against a New York City, Town or Village."" [Allege as in Form 54; General Corporation Law, § 3; Town Law, §§ 2, 11.] 56. By or Against a Board, or Other Body, Made a Cor- poration by Statute."* That plaintiff [or, defendant] is a corporation created by and existing under the laws of the State of New York. ""By § 4 of the County Law, an natural persons. Town of Hemp- action or special proceeding for or stead v. Lawrence, 138 App. Div. 473, against a county shall be brought in 122 N. Y. Supp. 1037. An official in the name of the county. control of its property may not for The individual supervisors should that reason sue as representing the not be named as parties. HiU v. city's rights. See note to next form. Supervisors of Livingston, 12 N. Y. ^ A department of a city or town 52. may be created a body corporate, "* A county of the State of New with power to sue and be sued with York is now a municipal corporation, reference to its acts, in which event and as such may sue or be sued as the city or town itself would not be other corporations. See Kennedy v. the proper party. For example, County of Queens, 47 App. Div. 250, boards of education, and trustees of 62 N. Y. Supp. 276; N. Y. Cath. Prot. school districts, are made bodies V. Rockland County, 212 N. Y. 311; corporate in New York (Education N. Y. County Law, § 4. Law, §§ 190, 220), and are in law '09 If the statute law requires notice independent of the municipaUties. and demand prior to bringing suit. See Gunnison v. Board of Education, see Form 58, as to form of allegation. 176 N. Y. 11; Titusville Iron Co. v. "» Such a corporation has the right ::;ity of New York, 207 N. Y. 203; to sue in all courts in like cases as Scott v. Village of Saratoga, 199 id. 64 Abbott's Forms of Pleading 67. By a Public Body Given the Right by Statute to Sue in its Name.''- The [State Board of Pharmacy] for its complaint against the defendant alleges: 68. Against a Municipal Corporation Where Statute Re- quires Previous Notice of Claim. "^ [See, also, Forms under Negligence, for an additional re- quirement in actions against municipalities for personal injuries and injuries to property.] I. [vis in Form 54-] [If general laws, or the charter of the municipality, provide that no action can be maintained against it on a cause of action of the character alleged, until after certain acts have been done by the claimant, allege compliance therewith, as, for example:] "'' 178. Therefore, when the liability is against the board, the action cannot be brought against the individuals composing the board. Reynolds v. Foster, 66 Misc. 133, 123 N. Y. Supp, 273. But public officials in charge of the public property have not by virtue of such control the right to sue with reference to it. See Tuma v. Piepen- brink, 160 App. Div. 225, 145 N. Y. Supp. 474; Pounds v. Lee Ave. Theatre Co., 84 Misc. 623, 147 N. Y. Supp. 815. 11^ No allegation of corporate ca- pacity would be appropriate, as no corporation is created under a provision of statute merely giving the right to a board to sue in its name. See State Board of Phar- macy V. Bellinger, 138 App. Div. 42, 122 N. Y. Supp. 651. The court will take judicial notice of the right of the board to sue. Id. '1' Such provision usually con- stitutes a condition precedent, and the complaint is demurrable if com- pliance therewith is not alleged. Winter v. City of Niagara Falls, 190 N. Y. 198; Biggs v. City of Geneva, 184 N. Y. 580; Reining v. City of Buffalo, 102 N. Y. 368; Ernst v. Kunkle, 5 Ohio St. 523; Chicago, etc., R. Co. V. Langlade, 55 Wise. 116; Rhoda V. Alameda County, 52 Cal. 350. The language of a particular charter may make non-compliance a matter of defense merely (see Hawley v. City of Johnstown, 40 App. Div. 568, 58 N. Y. Supp. 49). An infant of tender years is ex- cused from compliance. Murphy v. Village of Fort Edward, 213 N. Y. 397. "' The municipal charter, or the general laws, as the case may be, must be consulted in each case, and the allegations must be conformed to and show compliance with the statutory requirements. These re- quirements are not unifonn, and the example given in the form is not to be followed until found to be in exact compliance with the controlling pro- vision of law. Capacity to Sue or be Sued, etc. 65 II. That heretofore, and on or about the day of . 19 , [and within months after the date of said injuries] plaintiff duly presented in writing to the fcomptroller] of said defendant the claim hereinafter set forth, and upon which this action is founded, for adjustment, and that more than days have elapsed since such presentation of the said claim. [That said writing was duly verified, and stated the time, place, cause, nature and extent of the plaintiff's injuries.] III. That the said [comptroller] has wholly neglected and refused to make an adjustment or payment thereof for more than days after presentation to him of such claim as aforesaid."' IV. [Allege cause of action.] 59. The Same, Allegation of Giving Required Notice, and Alleging Excuse for Non-presentation Within Stat- utory Period."" That as a result of said injury plaintiff was rendered "* This provision in the New York which shows that there has been no City charter (§ 261) is held to apply offer of adjustment will suffice, to actions ex delicto. Bemreither v. Sweeting v. Staten Isl., etc., R. Co., City of N. Y., 123 App. Div. 291, 176 App. Div. 494, 162 N. Y. Supp. 107 N. Y. Supp. 1006, aff'd 196 961. N. Y. 506. '1' If plaintiff is incapacitated from Ordinarily a claim arising from a presenting his claim within the stat- continuing trespass, and against which utory period, he is entitled to such plaintiff seeks an injunction and past additional* time within which to damages, will not be considered present it as the jury finds reasonable within the statutory requirement, under the circumstances. Forsyth v. unless words are used showing such a , City of Oswego, 191 N. Y. 441; legislative intention. See Sammons Walden v. City of Jamestown, 178 V. Gloversville, 175 N. Y. 346; Flax- id. 217. man v. City of N. Y., 98 Misc. 88, 162 The fact of plaintiff's infancy, un- N. Y. Supp. 161. related to his ability to comply with An allegation that "the claim has the statutory requirement, has no not been adjusted and paid" is in- effect upon it. Winter v. City of sufficient under § 261 of the N. Y. Niagara Falls, 190 N. Y. 198. A City Charter; the allegation must be child five years of age is held not to be "that the Comptroller has neglected precluded from his action by failure and refused," etc. Casey v. City of to file the notice in time. Murphy p. N. Y., 217 N. Y. 192. An allegation Village of Ft. Edward, 159 App. Div. 66 Abbott's Forms of Pleading mentally and physically unable to prepare and present his claim, or to give directions for its preparation and presenta- tion, during the period of days following said injury. That on the day of , 19 , which was within a reasonable time after plaintiff became capable of attending to the preparation and presentation of his said claim,"' he duly presented [etc., as in Form 58]. VII. EXECUTORS AND ADMINISTRATORS 118 60. By Executor or Administrator, Where he Sues in His Own Right. "» The plaintiff above named, administrator of the estate [or, executor of the last will and testament] of M. N.-, deceased, complaining, alleges: 471, 144 N. Y. Supp. 451, aff'd 213 N. Y. 397. A waiver of the condition precedent must be aflBrmatively pleaded in the complaint, if (as is doubted) the statutory requirement can be waived. See Winter v. City of Niagara Falls, supra. ^" A delay of over four weeks after his capacity to transact busi- ness is restored defeats the action. _ Hungerford v. Village of Waverly, 125 App. Div. 311, 109 N. Y. Supp. 438. , • "8 la New York the title of the ac- tion and the pleadings may be con- sidered together to ascertain the true nature of the action, and the action will be treated as an in- dividual action, or as a representa- tive action, as disclosed upon an inspection of the whole record. Chumar v. Melvin, 112 App. Div. 828, 98 N. Y. Supp. 351; First Nat. Bank v. Shuler, 153 N. Y. 163. Where a party's right to sue or be sued depends upon his appointment as personal representative, a com- plaint is demurrable which fails to show such appointment by proper allegation. Kley v. Higgins, 59 App. Div. 581, 69 N. Y. Supp. 826. ^"As, for instance, on a contract made with him or a tort committed against his possession. In such case the words "executor" or "adminis- trator" may be added as words of description, but without the word "as," which would be essential to in- dicate that he was suing in his representative capacity. See Dun- phy V. CaUanan, 126 App. Div. 11, 110 N. Y. Supp. 179; Genet v. De- Graaf, 27 App. Div. 238, 50 N. Y. Supp. 442; Stewart v. Kichey, 17 N. J. L. (2 Harr.) 164. See notes to Forms 61 and 62 as to when action should be brought by or against the representative in his oflBciaJ capacity, and when by or against him as an individual. He cannot sue in the combined capacity of individual and representative. See Taggart v. Drag & Co., 166 App. Div. 381, 150 N. Y. Supp. 41. Capacity to Sue or be Sued, etc. 67 61. Plaintiff Suing as Administrator, i^" [Name of court] A. B., as ^" Administrator of the Goods, Chattels and Credits i of M. N., deceased, plaintiff, against Y. Z., defendant. The plaintiff, complaining as administrator as aforesaid, alleges : 120 The general rule is that, upon contracts made by, or causes of ac- tion accruing to, decedent in his lifetime, the action should be brought in the representative capacity. Upon causes of action accruing after de- cedent's death, upon obligations made to him in his lifetime, or upon a new security, or evidence of debt taken by the executor or adminis- trator for a debt due deceased, the action may be brought in either in- dividual or representative capacity. Upon causes of action accruing to the executor or administrator for a debt due to him as such by reason of a contract made or an act done in the course of his administration of the estate, the action should be in the in- dividual capacity (although it is held that he may sue and recover in his representative capacity). For cases bearing on this question, see Leavitt v. Scholes Co., 210 N. Y. 107; Ehr- man v. Bassitt, 159 App. Div. 752, 144 N. Y. Supp. 976; Bingham v. Marine Nat. Bank, 112 N. Y. 661; Van Buren v. First Nat. Bank, 53 App. Div. 80, 65 N. Y. Supp. 703; Morris v. Hunken, 40 App. Div. 129, 57 N. Y. Supp. 712; Litchfield i: Flint, 104 N. Y. 550; Thompson r. Whitmarsh, 100 id. 35; Laycock v. Oleson, 50 111. 30; McGehee v. Slater, 50 Ala. 431; Burton v. Slaughter, 26 Gratt. (Va.) 914; Ham v. Henderson, SO Cal. 367. The New York Code of Civil Pro- cedure (§§ 449, 1814) has changed the general rule only to the extent that in cases where, before the Code, the action could have been maintained by the plaintiff either individually or in his representative capacity, the ac- tion must now be brought in the latter. Thompson v. Whitmarsh, 100 N. Y. 35; Bingham v. Marine Nat. Bank, 17 Abb. N. C. 431, and note; aff'd 112 N. Y. 661. If plaintiff sues in his representa- tive, when he should have sued in his individual capacity, the allegations showing his representative capacity may be treated as surplusage, or struck out as immaterial. Bright v. Currie, 5 Sandf. (N. Y.) 433; Bannon V. McCrane, 45 N. Y. Super. Ct. 517; Munch V. Williamson, 24 Cal. 167. Such allegations will not save him from personal liability for costs. "1 The omission of the word "as" changes the effect of what follows to a mere descriptio persorue. Genet v. DeGraaf, 27 App. Div. 238, 50 N. Y. Supp. 442; see, also, note under General Instructions as to Parties, at the beginning of this chapter, page 31. 68 Abbott's Forms of Pleading [Here set forth cause of action accrued to plaintiff's intestate; if accruing after his death, on an obligation made to him in his lifetime, set it forth after the next paragraph.] That thereafter and before this action [or, on or about the day of , 19 ] said [or, one] M. N. died in- teetate in the city of , in the county of , and a resident of said county. That on or about the day of , 19 , letters of administration upon the estate of said M. N., deceased, were duly issued and granted "^ to plaintiff by the surrogate of the said county of ,12^ appointing him [temporary] '^* administrator Buokland v. Gallup, 105 N. Y. 453. A count on a debt or promise to de- cedent may be joined with counts by the executor or administrator in hia representative capacity for goods sold by him, or money received for his use. The rule is that counts may be joined in one complaint whenever the money recovered upon them will be assets in the hands of the executor or adminis- trator. Foy V. Evans, 8 Wend. (N. Y.) 530; Valleau v. Cahill, 1 N. Y. City Ct. 47; Lowe v. Bowman, 5 Blackf. (Ind.) 410; French v. Merrill, 6 N. H. 465. But plaintiff cannot join claims in his individual right with claims in his representative right. Bulkley v. Andrews, 39 Conn. 523; Yates V. Kimmel, 5 Mo. 87; Ferrin v. Myrick, 41 N. Y. 315. 122 N. Y. Code Civ. Pro., § 532, ap- plies to the appointment of an execu- tor or administrator by the surrogate. Wheeler v. Dakin, 12 How. Pr. (N. Y.) 537. '23 The date, place and jurisdic- tional facts showing power of ap- pointment must be averred issuably. Sheldon v. Hoy, 11 How. Pr. (N. Y.) 11. N. Y. Code Civ. Pro., §532, provides for the short mode of so doing, given in the form. The surrogate's decree may be attacked collaterally for fraud and collusion in obtaining the letters. Hoes V. N. Y., N. H. & H. R. Co., 173 N. Y. 435 (assets brought into State in order to give jurisdiction). Other- wise their regularity may nbt be questioned. Bacelli v. Del. & Hudson R. Co., 138 App. Div. 623, 122 N. Y. Supp. 849. See, also, Flatasur f. Loser, 211 N. Y. 15; Webster v. Kellogg Co., 168 App. Div. 443, 153 N. Y. Supp. 800. The appointment must be by a court of the State in which suit is brought. Letters in one State do not authorize the maintaining of any suit in the representative capacity in the courts, either State or National, held in any other State. Johnson v. Powers, 139 U. S. 156; Noonan v. Bradley, 9 WaU. (U. S.) 394; Kropff V. Poth, 19 Fed. Rep. 200. But in some States such authority is given by statute. Lawrence v. Nelson, 143 U. S. 215; Hayes «. Pratt, 147 id. 557. And the rule has no application to "^ A temporary administrator, un- der N. Y. Code Civ. Pro., § 2672, may only bring actions to reduce assets of the estate to his possession. Hast- ings V. Toucey, 123 App. Div. 480, 108 N. Y. Supp. 526. Capacity to Sue or be Sued, etc. 69 of all the goods, chattels and credits which were of said deceased, and that plaintiff thereupon duly qualified and en- tered upon his duties as such administrator, and is now such administrator. ^^^ 62. Plaintiff Suing Under Limited Letters of Administra- tion. i^« [After alleging death of intestate, as in preceding form, continue:] That on or about the day of ; 19 , letters of administration limited to the prosecution of this action were duly issued and granted to plaintiff by the surrogate of the county of , and plaintiff thereupon duly qualified thereunder. 63. Defendant Sued as Administrator. ^^'^ [Name defendant in title with official capacity, as plaintiff is named in Form 61 .] suits against the United States. Halstead's Case, 10 Wash. L. II. 650. The assignee of personal estate from an executor or administrator may enforce the assignment. Middle- brook V. Merchants' Bank, 3 Abb. Ct. App. Dec. (N. Y.) 295; Petersen V. Chemical Bank, 32 N. Y. 21. And a foreign representative may sue in his individual capacity. Wilkinson V. Culver, 25 Fed. Rep. 639. The foreign trustees of a trust fund situated here are the proper persons to administer the trust, and not the ancillary administrator with will an- nexed. Bovilla V. Mestre, 34 Hun, (N. Y.), 551. The objection that plaintiff is a for- eign executor or administrator is 'Waived if not taken by demurrer or answer. Bobbins v. Wells, 18 Abb. Pr. (N. Y.) 191, 26 How. Pr. (N. Y.) 15; Hamilton v. Taylor, 2 Cinn. (Ohio) 402. '-'^ It is essential that the death of the intestate, as well as the issuance of the letters by the surrogate, be alleged. Secor v. Pendleton, 47 Hun (N. Y.), 281. A complaint is not defective as against demurrer although it does not allege that the letters have not been revoked, or otherwise negative every cause that could have divested the parties of their representative ca- pacity. Seaman v. Jamison, 146 App. Div. 428, 131 N. Y. Supp. 155. '^ It was held in Kirwin v. Malone, 45 App. Div. 93, 61 N. Y. Supp. 844, that the general allegation of issuance of letters of administration was not supported by proof of the issuance of limited letters. '" Actions arising upon contracts with decedent can be sustained against the executor or administrator as such. Ferrin v. Myrick, 41 N. Y. 315. The contracts of personal 70 Abbott's Forms of Pleading [Set forth cause of action, accruing against deceased.] II. That thereafter and on or about the day , 19 , said [decedent] died intestate. of representatives, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered goods, or property sold and delivered, premises leased, or other consideration moving between the promisee and the repre- sentatives as promisors, are the personal contracts of the representa- tives, and do not bind the estate, notwithstanding the services ren- dered, or goods furnished, or other consideration moving from the prom- isee, are such that the representa- tives could properly have paid for the same from the assets and been al- lowed for the expenditure in the settlement of their accounts. The principle is that a representative may disburse and use 'the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract and thus create a liability not founded upon a contract or obligation of the de- ceased. LeBaron v. Barker, 143 App. Div. 492, 127 N. Y. Supp. 979; O'Brien v. Jackson, 167 N. Y. 31; Parker v. Day, 155 id. 383; Chisholm V. Toplitz, 82 App. Div. 346, 82 N. Y. Supp. 1081, aff'd 178 N. _Y. 599; Austin v. Munro, 47 N. Y. 360; Schmittler v. Simon, 101 id. 554; Thompson v. Whitmarsh, 100 id. 35; Kerchner v. McRae, 80 Nor. Car. 219; Kessler v. Hall, 64 Nor. Car. 60; Wisdom V. Becker, 52 111. 342. For example, an executor may be sued in a representative capacity for money deposited on a sale of testa- tor's land, but must be sued in- dividually for any damages arising from non-fulfillment of the contract. Scheibler v. Alber, 114 App. Div. 146, 99 N. Y. Supp. 706. He may be sued in his representa- tive capacity for a refusal to surrender plaintiff's property in the possession of the deceased as a bailee, if plaintiff only seeks the return of the prop- erty without damages for detention. Moran v. Morrill, 78 App. Div. 440, 80 N. Y. Supp. 120, aff'd 177 N. Y. 563. Otherwise his refusal to sur- render such property makes him liable individually. Hildreth v. Raf- fin, 141 App. Div. 77, 125 N. Y. Supp. 695. An action for a breach of personal duty, such as a neglect to repair a defect on a pubUc street, can also only be maintained against the delinquent individually, and not in his represen- tative capacity. Eustace v. Jahns, 38 Cal. 3. If it is uncertain in which capacity the cause of action exists against the personal representative, he may be sued in both in New York. Code Civ. Pro., § 1815. An equitable action may be main- tained against the estate on behalf of a creditor in case of the fraud or insolvency of the executor, or when he is authorized to make an expenditure for the protection of the trust estate and has no trust fund for the pur- pose. See O'Brien v. Jackson, 167 N. Y. 31, and cases cited; Douglas v. Yost, 64 Hun (N. Y.), 155; Brackett V. Ostrander, 126 App. Div. 529, 110 N. Y. Supp. 779. In the absence of statutory au- thority (which is given in New York by Code Civ. Pro., § 1815) a cause of Capacity to Sue or be Sued, etc. 71 III. That on the day of , 19 , letters of administration were duly issued and granted to the defend- ant by the surrogate of the county of , [wherein said M. N, resided at the time of his death], appointing said defendant administrator of all the goods, chattels and credits which were of said deceased. IV. That thereupon defendant duly -qualified as such ad- ministrator and ever since has been and now is such ad- ministrator. [Allege presentation of claim and refusal to allow in those jurisdictions, where this must be done before suing or where it may affect the costs.] ^^^ action against the defendant in- dividually cannot be united with one against him in a representative capacity. Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munro, 47 id. 360; Pat- terson V. Patterson, 59 id. 574; De- mott V. Field, 7 Cow. (N. Y.) 58 Myer v. Cole, 12 Johns. (N. Y.) 349 Terhune v. Bradley, 16 N. J. L. 54 Kayser v. Disher, 9 Leigh (Va.), 357. Section 1815 of the New York Code of Civil Procedure allows the joining of causes of action against an execu- tor or administrator personally and in his representative capacity, where they grow out of the same transaction or transactions connected with the same subject of action, do not require different places or modes of trial, and are not inconsistent. See Form 65. If causes of action are improperly joined, the objection will be waived unless taken by demurrer. See Brooklyn Imp. Co. v. Lewis, 136 App. Div. 861, 122 N. Y. Supp. 111. A complaint against defendant as representative may be amended to charge him personally. Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262; Tighe v. Pope, 16 Hun (N. Y.), 180; contra, Taylor !;. Taylor, 43 Ala. 649. A defendant cannot be held liable individually in an action against him in a representative capacity. Chris- tian V. Morris, 50 Ala. 585. 128 Under N. Y. Code Civ. Pro., § 1836 (as amended in 1915) an award of costs may only be made if the payment of the claim was un- reasonably resisted or neglected. An allegation of presentation and rejection of the claim in suit, if admitted by the answer, concludes the defendant on this point. Pers- backer v. Murphy, 153 App. Div. 492, 138 N. Y. Supp. 437. 72 Abbott's Forms of Pleading 64. Plaintiff Suing [or Sued] as Executor.^-^ [Sustained in Brenner v . McMahan, 20 App. Div. 3, 46 N. Y. Supp. 643.] [Title of court.] A. B., as '^° Executor of the Last Will and Testament of M. N., , deceased, plaintiff, against Y. Z., defendant. The plaintiff, complaining as executor as aforesaid, alleges : [Set forth the cause of action accruing to the decedent.] II. That thereafter, and on or about the day of ,19 , said [decedent] died, leaving a last will and testament wherein and whereby plaintiff was appointed sole executor.'" III. That on or about the day of , 19 , said will was duly admitted to probate by the surrogate of the county of , in which said county the said [de- cedent] resided at the time of his death, and letters testa- mentary upon said will were thereafter duly issued and granted by said surrogate to plaintiff, as sole executor, and that plaintiff thereupon duly qualified as such executor, "' For a presentation of the rules cially if it is alleged he accepted the governing the capacity in which the trust, but it is better practice to name action should be brought, see Leavitt him in both capacities. Rowe v. V. Scholes Co., 210 N. Y. 107, and Rowe, 103 App. Div. 100, 92 N. Y. notes to Forms 61 and 63. Supp. 491. If the executor is also a trustee ""Without the word "as," or its under trusts created by the will, it is equivalent, the addition is a mere not necessary he should also be de- descriptio personce. Genet v. De- scribed as trustee in order that the Graaf, 27 App. Div. 238, 50 N. Y. trust he represents shall be before the Supp. 442; Stilwell v. Carpenter, 2 court. See Bruner v. Torrey, 141 Abb. N. C. (N. Y.) 238, and note; 62 App. Div. 838, 125 X. Y. Supp. 915. N. Y. 639. See, also, note on page 31. Where a will does not recognize "' It is not necessary, in New York, any distinction between the office of to join as parties, persons named in executor and that of trustee, it is not the will as executors, but to whom a demurrable defect to name the letters have not been issued. Code representative only as executor, espe- Civ. Pro., § 1818. Capacity to Sue or be Sued, etc. 73 and has ever since been and is now acting as such executor. [// any right over testator's realty is to be asserted, allege the provision in will by copy or legal effect.] ''- [If the decedent's estate is sought to be held upon a contract made by the executor, ^^^ allege: That said executor was au- thorized by" said will to enter into the agreement aforesaid, in and by the following provision of said will — which quote.] 66. Against a Person Individually and as a Representa- tive."^ Plaintiff above named for his cause of action against Y. Z., individually and as [executor of the last will and testament of] M. N., deceased, alleges: 66. Allegations in Supplemental Complaint of Revivor and Continuance of Action by Personal Represent- ative."^ [Adapted from Chumar v. Melvin, 112 App. Div. 828, 98 N. Y. Supp. 351.] "^ Othera'ise no right or interest 52 App. Div. 424, 05 N. Y. Supp. is shown. See Burdick v. Cheese- 260; Leggett v. Pelletreau, 213 N. Y. brough, 94 App. Div. 532, 88 N. Y. 237. Supp. 13. Such a joinder is not allowable "' The estate is only liable in case ■ without statutory authority therefor, express authority has been conferred See cases cited in note to Form 63. on the executor, to make the agree- An action may be brought by a ment. Met. Trust Co. v. McDonald, person suing both individually and 52 App. Div. 424, 65 N. Y. Supp. 260. in his representative capacity, if but a "* Under N. Y. Code Civ. Pro., single cause of action is stated and § 1815. Allowed when the complaint the recovery will be for the benefit of sets forth a cause of action against the the estate. See Moss v. Cohen, 158 defendant in both capacities, or states N. Y. 240. facts which render it uncertain in "^jt vdll be optional with plain- which capacity the cause of action tiff's attorney whether in this sup- exists against him; also when two or plemental complaint to re-allege the more causes of action are set forth .decedent's cause of action, or to limit against him in different capacities, the allegations to those given in this all arising out of the same transac- form. See notes to Supplemental tion. Met. Trust Co. v. McDonald, Pleadings, Form 18. 74 Abbott's Forms of Pleading That after the commencement of this action, to wit, on or about the day of , 19 , the said [decedent] died; that thereafter, and on or about the day of , 19 , his last will and testament was duly ad- mitted to probate by the surrogate of the county of , and letters testamentary were thereon duly issued to this plaintiff, who thereupon duly qualified as executor thereof. That thereafter upon the application of this plaintiff, this action was duly revived and continued in his name, as such executor, by an order of this court duly made on the day of , 19 . 67. Allegation of Probate, and Letters, Granted by Special Officer Acting in Absence of Sixrrogate."® That on or about the day of , 19 , said [decedent] died at Binghamton in the Coimty of Broome, N. Y., leaving a last will and testament, in and by which the plaintiffs were duly appointed executors thereof. That there was no officer quaUfied to act as surrogate in the proceeding for the probate of said last will and testament in the surrogate's court of said county of Broome, and that the surrogate of said county thereupon duly made a certifi- cate stating such disquaUfication, specifying the grounds thereof, and designating Hon. , surrogate of the adjoining county of Tioga, to act in his place in said pro- ceeding and duly filed the same in his office; and that other and all necessary proceedings were thereafter duly had so that jurisdiction became vested in said , surrogate, and that on or about the day of , 19 , said last will and testament was duly proved and duly ad- mitted to probate by said surrogate, and letters testa- mentary thereon duly issued and granted to the plaintiffs as such executors by said surrogate; and the plaintiffs there- upon duly qualified as such executors, and entered upon the discharge of the duties of such office, and still are the duly '" From the complaint in Dwight 493; see N. Y. Code Civ. Pro., V. Germania Life Ins. Co., 84 N. Y. §§ 2485 et seq. Capacity to Sue or be Sued, etc. 75 appointed and constituted executors of the last will and testament of said [decedent]. 68. Defendant an Administrator with the Will Annexed, i^' [Title of court and cause, and commencement as indicated in preceding forms.] II. [Alkge death of testator j probate of will, and, if executor died after appointment, the issuance of letters testamentary, arid qualification of executor as in preceding form.] III. That on or about the day of , 19 , said [executor] departed this life [or, resigned, and his resigna- tion was duly accepted by said surrogate]; that thereafter and on or about the day of , 19 , letters of administration with the will annexed were duly issued and granted by the said surrogate to the defendant, appointing him administrator with the will annexed of the goods, chat- tels and credits which were of said [decedent], and that said defendant thereupon duly qualified and has ever since been and is now acting as such administrator. 69. Plaintiff Suing as Administrator de bonis non.^'* [Title, etc., as suggested in preceding forms.] II. [Allege death, intestacy and granting of letters of ad- ministration as in Form 63.] III. That on or about the day of , 19 , said [administrator] died without having wholly administered upon the assets of the estate of said [intestate]; that thereupon and on or about the day of , 19 , letters of administration upon the goods, chattels and credits of said [intestate] left unadministered by said [administrator] were duly issued and granted by said surrogate to this plaintiff, who duly qualified and continues to act as such administrator. '" Adapted from complaint in "s Adapted from Lucas v. Todd, 28 Wheeler v. Dakin, 12 How. Pr. Cal. 182. (N. Y.) 537. 76 Abbott's Forms of Pleading 70. Allegation of Co-executor's Refusal to Join.'^^' Th^t plaintiff has applied to her co-executor, the defend- ant H. C. above named, to unite with her to [have the said clause of the said will interpreted and construed by this court, and for a determination as to who would be entitled to said one-third of said residuary estate], but that said executor refused so to do, and for such reason is made a defendant in this action."" 71. Plaintiff Suing as Ancillary Executor."^ [Title of court and cause, and commencement as indicated in preceding forms.] I. [Allege cause of action accruing to decedent] ^*^ M. That said [decedent] departed this life at , in the State of , [and was, at the time of his death, a resident of said State]. "' III. That said [decedent] left a la-st will and testament [which was executed in said State] '*' wherein and whereby he appointed plaintiff sole executor thereof; that thereafter, and on or about the day of , 19 , said will was duly admitted to probate by the Court of the county of , in said State, and letters testamentary 139 From the complaint in Powers sued on in another State. Fox v. V. Cassidy, 79 N. Y. 602. Carr, 16 Hun (N. Y.), 434. i« N. Y. Code Civ. Pro., § 448. "' Under N. Y. Code Civ. Pro., "'In the absence of statutory § 2695, the foreign probate must have authorization (now given by Code been either where the deceased ro- Civ. Pro., § 1836a) a foreign executor sided or the will was executed. The rpay not sue in his representative defendant may contest the question capacity, for the estate, in this State of the surrogate's jurisdiction where without ancillary appointment. See the foreign record showed an absence Taylor v. Syme, 162 N. Y. 512, and of the jurisdictional requirements. cases cited. He may, however, sue Taylor v. Syme, 162 N. Y. 513. by virtue of his ownership of the debt. If the testator was a non-resident. See Newton v. Jay, 107 App. Div. and left realty within this State, the 457, 95 N. Y. Supp. 413. regular probate proceedings must 1" An ancillary executor or admin- be had and principal letters issued, istrator may sue a debtor who has Spratt. v. Syms, 104 App. Div. 232, voluntarily come into the State, pro- 93 N. Y. Supp. 728. vided the debt has not been paid or Capacity to Sue or be Sued, etc. 77 were thereupon duly issued and granted by said court to the plaintiff who duly qualified as such executor; that said Court had jurisdiction and was duly authorized and empowered by the laws of the State of to admit said will to probate and to issue said letters as aforesaid."^ IV. That thereafter, and on or about the day of ,19 , a duly exemplified copy of said will was duly recorded and ancillary letters testamentary thereupon were duly issued and granted by the surrogate of the county of to plaintiff, appointing him ancillary executor of said will, and that thereupon plaintiff duly qualified and has ever since been and now is acting as such executor."^ 72. Plainti£E Suing as Ancillary Administrator."^ [/ and II as in preceding form.] III. That said [decedent] died intestate, and that on or about the day of , 19 , letters of adminis- tration upon his estate were duly granted and issued by the Court of the county of , in said State, to plaintiff, who duly qualified as administrator. IV. That thereafter and on or about the day of ,19 , a duly exemplified copy of said letters of administration was duly presented to the Surrogate's Court 6i the county of , and thereupon ancillary letters of administration were duly issued and granted by said surro- '" Adapted from Schluter v. Bow- of Gray, Jr., 116 Pa. St. 256. But ery Bank, 117 N. Y. 125. voluntary payments to such foreign '■*' It has been held not necessary administrator are valid (Schluter v. t-o allege the probate of the will in Bowery Sav. Bank, 117 N. Y. 125), the foreign country. Leland v. even after the appointment of a local Manning, 4 Hun (N. Y.), 7. administrator when the payment is i'" In the absence of statutory made without notice of the latter's authority (such as now given by appointment. Maas v. German Sav. N. Y. Code Civ. Pro., § 1836a) a Bank, 176 N. Y. 377. foreign administrator must procure An ancillary administrator has ancillary letters before suing. Maas the same general powers as a domestic V. German Savings Bank, 176 N, Y. administrator, with some exceptions. 377, and cases cited; Wilkinsti.EUett, See N. Y. Code Civ. Pro., §2702; 108 U. S. 256; Matter of Cape May, Smith v. Second Nat. Bank, 169 etc. Co., 51 N. J. Law, 78; Appeal N. Y. 467. 78 Abbott's Forms of Pleading gate to plaintiff, who duly qualified and has since been acting as such ancillary administrator. 73. Appointment of Plaintiff or Defendant as Administra- tor by Foreign Court."' [Under N. Y. Code Civ. Pro., § 1836-a.] '« That said [decedent] died an inhabitant of and domiciled in and a resident of , in the county of , in the State of ; that thereafter, and 6n or about the day of , 19 J letters of administration on the goods, chattels arid credits of said [decedent], were duly issued and granted to the [defendant] by the Court of said county of , in said State; that said Court had jurisdiction and was duly authorized and em- powered by the laws of the State of to issue said letters as aforesaid. 74. Against an Executor of His Own Wrong (de son tort.)»« [Title of court and cause.] I. [Allege character of plaintiff, as rightful executor, or cred- itor, etc.] "" '" Adapted from Schluter D. Fow- 1882). A grantee of decedent in ery Savings Bank, 117 N. Y. 125. fraud of creditors may be treated as '^ As to what special circumstances an executor de son tort, and the right will, in the absence of statutory au- of action is in the creditors, and not in thority, justify the court in enter- the personal representatives. Hawes taining an action against a foreign v. Leader, Cro. Jac. 270; Osborne v. representative, see Bergmann v. Lord, Moss, 7 Johns. (N. Y.) 161. The per- 194 N. Y. 70, and cases cited. sonal representatives cannot avoid "' Subsequent letters legalize the the transfer. A legatee may also former tortious acts. Rattoon v. sue (1 Wms. Exrs. 265) by joining Overacker, 8 Johns. (N. Y.) 126; the rightful executor, if any. Nease Priestv. Watkins, 2Hill(N. Y.),225; w. Copehaf t, 8 W. Va. 95. Or a next 1 Wms. Exrs. 269. The action by a of kin, alleging no outstanding debts, creditor is ex contractu, not ex delicto. Ferguson v. Barnes, 58 Ind. 169. Martin v. Hand, 11 R. I. 306. He may be proceeded against in '™ At common law, an executor of equity as well as at law. Baumgart- his own wrong may be sued by a ner v. Haas, 16 Wash. L. R. 22. creditor. McMeekin v. Hynes (Ky., ' ■ sinlute law in New York (De- Capacity to Sue or be Sued, etc. 79 II. That defendant, as hereinafter set forth, is an inter- meddler with the property and effects of said [decedent], left by him within this State. III. That after the death of said [decedent], defendant took, seized upon and collected the property and effects of said deceased, left by him within this State, to the amount and value of dollars, and has retained and does now retain the same. VIII. HUSBAND AND WIFE 151 75. Husband and Wife as Plaintiffs. ^^ I. That on or about the day of , 19 , at , the plaintiffs, A. B. and C. B., inter- married, and have ever since been and now are husband and wife. cedent Estate Law, § 112), a person meddling with a decedent's estate is not liable as an executor de son tort, but as a wrongdoer, in an ac- tion by the personal representatives. Thompson v. N. Y. Life Ins. Co., ,50 N. Y. Super. Ct. 225. This statute transfers the creditor's right of action to the personal representatives. Bab- cock V. Booth, 2 Hill (N. Y.), 181. But if they refuse to sue, the creditor may bring suit, joining the personal representatives as defendants. Bate V. Graham, 11 N. Y. 237. The next of kin cannot sue, but must secure the appointment of an administrator for that purpose. Muir v. Trustees, etc., 3 Barb. Ch. (N. Y.) 477. The personal representative is the proper plaintiff in an action to avoid a fraudulent transfer by the decedent. Babcock v. Booth, supra. Or, an executor de son tort may be sued by a creditor of decedent at com- mon law as though he were the exec- utor. Campbell v. Toucey, 7 Cow. (N. Y.) 64. The declaration may be the same in form as though he were the rightful executor. Lee f , Chase, 58 Me. 432. •*' At common law, the husband was obliged to join in the capacity of the guardian of her rights in all cases where the right of action was not in the husband alone. The common-law rule compelled the join- der of husband and wife when the cause of action would survive to her in the event of his death. 1 Chitty PI. 73, et seq. For references to statutory changes in New York, and other States, see note 184 to Married Women, post. In New York a married woman may sue her husband at law, even to enforce an agreement for her sup- port. Effray v. Effray, 110 App. Div. 545, 97 N. Y. Supp. 286. See, further, Fornjs 90-93, and notes. "2 When, fpr example, they sue as tenants of an estate by the en- tireties. 80 Abbott's Forms of Pleading 76. Against Husband and Wife on Debt of the Wife, Con- tracted Before Marriage, Where the Husband has Acquired, by An Ante-nuptial Agreement, Separate Property of the Wife."^ I. That the defendant W. Z. and the defendant Y. Z. intermarried on the day of , 19 , at II. That previous to the marriage of the defendants, while said W. Z. was sole and unmarried [here set forth the cause of action against her]. III. That previous to the marriage of the defendants the said W. Z. owned certain property, to-wit : [here describe the property of the wife which the husband acquired]. IV. That before their marriage the defendants entered into an ante-nuptial agreement [here state effect of agreement as to transfer of property by wife to husband], and that the value of the separate property of said defendant W. Z. [wife] so acquired by the defendant Y. Z. [husband] was the sum of at least dollars.'*'* 77. The Same, Where the Husband has Acquired, after Marriage, Property Which was Before Marriage the Property of the Wife. [I, II and III, as in preceding form.] IV. That since the marriage of the defendants, and * be- fore this action, the defendant, [wife], conveyed to the de- fendant [husband], [here state what was conveyed], and that the value of the separate property of the defendant [wife], so acquired by the defendant [husband], was the sum of at least dollars. "'Under N. Y. Domestic Rela^ N. Y. Code Civ. Pro., § 450, as stating tions Law, § 54. no cause of action against him, and '°* Without these allegations in he not being a proper party simply in paragraphs II and III and IV the his capacity as husband in an action complaint would be demurrable as upon his wife's debt, to the defendant husband, under Capacity to Sue or be Sued, etc. 81 78. The Same, Where the Husband has Acquired that Which Became the Separate Property of his Wife After Marriage. [I and II, as in Form 76.] III. That since the marriage of the defendants, certain property, to wit: [here describe her separate property], became the sole and separate property of the defendant [wife], by inheritance [or, gift, grant, devise, or, bequest] from a person other than her said husband, to wit: one M. N. IV. That thereafter and [continue as in the preceding form from the *.] IX. INFANTS 79. By Infant Plaintiff, Showing Appointment of Guardian a^ Litem. 15' [Name of the court, etc.] A. B., an Infant, by C. D., his Guardian ad litem, plaintiff, i**' against Y. Z., defendant. The plaintiff, complaining of the defendant, alleges: '*' At common law, and under the power of a guardian in socage over N. Y. Revised Statutes, an infant's his infant child's real property, right to bring an action in his own Domestic Relations Law, § 80; An- name by a guardian ad litem was derson v. Dodge, 158 App. Div. 201, limited. He could not maintain an 143 N. Y. Supp. 132. action relating to his real estate, but The N. Y. Code of Civil Procedure such action had to be brought in the provides that an infant may main- name of his general guardian, or tain actions which he has, but before guardian in socage. Holmes v. Seely, the summons therein is issued a , 1 Wend. (N. Y.) 75; Beecher v. guardian ad litem must be appointed Grouse, 19 id. 306. At the present (§§468, 469, 1686). time, the parent, in the absence of a It seems, that under the provisions general guardian, may exercise the of the Code of Civil Procedure, it '^' The infant is the real party and Vincent v. Starks, 41 Wise. 458; Jack- his action should be brought in his son v. Davis, 29 Ga. 219; Anderson v. own name by the guardian. Cases Watson, 3 Met. (Ky.) 509; Emerie v. supra; Whittern v. State, 36 Ind. 196; Alvarado, 64 Cal. 593. 82 Abbott's Foems of Pleading I. That the plaintiff is an infant, under the age of twenty- one years [may add, though it is not generally material, to wit, of years, on the day of , 19 ]. II. That on the day of , 19 , at , the said C. D. was, by an order of this court '" duly made and entered on said day [or, by an order made by Hon. , a justice of this court; or, by Hon. , is the better practice, even if actions by general guardians are not ab- solutely prohibited, that all actions, whether relating to an infant's per- son or estate, should be brought in his name by a guardian ad litem, un- less the legal title to the cause of action is in the guardian. See Perkins V. Stimmel, 114 N. Y. 359; Segelken v. Meyer, 94 id. 473; Carr v. HufT, 57 Hun (N. Y.), 18. Under N. Y. Code Civ. Pro., § 2607, an action upon the official bond of the personal rep- resentative or guardian, to recover the sum uncollected on a surrogate's decree, must be brought by the gen- eral guardian if the decree orders pajTnent made to him. Van Zandt V. Grant, 175 N. Y. 150. But there are a number of cases in the lower courts which hold that notwithstand- ing the provisions' of the Code of Civil Procedure a general guardian may bring an action relating to the infant's estate as a trustee of an express trust. Schlieder v. Dexter, 118 App. Div. 417, 99 N. Y. Supp. 1000; Wall v. Bulger, 46 Hun (N. Y.), 346; Hauenstein v. KuU, 59 How. Pr. (N. Y.) 24; Thomas v. Bennett, 56 Barb. (N. Y.) 197; Andrews v. Town- send, 56 N. Y. Super. Ct. 140; 16 N. Y. State Rep. 876; Carr v. Huff, 57 Hun (N. Y.), 18; Bunce v. Bunce, 27 Abb. N. C. (N. Y.) 61; Seaton v. Davis, 1 N. Y. Supm. Ct. (T. & C.) 91. See, however, N. Y. Code Civ. Pro., § 1686. The failure to appoint a guardian ad litem for an infant plaintiff before action affects only the regularity of the procedure, and does not deprive the court of jurisdiction. The court may at the trial appoint a guardian nunc pro tunc and allow an ameild-' ment of the pleadings to conform therewith. Rima v. Rossie Iron Works, 120 N. Y. 433; Parks v. Parks, 19 Abb. Pr. (N. Y.) 161. Plaintiff's infancy and the time, place and source of the appointment of the guardian ad litem should be alleged. Grantman v. Thrall, 44 Barb. (N. Y.) 173; Hanly v. Levin, 5 Ohio, 228, 2 Saund. 117, f. note 1, 1 Lev. 224; 2 Arch. Pr. 940; Stanley v. Chappel, 8 Cow. (N. Y.) 235; Hul- bert V. Young, 13 How. Pr. (N. Y.) 413; and see GiUett v. Fairchild, 4 Den. (N. Y.) 83; Beach v. King, 17 Wend. (N. Y.) 197; White v. Young, 7 Barb. (N. Y.) 204, as explained by White V. Joy, 13 N. Y. 82; People ex rel. Crane v. Ryder, 12 id. 433. The objection that the allegation of appointment is too general cannot be taken by demurrer, but should be taken by motion. Sere v. Coit, 5 Abb. Pr. (N. Y.) 481. '" The guardian ad litem in an ac- tion for partition can be appointed only by the court. N. Y. Code Civ. Pro., § 1535. Capacity to Sue or be Sued, etc. 83 county judge for county], duly appointed the guard- ian of the plaintiff for the purposes of this action. 80. The Same ; a Shorter Form. [Commencement and I as in preceding form.] II. That on the day of , 19 , at , the above-named C. D. was, by Hon. , a justice of this court [or, county judge of county], duly ap- pointed guardian of the plaintiff for the purposes of this action. 81. Plaintiff Suing as General Guardian. ^'^ That on or about the day of j 19 > plain- tiff was duly appointed general guardian of the [person and] estate of M. N., an infant, by an order didy made by the surrogate of the county of ; that plaintiff duly filed the bond required by said order and duly qualified as such general guardian. ^^' X. JURISDICTIONAL ALLEGATIONS IN CASE OF CITIZENS, ALIENS, CONSULS AND RESIDENTS 82. Allegation in Action Between Citizens (or Corpora- tions) of Different States, on a Common-Law Cause of Action in United States Court. That this plaintiff is a citizen "" of the State of and resides at ; "^ [or, a corporation duly organized '5« See cases cited in note 155 to 253, 30 L. ed. 914, 7 Sup. Ct. Rep. Fonn 79, as to when a general 873. In an action by executors, an al- guardian may sue on behalf of his legation that they, as such executors, ward. etc., are citizens, etc., is insufficient. 16' Adapted from allegation sus- The citizenship as persons is required, tained in Schheder v. Dexter, 114 Amory v. Amory, 95 U S. 186. App. Div. 417, 99 N. Y. Supp. "'Residence of one or the other 1000. party must be within the district '™ An allegation of residence does where the action is brought. Laskey not avail as an allegation of citizen- v. Newtown Min. Co., 50 Fed. Rep. ship. Menard v. Goggan, 121 IT. S. 634. 84 Abbott's Forms op Pleading under the laws of the said State of , ^^- and has its principal place of business at ]. That the defendant is a citizen of the State of and resides at ; [or, a corporation duly organized under the laws of the §tate of , and has its principal place of business at ]. [Where the action is on an assigned claim, see also Form 28] [If the value does not appear from the other parts of the com- plaint it is well to allege it; although the practice suffers show- ing it by affidavit on the trial or hearing. Abb. Brief on Plead., Med., p. 711.] 83. The Same, in an Equity Suit in United States Court. District Court of the United States. [Northern District of New York.] A. B., plaintiff, | against ^ In Equity. Y. Z., defendant. To the Honorable, the Judge of the District Court of the United States, in and for the [Northern District of New York]: A. B., a citizen of the State of and resident of in , [or, a corporation duly organized under the laws of the State of , and having its principal place of business at , in the State of ], brings 182 This sufficiently shows citizen- leged. Grand Trunk R. Co. i'. ship. Dodge v. Tulleys, 144 U. S. Tennant, 14 C. C. A. i09, 21 U. S. 451, 36 L. ed. 501, 12 Sup. Ct. Rep. App. 682, 66 Fed.Rep. 922; Insurance 728. A corporation cannot acquire Co. v. Preach, 18 How. (U. S.) 404; residence or citizenship in a State Lonergan v. Illinois Cent. II. Co., 55 other than the one by which it was Fed. Rep. 550; Muller v. Dows, 94 incorporated. Shaw v. Quincy Min- U. S. 444; Frisbie v. Chesapeake, etc., •ing Co., 145 U. S. 444; Southern R. Co., 57 Fed. Rep. 1; Ward v. Pacific Co. V. Denton, 146 id. 202. It Blake Mfg. Co., 56 id. 437. Compare is not sufficient to allege that a Chicago Lumber Co. v. Comstock, corporation is a citizen of a named 18 C. C. A. 207, 34 U. S. App. 414, State. Under the laws of what 71 Fed. 477. State it was organized, must be al- Capacity to Sue or be Sued, etc. 85 this bill against Y. Z., a citizen of the State of , [or, a corporation duly orgatiized under the laws of the State of , and having its principal place of business at , in ].'*' And thereupon your orator complains and says, that [etc.]. 84. The Same, by Alien Against Citizen on a Common- law Cause of Action in a United States Court. [Sustained by Breedlove v. Nicolet, 7 Pet. (U. S.) 413; Bradstreet v. Thomas, 12 id. 59.] i«^ I. That plaintiff ^^■' is an alien and a subject of the United Kingdom of Great Britain and Ireland [or, and a citizen of the Republic of France; or, othenoise according to the fad] and resides at ^^ ; or, that plaintiff is a corporation created and existing by and under the laws of the kingdom [etc.], or, republic [etc.], and has its principal place of business at . ; ^^'' and that defendant is a citizen of the State of and resides at [or, is a corporation or- ganized under the laws of the State of and having its principal place of business at ]. ^" In those cases where the federal tionality showing alienage must be jurisdiction depends on different alleged. Wilson v. City Bank, 3 citizenship, settled practice treats a Sumn. 422. But a descriptive state- description like this as a sufficient ment is as good as a technical allega- allegation. Abb. Brief on Plead., tion or averment. Waters v. Baril, 18 2cl ed., p. 723; Sharon v. Hill, 10 Law; Ed. U. S. Ct. 878. Sawy. 634, 23 Fed. 353. "* Plaintiff may sue as aUen even In other respects see notes to last though he sue for himself and others form. of a class (see Form 19) among which "* These allegations are required are citizens of the same State as in case of alienage under acts of defendant. McHenry i>. N. Y., Penn. March 3, 1887, and of August 13, & Ohio R. R. Co., 25 Fed. Rep. 05. 1888, 25 Stat, at L. 433; Hodgson v. *" Residence of the alien within the Bowerbank, 5 Cranch (U. S.), 303; United States, even in the State of Bradstreet v. Thomas, 12 Pet. (U. S.) which the other party is a citizen, ia 59; Jackson v. Twentyman, 2 id. 136; no ground of objection. Breedlove unless a -federal question is presented v. Nicolet, 7 Pet. (U. S.) 413. by the pleadings. Lacroix v. Lyons, '*' Sustained by Steamship Co. v. 27 Fed. Rep. 403. The foreign na- Tugman, 106 U. S. 118. 86 Abbott's Forms of Pleading 8&. By Alien Against Citizen in United States Court in an Equity Suit. [Supported by authorities under Form 83, and by Waters V. Baril, 18 Lawy. Ed. U. S. Ct. 878.] [Title and address as in Form 83.] A. B., of [place of abode], an alien and a subject of the king- dom of [etc., or, and a citizen of the republic of, etc.; — or, The A. B. Company, a corporation created, etc., as in Form 8^], brings this bill against Y. Z. of [place of abode], a citizen of the State of [or, a corporation created, etc., as in Form 8Jf\, and thereupon your orator says that [etc.]. 86.- Allegation of Residence of Defendant when Necessary to Give Jurisdiction to a Court of Limited Jurisdic- tion.^^' That the defendant is a resident "' of the [city of , in the] county of , in this State. ^^'' "'Such fact, when necessary, is presumed in a court of general juris- diction, but it must, if necessary to jurisdiction in an inferior court of limited jurisdiction (as the county courts of New York State), be al- leged, or the complaint will be de- murrable because deemed to show on its face want of jurisdiction. Gilbert V. York, 111 N. Y. 544. But the objection is waived by the defendant's appearing and answering to the merits without raising the objection. Meyers v. Am. Locomo- tive Co., 201 N. Y. 163. And such missing allegation may be supplied by amendment. Henneke v. Schmidt, 121 App. Div. 516, 106 N. Y. Supp. 138. 169 Where the defendant is a corpo- ration, it is deemed a resident within the requirements of jurisdiction of the county courts when any part of its business is actually located in a county. See N. Y. Code Civ. Pro., § 341, as amended in 1911. But the allegation in the pleading need only be the resultant fact, viz., that it is a resident of the county, supported at the trial by proof of the location of its business. ""The allegation refers to de- fendant's residence at the time of the commencement of the action, unless controlled by other allegations show- ing that a different date was in- tended. Simmons Co. v. CosteUo, 63 App. Div. 428, 71 N. Y. Supp. 577; Barker v. Cunard S. S. Co., 91 Hun, 495, 36 N. Y. Supp. 256, aff'd 157 N. Y. 693; Curran v. Arp, 141 App. Div. 38, 125 N. Y. Supp. 758. All defendants must when charged with joint liability be residents of the county. Kortwell v. Manhattan Co., 162 App, Div. 285, 147 N. Y. Supp. 586. Capacity to Sue or be Sued, etc. 87 XI. INCOMPETENT PERSONS i" 87. By Committee of an Incompetent [a Limatic, Idiot or Habitual Drunkard] Under the New York Statutes. "= [Name of court.] A. B., as Committee [of the Prop- erty within this State] *" of M. N., an Incompetent Person, I plaintiff,!^" against W. X. and Y. Z., defendants. The plaintiff, complaining as committee of M. N., an incompetent person, alleges: "' An action may be commenced against an incompetent who has not had his incompetency judicially de- termined; in such case, a committee may be subsequently appointed, and be brought in to defend. See Carter V. Burrall, 80 App. Div. 395, 81 N. Y. Supp. 30. Or, a guardian ad litem may be appointed to protect the interests of the incompetent, in which case the action will proceed against the incompetent, the guardian ad lilem not being substituted, or added as a party but the court requiring notice to him of further proceedings and giving him the right to intervene for the incompetent's protection. Behlen v. Behlen, 73 App. Div. 143, 76 N. Y. Supp. 747. So the court may appoint a guard- ian ad litem for an incompetent plain- tiff, for whom no committee of the property has been appointed. Moore V. Flagg, 137 App. Div. 338, 122 N. Y. Supp. 174. "* As to the history of the judicial custody of incompetents, see Sporza V. German Savings Bank, 192 N. Y. 8; Matter of Andrews, 192 N. Y. 514. 178 Where a foreign committee acts under an ancillary appointment in this State it may be well to indicate its authority. See Ward v. Chelsea Exch. Bank, 153 App. Div. 638, 138 N. Y. Supp. 720. '"Prior to Laws of 1845 (Chap. 112), it was requisite that actions on behalf of a lunatic should be brought in the lunatic's name. Petrie v. Shoemaker, 24 Wend. (N. Y.) 85; Lane v. Schermerhom, 1 Hill (N. Y.), 97; McKillip v. McKillip, 8 Barb. (N. Y.) 552. But where a lunatic was a necessary party to a bill filed by the committee, a biU "of A., com- mittee, etc., of B.," was deemed merely the committee's bill. Gorham V. Gorham, 3 Barb. Ch. (N. Y.) 24. Under the act of 1845, however, committees might sue in their own names "for any debt, claim or de- mand transferred to them, or to the possession or control of which they are entitled as such committee." The N. Y.- Code of Civil Procedure (§ 2340) provides that a committee "may maintain, in his own name, adding his official title, any action or special proceeding which the person, with respect to whom he is appointed, 88 Abbott's Forms of Pleading I. [Allege cause of action accruing to incompetent.] II. That on the day of , 19 , in a pro- ceeding duly instituted in the Court of this State, in and for the county of , by an inquisition then duly taken and returned [or, upon a verdict of a jury then duly made and rendered]/" said M. N. was duly found by said court to be an incompetent person, and thereupon this plaintiff was, by an order duly made by said court "^ on the day of , 19 , duly appointed committee of [the person and] the property [or, if of a particular portion of the property, specify what] ""^ of said M. N. ; and that this plaintiff thereupon duly qualified as such committee, and entered upon the discharge of the duties of his said office, and continues to be such committee."^ might have maintained, if the ap- pointment had not been made." It has been held, under the Code of Civil Procedure (§ 2340), and also under the act of 1846, that an action for the purpose of asserting the title of an adjudged lunatic to real estate is still properly brought in the lunatic's name. Skinner v. Tibbitts, 13 N. Y. Civ. Pro. R. 370; Burnet v. Book- staver, 10 Hun (N. Y.), 481; Field v. Fowler, 2 id. 400. But it has also been held that, under the Code pro- cedure, the committee may maintain such an action in his own name as a trustee of an express trust. Fields v. Fowler, 2 Hun (N. Y.), 400; Person V. Warren, 14 Barb. (X. Y.) 488; and see Davis v. Carpenter, 12 How. Pr. (N. Y.) 287; contra, Burnet v. Book- staver, 10 Hun (N. Y.), 481. So much diversity exists on this point in the statutes and decisions of the several States, that the local rule must be consulted to determine the proper party. '" Upon a petition for the appoint- ment of a committee, and the ac- companying proofs, if sufficient, the court may either order a commission or a trial by jury. Code Civ. Pro., § 2327. 178 Irregularities in the proceeding to appoint a committee may not be raised collaterally; if the appointment is made by a court of general juris- diction, its correctness will be pre- sumed. Trust Co. of Am. v. State Dep. Co., 187 N. Y. 178. '" The court may appoint a com- mittee of the person, or a committee of the property, or of a portion of the property, of an incompetent person; and the committee of the person and property may be the same or differ- ent individuals. Code Civ. Pro., § 2322. "' A committee cannot enter upon his duties until he has given security- . Code Civ. Pro., §2337; Thayer i. Erie Co. Sav. Bank, 160 App. Div, 300, 145 N. Y. Supp. 808. Capacity to Sue or be Sued, etc. 89 88. Against the Committee of an Incompetent."' [Name of court, etc.] A. B. against Y. Z., as Committee of M. N., an ) Incompetent person [and saidi M. N.l.i^" [After vsual commencement and statement of cause of action against the incompetent, add:] II. That afterwards [or, on the day of , 19 , at ], the said M. N. was duly adjudged by the Court to be an incompetent person.'*^ III. That the defendant was then and there duly ap- pointed by the said court a committee of the [person and] estate of the said incompetent, and duly quaUfied as such committee. IV. That by an order duly made by said court on the day of , 19 , plaintiff was duly granted leave to bring this action. ^'- '^' See a general discussion as to the tained against a committee of an liability of such a committee, and the incompetent person, leave to sue proper character of a creditor's ac- must be obtained from the court ap- tion, in Kent i). West, 33 App. Div. pointing the committee, and must be 112, 53 N. Y. Supp. 244. alleged. Grant v. Humbert, 114 App. '*• The incompetent person is a Div. 462, 99 N. Y. Supp. 44; Smith v. necessary party to an action brought Keteltas, 27 App. Div. 279, 50 N. Y. to recover for acts done by him per- Supp. 471; Matter of Delahunty, 28 sonally. Capen v. Delaney, 128 App. Abb. N. C. (N. Y.) 245, 44 N. Y. Div. 648, 113 N. Y. Supp. 50; 22 Cyc. State Rep. 886, 18 N. Y. Supp. 395; 1227. Matter of Wing, 2 Hun (N. Y.), 671. '"A complaint against a committee The committee is merely the agent is demurrable for insufficiency if it of the court. Kent v. West, 33 App. fails to allege or show by what court Div. 112, 53 N. Y. Supp. 244. or authority he was appointed. Hall If action was commenced against V. Taylor, 8 How. Pr. (N. Y.) 428. the incompetent before office found, But less particularity may be deemed on the subsequent appointment of a necessary in alleging the official ca- committee the court may enjoin pacity of the adverse party than in prosecution, or may grant leave for other cases, because it is a matter its continuance. Grant v. Humbertj peculiarly within his own knowledge. supra. See, also, note 171, supra. •'2 Before an action can be main- If the fact that leave has not been 90 Abbott's Forms of Pleading Wherefore, the plaintiff demands judgment for dollars, with interest from , to be paid out of the estate of the said M. N. in the hands of the defendant. 89. Appointment of Committee of Life Convict. ^^' [Under N. Y. Prison Law, § 370.] That on the day of , 19 , in the [Su- preme] Court of this State in and for the covinty of , one [convict] was convicted and sentenced to imprisonment in this State for life. That thereafter, and on or about the day of , 19 , plaintiff was, by an order duly made and granted by the Supreme Court for the county of , wherein said [convict] resided at the time of his conviction, duly appointed a committee of the estate of such [convict], and thereupon duly quaUfied as such and has been and still is acting as such committee. XII. MARRIED WOMEN i** 90. Marriage and Separate Estate of Plaintiff. I. [State cause of action.] obtained is not raised by defendant be in the same form as one by or until the trial, leave may be granted against any other individual. Code nunc pro tunc. Dunham v. Fitch, 48 Civ. Pro., § 450. Similar statutory App. Div. 321, 62 N. Y. Supp. 905. provisions exist in Arkansas (Mans. 1" The appointment may not be Dig., § 4951), Colorado (Code Civ. collaterally attacked for irregularity. Pro., § 6), Indiana (Rev. St., § 5131), Trust Co. of Am. v. State Dept. Co., Iowa (Code Proc, § 2562), Kansas 187 N. Y. 178. (Gen. St., § 4106), Minnesota (Gen. '"Under the present New York St., chap. 66, §29), Missouri (Rev. statute (Domestic Relations Law, St., § 1996), Ohio (Rev. St., § 4996), § 50) a married woman may contract Wisconsin (Rev. St., § 2345). as though unmarried, whether her Laws of one State relating to mar-, contract relates to her separate estate ried women are not appUed in an- or not. She also sues or is sued as if other state in which th6 policy is a feme sole, and, therefore, the allega- different; the principles of comity do tions in the above and the following not apply. See Mandel Bros. v. forms are no longer appropriate, and Simpson, 67 Misc. 386, 122 N. Y. a complaint by or against a married Supp. 397, and cases cited, woman on her contract should now The forms, however, have been Capacity to Sue or be Sued, etc. 91 II. That on the day of , 19 ,'-^'^ the plaintiff intermarried with one J. S., whose wife she now is. III. That the consideration of the said note [or, of the said transfer, or, indorsement of the said note to the plaintiff] was the payment by this plaintiff to the, maker [or, indorser, or, assignor] thereof, of the sum of , which said sum was [or, the principal and interest of a certain sum which was], at and before the time of her marriage, owned by her [or, which was acquired by her, by her trade or services], and thereafter was her sole and separate property, ^^^ and * so retained to aid pleaders in those States where the common-law dis- abilities remain, or whose statutes are substantially similar to those in New York prior to the above enact- ment. Under the prior New York statutes it was held that a married woman could not bind herself by contract unless (1) the obligation was created by her in or about carrying on her trade or business; or (2), the contract related to or was made for the benefit of her separate estate; or (3), the intention to charge her separate estate was expressed in the instrument or contract by which the liability was created; or (4), the debt was created for property purchased by her. Saratoga County Bk. v. Pruyn, 90 N. Y. 250. But even where the power of a married woman to contract' was go limited, it was held that she could sue or be sued in the usual manner with- out disclosing the fact that she was married, and in such a case the plead- ing need not allege any fact to show that the contract was one which may be entered into by a married woman. Frecking v. Rolland, 53 N. Y. 422; Hier v. Staples, 51 Id. 136; Smith v. Dunning, 61 id. 249; Brice v. Miller, 35 S. C. 537, 15 8. E, Rep. 272. But if the pleading showed that she was a married woman, such facts must be alleged. Broome v. Taylor, 76 N. Y. 564; Baker v. Garris (N. C, 1891), 13 S. E. Rep. 2; and see Bolman v. Overall, 80 Ala. 451; s. c, further decision, 86 id. 164. If, however, by statute a married woman is given a general power to contract followed by special exceptions, facts to show that the contract sued on is without the exceptions need not be alleged, even though the pleading discloses that the contract was made with a married woman. Bennett v. Mat- tingly, 110 Ind. 197, 10 N. E. Rep. 299. I 1** In many cases the date of mar- riage may be necessary to bring the case within the statute. ™ A general averment that the property is the separate property of the married woman is not bad on de- murrer. If the defendant has a right to be informed of the facts constitut- ing the goods her separate property, his remedy is by motion. Spies v. Accessory Transit Co., 5 Duer (N. Y.), 662; and see Lippman v. Peters- burgh, 10 Abb. Pr. (N. Y.) 254; Chandler v. Speincer (Ind., 1887), 10 N. E. Rep. 577. An allegation that a married woman is seized with another of an estate in land in fee simple, sufficiently sets forth that she has a 92 Abbott's Forms of Pleading continued until the time of such payment; and said note thereupon became and ever since has been her sole and separate property. [Or, III. That the consideration of the said note {or, of the said transfer, or, indorsement, of said note to the plaintiff) was the payment by plaintiff to the maker {or, indorser, or, assignor) of the sum of dollars, which said sum be- came {or, was the principal and interest of a certain sum which became) after her said marriage her sole and separate property by inheritance {or, gift, grant, devise, or bequest) from a person other than her said husband, to wit, one M. N., and {continue as above from the *).] [Or, III. That the consideration of {etc., as above), which said sum was the proceeds of certain property, which was at and before {etc., as above, or, which said sum was the proceeds of certain property which became after, etc., as above).] 91. The Same, in an Action Other than upon a Contract for the Payment of Money only.**^ I. and II. [State marriage, as in preceding form.] III. That the property hereinbefore mentioned was, at and before the time of her said marriage, owned by plaintiff, and ever since has been her sole and separate property. [Or, III. That the property hereinbefore mentioned, was after plaintiff's said marriage, bought by her with the pro- ceeds of certain property, which was at and before the time of her said marriage owned by her; and ever since the same has been her sole and separate property. Or, III. That the property hereinbefore mentioned be- came after her said marriage, her sole and separate property, separate estate. Ramash v. Scheuer "was yielded to her, and that it was (Wis., 1892), 51 N. W. Rep. 330. But beneficial to her separate estate," compare Potter v. Sheets (Ind. 1892), was insufficient on demurrer; since 32 N. E. Rep. 811, holding that a re- it failed to show the nature of the ply to an answer setting up coverture, consideration, and wherein the estate in an action on a promissory note, was benefited, which merely alleged that the note ™ See notes to previous form. Capacity to Sue or be Sued, etc. 93 by inheritance — or, gift, grant, devise, or, bequest — from one M. N., and that ever since the same has been her sole and separate property. Or, III. That the property hereinbefore mentioned was after her said marriage acquired by her, by her trade or services entered into on her own and separate account, and that ever since the same has been her sole and separate property.] 92. Action in Equity Against a Married Woman, on her Contract, to Charge her Separate Estate.'^* I. That the defendant is the wife of one M. N. II. That at the time of making the [note] hereinafter men- tioned, the defendant was, and still is, seized in fee [or, other- wise] in her own separate right of a farm in the town of , and county of , containing about acres of land, of the value of dollars. III. [State cause of action; and either show that the trans- action was in a separate business carried on by her, or that the consideration was a direct benefit to the defendant's separate estate, or else add:] TV. That in consideration thereof, the defendant agreed to charge her said estate with the amount of said [note]. Wherefore the plaintiff demands judgment: 1. That said note be adjudged a charge on said estate of defendant. 2. That the said estate be applied to the payment of the sum of dollars, with interest from the day of ,19 . 3. That a receiver be appointed [etc.]. '** The usefulness of this form is common-law remedies, would or- questionable. It is doubtful if such dinarily be ousted by the passage of an action will lie in equity except enabling acts, and the creating of where the common-law disability re- rights of action at law. On these mains unimpaired by statute or de- points see Levi v. Earl, 30 Ohio St. cision. The jurisdiction of equity, 147; Ankeney v. Hannon, 147 U. S. resting upon the inadequacy of 118. 94 Abbott's Forms of Pleading 93. Action at Law Against a Married "Woman upon her Contract Made for the Benefit of her Separate Estate, or Expressly Charging the Same.'^^ [Sustained by Gfroehner v. McCarty, 2 Abb. N. C. (N. Y.) 76; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613.] »» [TiUe and commencement.] I. [Allege making of contract.] II. That at the time of making the said [note], the de- fendant, J. S., was a married woman and the wife of the defendant, T. S., and seized and possessed of a separate estate; ^'^ and at the time of the making of said [note], and for the purpose of giving credit thereto, the defendant, J. S., indorsed said [note], and in and by said indorsement she intended to and did charge her separate estate with the payment thereof, and that the consideration of said [note] went to the benefit of her said separate estate. "- [Conclude with the usual allegations as in Form 90, and add demand fffr judgment, as if defendant was' a feme sole.] '*' An action may be brought '"^ It must be directly alleged either against a woman upon her contract in that the consideration of the promise the ordinary way, without disclosing was for the benefit of the separate es- in the complaint the fact that she tate, or that she intended to charge Was married, and thereby leave it to such estate. Thus an averment that her to set up coverture in her answer. the consideration was a pair of horses, See cases cited in notes to Form 90, and that she kept a Livery stable, is in- supra. sufficient. Palin v. Lent, 5 Bosw. "" But not now of use in New York (N. Y.) 713; and see Francis v. Ross, State. See notes to Form 90. 17 How. Pr: (N. Y.) 561. In some '" A general allegation that do- States, however, a mairied woman's fendant has a separate estate will intent to charge her separate estate suffice; since in such actions, judg- is presumed from the mere execution ment and execution are in the or- of a contract by her. Williams v. dinary form, and cannot be charged Umston, 35 Ohio St. 296; Stillwell v. on or directed against any particular Adams, 29 Ark. 346. Otherwise in property owned by her. Com Ex- New York under common law. Yale change Ins. Co. v. Babcock, 42 N. Y. v. Dederer, 18 N. Y. 265; further de- 613; Brainard v. White, 7 N. Y. Civ. cision 22 id. 450; and see Ankeney i'. Pro. R. 43. Hannon, 147 U. S. 118. Capacity to Sue or be Sued, etc. 95 XIII. PARTNERS '»» 94. By or Against Partners. ^^* [Sustained in Anable v. Conklin, 25 N. Y. 470; Pfister v. Wade, 69 Cal. 133.] [Name of court, etc.\ A. B. and C. D., plaintiffs, against W. X. and Y. Z., defendants. ^^M The plaintiffs, complaining of defendants, allege: I. That at all the times hereinafter mentioned [or, from 1™ An allegation of a contract made with defendant alone is not sustained by proof of a contract made with a partnership of which he is a mem- ber. Wildrick v. Heyshem, 96 App. Div. 515, 89 N. Y. Supp. 78; Rich v. Wright, 57 App. Div. 236, 68 N. Y. Supp. 122. But if defendant in his pleading admits the single liability, and does not plead a non-joinder, he cannot raise the objection though plaintiff's proof shows a partnership obligation. Amsterdam, etc., Co. v. Rayher, 43 App. Div. 602, 60 N. Y. Supp. 330. See notes to form of answer plead- ing non-joinder. "* Partnership may be proved under an allegation of joint right or liability. Vallett v. Parker, 6 Wend. (N. Y.) 615; Loper v. Welch, 3 Duer (N. Y.), 644; Clark v. Wick (Ore., 1894), 36 Pac. Rep. 165; Stix v. Matthews, 63 Mo. 371; Jemison v. Dearing, 41 Ala. 283. So, also, an allegation of partnership, and the making of a contract by or tO' the firm, lets in evidence of a joint con- tract by or to the same persons. Mil- lard V. Thorn, 56 N. Y. 402; Hunter v. Morton, 57 Cal. 365; Geddes v. Adams, 77 Mass. 384. But if plain- tiff sues for an accounting, alleging a general partnership, no recovery may be had on proof of a joint venture, in which the parties were not partners. Brice v. Jones, 106 App. Div. 547, 94 N. Y. Supp. 896. "' An action must be brought by or against the members of a partnership in their individual names. In absence of statutory sanction, they cannot sue or be sued in the firm name. Moore v. Burns, 60 Ala. 269; Seely v. Schenck,, 2 N. J. L. 75; Weisz v. Davey, 28 Neb. 566, 44 N. W. Rep. 470. Such stat- utory sanction exists in Ohio. Ohio Rev. Stat., § 5011. The mere partnership relation will not enable one member to maintain an action in behalf of the firm, as trustee of an express trust. Brainard V. Bertram, 5 Abb. N. C. (N. Y.) 102. But otherwise, where the action is upon a contract for the firm's ben- efit in the name of the partner bring- ing the action. Beakes v. Da Cunha, 126 N. Y. 293, 27 N. E. Rep. 251; Mynderse v. Snook, 53 Barb. (N. Y.) 234. As to the necessity of making all the members of the partnership parties, see Seligman v. Friedlander, 199 N. Y. 373; Third Nat. Bank v. 96 Abbott's Forms of Pleading , 19 , to ,19 ,] '*" the plaintiffs [or, de- fendants] '" were [and now are] co-partners^** doing business in the city of , under the firm name and style of A. B. & Co., as [druggists]."" 95. By or Against a Surviving Partner.^"" [Sustained in Smith v. Ferguson, 33 App. Div. 561, 53 Graham, 174 App. Div. 503, 161 N. Y. Supp. 159; Brookmeyer v. Rosey, 34 Neb. 227; Choteau v. Riatt, 20 Ohio, 132; Frost v. Schackleford, 57 Ga. 260; Secor v. Keller, 4 Duer (N. Y.), 416; Keesey v. Old (Tex., 1893), 21 S. W. Rep. 693; Bently v. Smith, 3 Gaines (N. Y.), 170; Hyde v. Van Valkenburgh, 1 Daly (N. Y.), 416. "" The dissolution of a partnership does not prevent the former members from maintaining an action for a debt to the firm. Hyde v. Moxie Nerve Food Co., 160 Mass. 559, 36 N. E. Rep. 585. '" The fact that plaintiff has in- correctly joined defendants as co- partners is not ground for dismissal of his complaint as to those who are shown to be partners. The personnel of the partnership is not put in issue by a general denial. See Alaska Banking, etc., Co. v. Van Wyck, 146 App. Div. 5, 130 N. Y. Supp. 563. ™ Partnership is a pleadable fact. McKee v. Jessup, 62 App. Div. 143, 70 N. Y. Supp. 796; Parry v. Parry, 92 Misc. 490, 155 N. Y. Supp. 1072; Hancock v. Hintrager, 60 la. 374; Alpers V. Schamel, 75 Gal. 590, 17 Pac- Rep. 708; Sharp v. Hutchinson, 100 N. Y. 533; and may be alleged as in the above form, where the cause of 'alction arises out of a transaction by or with a firm. If the instrument sued on is pleaded as designating either of the parties thereto by an apparent partnership name, such allegation of partnership may be necessary to connect plaintiffs or defendants therewith. Bischoif v. Blease, 20 S. G. 460; Dessampt v. Elling, 31 Minn. 287; Fryer v. Breeze, 16 Col. 323. Suits in relation to the business of a limited partnership may be brought and conducted by and against the general partners, in the same man- ner as if there were no special part- ners. N. Y. Partnership Law, § 38; Gal. Giv. Code, §2492; Ohio Rev. Stat., § 3161. A special partner is not a proper party. Fuhrmaim v. Von Pustan, 126 App. Div. 629, 111 N. Y. Supp. 34. Under a complaint alleging a cause of action against defendants as gen- eral co-partners, plaintiff is entitled to give evidence of an ineffective at- tempt by defendants to form a lim- ited partnership, and the facta to charge the special partner as a general partner. Sharp v. Hutchinson, 100 N. Y. 533; Continental Nat. Bank, etc., V. Strauss, 137 id. 148. '" It is unnecessary to allege in what business the partnership was engaged; it is sufficient, if it appear that plaintiffs or defendants acted as partners in the particular transac- tion to which the cause of action re- lates. National Ins. Co. v. Bowman, 60 Mo. 252. ^ A surviving partner, in his in- Capacity to Sue or be Sued, etc. 97 N. Y. Supp. 1097; Daley v. Ericsson, 46 N. Y. 786; Reese v. Kinkard, 17 Nev. 477.] [Title and commencement.] I. That at the times hereinafter mentioned [or, on or be- fore the day of , 19 ] plaintiff [or, defend- ant] and one C. D., were co-partners doing business at under the firm name and style of A. B. & Co., and that said partnership continued up to the death of said C. D., as hereinafter set forth.^"^ II. [Set forth cause of action accruing to or against the partnership.] III. That thereafter and before this action [or, on or about the day of , 19 ] said C. D. died, leaving plaintiff [or, defendant], the sole surviving partner of the said firm of A. B. & Co. dividual capacity,' has the legal title to a chose in action belonging to the firm, and he has the sole right to en- force the same by an action in his own name, as such survivor without joining the representative of the deceased partner. Secor v. Trades- men's Nat. Bank, 92 App. Div. 294, 87 N. Y. Supp. 181; Bernard v. Wil- cox, 2 Johns. Cas. (N. Y.) 375; Beach V. Hayward, 10 Ohio, 455; Bassett v. Miller, 39 Mich. 133; Nehrboss v. Bliss, 88 N. Y. 600; Quillen v. Arnold, 12 Nev. 235, 248. So, in an action against a surviving partner, a judgment against him individually for a partnership in- debtedness may be satisfied out of the property which he obtained by virtue of survivorship. Smith v. Ferguson, 33 App. Div. 561, 53 N. Y. Supp. 1097; Eoe v. Hume, 72 Hun, 1, 25 N. Y. Supp. 576. It has been held not proper, therefore, to state either in the caption or the body of the com- plaint that he sues or is sued as sur- viving partner. Matthews v. Steitz, 5 N. Y. Civ. Pro. R. 235; Farwell ii. Davis, 66 Barb. (N. Y.) 72. But see to the contrary Reeder v. Sayre, 70 N. Y. 180, 190; Berolzheimer v. Strauss, 51 N. Y. Super. Ct. 96; 7 N. Y. Civ. Pro. R. 275; Reese v. Kinkhead, 17 Nev. 447 {dicta to the effect that, though not necessary, it is the better practice to state the surviving partner's character) ; Brown V. Allen, 35 la. 306. In such cases, however, it would seem a better rule that the partner- ship and plaintiff's succession as sur- viving partner should be alleged, so that defendant may know whom he is called to answer. Vandenhewvel c. Storrs, 3 Conn. 203; Holmes v. De Camp, 1 Johns. (N. Y.) 34. ™' An action at law by the rep- resentative of the deceased partner against the survivor, to recover a pei^ centage of the profits, will not lie until an accounting has been had. Lefevre v. Silo, 112 App. Div. 464, 98 N. Y. Supp. 321. 98 Abbott's Forms of Pleading 96. Against Personal Representative of Deceased Part- ner.202 I, II and III. [As in Form 95.] IV. [Allege defendant's appointment as executor or adminis- trator, as in Form 61 or 6j^.] V. That [the defendants] ^^ — the surviving partners— qx& wholly insolvent. [Or, where such is the fact:] That plaintiff has heretofore duly recovered judgment in the Court against said — surviving partners — upon the cause of action aforesaid, and has duly issued execution thereon but that said execution has been returned wholly unsatisfied. 97. Allegation of Successor Firm, Acquiring Assets of Prior Co-partnership. [Sustained in McKee v. Jessup, 62 App, Div. 143, 70 N. Y. Supp. 796.] That the said [successor firm] are owners, successors to and assignees of the claims, business and assets of the said [prior firm], and as such successors and assignees are the owners of and entitled to collect all claims and demands, of said [prior firm]. 98. Allegation that Defendant Partner has Succeeded to Assets and Assumed the Debts.^"^ [After alleging former partnership and cause of action against it.] That thereafter and on or about the day of , 19 , [or, prior to this action] the defendant pur- chased of said [retired partner] all his interest in said co-part- ^'^ It must be shown that the insolvent survivors co-defendants, remedies against the surviving mem- See Hostopp v. Huber, swpra. bers have been exhausted, or that ™< The effect is to make that they are insolvent. Hostopp w. Huber, partner the primary debtor, and the 160 N. Y. 524; Harbeck v. Pupin, 123 retired partner the surety. See id. 115; Potts v. Dounce, 173 id. 335; Phillips w.Schlang, 139 App. Div. 930, Norment v. Wittmann, 157 App. Div. 124 N. Y. Supp. 40; U. S. Nat. Bank 708, 142 N. Y. Supp. 717. v. Underwood, 2 App. Div. 342, 37 ™^ It may be safer to make the N. Y. Supp. 838. Capacity to Sue or be Sued, etc. 99 nership, and in consideration thereof assumed and agreed to pay all the co-partnership debts. XIV. PRINCIPAL AND AGENT 99. By or Against Undisclosed Principal. ^"^ That at , and on or about the day of , 19 , plaintiff [or, defendant], through M. N. his duly authorized agent, ^"^ and the defendant [or, plaintiff] entered into an agreement [etc.]. 100. By Agent, as Trustee of an Express Trust. ^'"' [Under N. Y. Code Civ. Pro., § 449.] That at and on or about the day of ™* An undisclosed principal may sue or be sued upon a contract made by his agent in the latter's name. Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 136 App. Div. 22, 120 N. Y. Supp. 163; Henderson, etc., Co. V. McNally, 48 App. Div. 134, 62 N. Y. Supp. 582, aff'd on opinion below, 168 N. Y. 646; Gordon Malting Co. v. Bartels Brewing Co.; 208 N. Y. 528; Navarre Hotel, etc., Co. V. Am. Appraisal Co., 156 App. Div. 795. Exceptions to this rule exist when the contract is under seal (Schffifer v. Henkel, 75 N. Y. 378), as to negotiable instruments (Ranger V. Thahnann, 84 App. Div. 341, 82 N. Y. Supp. 846, aff'd on opinion below, 178 N. Y. 574), or when the element of personal trust and con- fidence is involved (Moore v. Vul- canite Portland Cement Co., 121 App. Div. 667, 106 N. Y. Supp. 421.) Where the agent makes the agree- ment in his own name, even though he is acting for another, he is per- sonally bound thereby, and if the other party elects to hold him liable, parol evidence is i^ot admissible to release him from the obligation thus voluntarily assumed. Gordon Malt- ing Co. V. Bartels Brewing Co., 203 N. Y. 628. ^^ This reference to the agent is held unnecessary in Kelly Asphalt Block Co. V. Barber Asphalt Paving Co., supra. It is better to insert it, however, to avoid a possible claim of surprise at the trial. ^ Under Code authority a person, with whom or in whose name a con- tract is made for the benefit of an- other, may sue on the contract as the trustee of an express trust and with- out joining with him the person for whose benefit the action is prose- cuted. Code Civ. Pro., § 449; Con- siderant v. Brisbane, 22 N. Y. 389; Albany, etc., Co. v. Lundberg, 121 U. S. 451. If the plaintiff pleads a copy of the contract, from the terms of which it appears that he is acting as agent for the benefit of another, it is not neces- sary for him to specifically allege that he so sues. Schipper v. Milton, 51 App. Div. 522, 64 N. Y. Supp. 935, aff'd 169 N. Y. 583. See, also, Mid- dleton V. Wohlgemuth, 141 App. Div. 678, 126 N. Y. Supp. 734, and cases in next note. 100 Abbott's Forms of Pleading , 19 , plaintiff, as agent and for the benefit of [prindpal],^"^ and the defendant entered- into an agreement [etc.]. 101. Against Agents on Their Personal Assumption of Liability. [Sustained in Jones v. Gould, 200 N. Y. 18.] [After allegations of the agreement under which it appears defendants acted as agents for known principals:] That the defendants promised and agreed ^"^ [etc.]. XV. PUBLIC OFFICERS 210 102. By or Against a Single Officer in his Official Capacity. [Sustained in Kelly v. Breusing, 33 Barb. (N. Y.) 123, aff'g 32 id. 601.] A. B., as Overseer of the Poor of the Town of , County of , and State of New York [or, if other officer, state proper title], plaintiff, against C. D. [if against a public officer, add title of office as above], de- fendant. The plaintiff, complaining of defendant, alleges: ™ Plaintiff shoul.l allege facts 160 App. Div. 835, 146 N. Y. Supp. from which it appeal's he sues as such 53. trustee of an express trust under the ™ This sufficiently alleges the Code authority. See Schipper v. agent's pledge of personal credit and Milton, supra; Natter v. Blanchard personal assumption of the obhga- Co., 153 App. Div. 814, 818, 138 tion of the agreement. Jones v. N. Y. Supp. 969. Gould, supra. Where a contract was made with Where an agent makes the agree- plaintiff for his benefit the fact that ment in his own name, even though another person has subsequently he is acting for another, he is per- become interested therein need not sonally bound, at the election of the be alleged in order that plaintiff may other party. Gordon Malting Co. v. sue as trustee of an express trust. Bartels Brewing Co., 206 N. Y. 528. Weber V. Columbia Amusement Co., ^"' An action by or against a public Capacity to Sue or be Sued, etct I. That this plaintiff [or, defendant] is the overseer of the poor of the town of , county of , and State of New York [or, otherwise, as above], duly elected, qualified and acting as such.-" officer, as such, should generally bo brought in his individual name, with the title of office added, and not in the title of the office only. N. Y. Code Civ. Pro., § 1929; Paige v. Fazackerly, 36 Barb. (N. Y.) 392; Horton v. Par- sons, 37 Hun (N. Y.), 42; Agent of Mount Pleasant Prison v. Rikerman, 1 Denio (N. Y.), 279; Board of Trus- tees of the Fire Department, etc., v. Acker, 26 How. Pr. (N. Y.), 263; Wilde V. Supervisors of Columbia, 9 id. 315; Galway v. Stimson, 4 Hill (N. Y.), 136; Commissioners of High- ways of Cortlandtville v. Peck, 5 id. 215. But a complaint is not demur- rable because of the omission to state the official designation in the cap- tion, if it sufficiently appears in the body thereof that plaintiff or de- fendant sues or is sued in his official capacity. Sullivan v. Husson, 60 How. Pr. (N. Y.) 475; and see Wat- rous V. Shear, 25 N. Y. Weekly Dig. ,164. As to what actions in the State of New York may be maintained by or against certain county, town and municipal officers, see N. Y. Code Civ. Pro., §§ 1926-1928. "1 An allegation of plaintiff's or de- fendant's official capacity is proper and might be required on motion, if omitted, though the complaint would be good upon trial or demurrer with- out it, if the fact that he sued as such officer otherwise appears. Gould o. Glass, 19 Barb. (N. Y.) 185; Smith o. Levinus, 8 N. Y. 447; Buyce v. Buyce, 48 Hun (N. Y.), 433, 16 N. Y. State Rep. 307; Griggs v. Griggs, 66 Barb. (N. Y.) 287; aff'd in 56 N. Y. 504; Fowler v. Westervelt, 17 Abb. Pr. (N. Y.) 59, 40 Barb. (N. Y.) 374. But recovery cannot be had by or against plaintiff or defendant in his official capacity, if it is neither al- leged that he is a public officer, nor in any way appears that he sues or is sued as such. Boots v. Washburn, 79 N. Y. 207; Albro v. Rood, 24 Hun (N. Y.), 72; Shuler v. Myers, 5 Lans. (N. Y.) 170; Bonesteel ;;. Garling- house, 60 Barb. (N. Y.) 338. Where statute provides that a municipal corporation may maintain an action relative to the duties of an officer thereof, such statute will be construed as depriving the officer of the power to bring the action in his own name. Hagadom v. Raux, 72 N. Y. 583. An objection growing out of an omission to join any officer who ought to be joined with the others, is waived unless taken by answer. N. Y. Code Civ. Pro., § 1929. 102 Abbott's Forms of Pleading 103. By the Attorney-General on the Relation of a Person Having an Interest in the Question.^ '- [N ame of the court, etc.] The People of the State of New^ York on the Relation of A. B. [and the said A. B. Individ- ually], ^'^ plaintiffs, against Y. Z., defendant. The People of the State of New York, by M. N., Attorney- General, complaining of the defendant, allege: I. That this action is brought upon the relation of the above-named A. B. XVI. RECEIVERS ^^ 104. By Receiver Appointed Pending Litigation. [Title and commencement.] ^'^ Where an action is brought by the Attorney-General on the relation or information of a person having an interest in the question, the com- plaint must allege and the title of the action must show that the action is brought upon the relation of that person. N. Y. Code Civ. Pro., § 1986. See Atty. Gen. ex rel., etc., v. Hunt, 73 N. C. 24. 2" Under the former Code (§ 434) it was necessary to join the relator as a party plaintiff. People ex rel. Petry V. De Bevoise, 27 Hun (N. Y.), 596; People ex rel. Crane v. Ryder, 12 N. Y. 433; People ex rel. Hawes v. Walker, 23 Barb. (N. Y.) 304, 2 Abb. Pr. (N. Y.) 421. Under the Code of Civil Procedure (§ 1986), though not a necessary party, he may be prop- erly joined as a plaintiff upon the ground that he has an interest in the subject-matter of the action. People ex rel. Petry v. De Bevoise, 27 Hun (N. Y.), 596. ■■"'' The forms below will also suffice in actions against receivers. Leave to sue a receiver should ordinarily be obtained, but failure so to do is not jurisdictional, and therefore the al- legation of leave obtained is not essential to the sufficiency of the complaint. See Pruyn v. McCreary, 105 App. Div. 302, 93 N. Y. Supp. 995, aff'd 182 N. Y. 568; De Chiara v. Sutherland, 62 Misc. 555, 115 N. Y. Supp. 622. In an action against a receiver appointed by a federal court, failure to allege leave to sue was held a demurrable defect in Clukies v. Bank of New York, 74 App. Div. 38, 76 N. Y. Supp. 826. But institution of an action against a receiver without leave of court first obtained is ordinarily punishable as a contempt. See Kroner v. Reilly, 49 App. Div. 41, 63 N. Y. Supp. 527; Greene v. Odell, 43 App. Div. 608, 60 N. Y. Supp. 346. Capacity to Sue or be Sued, etc. 103 I. That on the day of , 19 , at , in an action for dissolution of partnership [or, otherwise, ac- cording to fact] then pending in the Court, wherein M. N. was plaintiff and O. P. was defendant, upon an ap- plication made by said M. N., and by an order duly made by said court, this plaintiff was duly appointed receiver of the property rights and assets of said partnership [or, other- wise, according to order of appointment], inelnding the prop- erty hereinafter described. II. [Allege the giving of bond and qualification after the manner of Form 107.] III. That on the day of , 19 , this plaintiff was duly authorized by an order of said Court to bring this action. ^^•'' 105. By Receiver of a Corporation Appointed in a Judg- ment Creditor's Action for the Sequestration of Cor- porate Property."^ [Title of court and cause, and commencement and allegation of incorporation as in previous forms.] II. That on the day of , 19 , plaintiff was duly appointed by this court temporary receiver of all the property and effects of the said Company in an 216 Ordinarily a receiver appointed him to bring the action, if he is pending an action is merely a com- asserting powers beyond those of a mon-law receiver and has no author- common-law receiver his complaint ity except what is specially conferred is demurrable. See Rinehart «. upon him by the court in the order. Hasco Building Co., 153 App. Div. He cannot sue or be sued without 153, 138 N. Y. Supp. 258. leave of court. 30 Barb. (N. Y.) 483; But the statutes should be con- High on Rec. 167, 104 U. S. 126. suited to safely determine what Where, therefore, the allegations of a powers a receiver pending an action complaint show plaintiff to be such a now has merely by virtue of his ap- receiver, it is demurrable if it fail to pointment as such. For powers of a allege that he was authorized by an temporary receiver of a corporation order of the court to bring the action, in New York, see Gen. Corp. Law, Buckley v. Harrison, 10 Misc. 683, §§ 104-106. 31 N. Y. Supp. 999; Davis v. Ladoga As to statutory receivers and in- Creamery Co., 128 Ind. 222. Even struoting them, see note in 19 Abb. N. though a receiver alleges that he was C. (N. Y.) 359. authorized by the court appointing ^^' N. Y. Gen. Corp. Law, § 100. 104 Abbott's Forms of Pleading action brought by one G. against said company, upon a final judgment previously recovered by him against said com- pany, under and by virtue of which an execution against said company had been duly issued to the sheriff of the county of , and by him returned wholly unsatisfied, and which action was brought upon said judgment, after the return wholly unsatisfied of said execution, to sequestrate the property and effects of said Company, and for the appointment of a receiver thereof, to the end that its property and effects might be equitably distributed among its creditors. III. That on or about the day of , 19 , plaintiff duly qualified as such temporary receiver, and duly executed and filed with the clerk of this court the bond re- quired of him as such temporary receiver. IV. That such proceedings were afterwards had in such action that on the day of , 19 , a final judgment was duly made and entered therein, sequestrating the property of said Company, and appointing plaintiff permanent receiver of its property and effects, with the usual power of receivers in such cases, and directing the distribution of its said property and effects among the creditors thereof. That plaintiff thereupon duly" qualified as such permanent receiver of said company, and entered upon the duties of his office as such permanent receiver, and has since discharged and now is discharging the duties thereof, and has in all respects duly complied with all orders of- the court respecting the filing of additional security as such permanent receiver, and otherwise. V. [Leave to sue; see Form lOJ)..] VI. [Cause of action.] ^'' '-" A corporation receiver repre- corporation, upon which it might aents the corporation for the purpose have maintained actions. See Bowers of enforcing all the legal rights and u. Male, 186 N. Y. 28. redressing all the legal wrongs of the Capacity to Sue or be Sued, etc. 105 106. By Temporary Receiver of a Corporation Appointed Pending Proceedings for its Voluntary Dissolution. ^'^ [Under N. Y. Gen. Corp. Law, §§ 176 e< seq.] [Title, commencement, and incorporation.] II. That on the day of , 19 , at , upon application duly made in a proceeding instituted by its directors for the voluntary dissolution of the said Company, and by an order of the Supreme Court in and for the county of , duly made and entered on said day, plaintiff was duly appointed temporary receiver of the prop- erty of the said company. III, IV, V and VI. [As in previous form.] "^ 107. By Receiver in Supplementary Proceedings."" [Title of court.] A. B., as Receiver of the Prop- erty of C. D., plaintiff, 221 against Y. Z., defendant. The plaintiff, as receiver of the property of C. D., alleges: *'* A form for a pemianent receiver ceiver upon the judgment debtor's can be adapted without difficulty, property rights, and the right to at- from this and the preceding foi"m. tack fraudulent transfers, is discussed ^" Such receiver has statutory au- in Ward v. Petrie, 157 N. Y. 301. thority to sue, and previous authority The form finds further sanction in: so to do will only affect his liability for Rockwell v. Merwin, 45 N. Y. 166; costs. Gen. Corp. Law, §§ 104, 106. Payne v. Becker, 87 id. 153; Manley ^™ This form is adapted for use v. Rassiga, 13 Hun (N. Y.), 288; under the New York Code, and is Cheney v. Fisk, 22 How. Pr. (N. Y.) sustained by Campbell v. Foster, 35 236; and see Scroggs v. Palmer, 66 N. Y. 361. As the receiver's title to Barb. (N. Y.) 505; CampbeE v. Fos- the debtor's property, under this ter, 35 N. Y. 361; Matter of Conner, proceeding, is purely statutory, care 47 N. Y. St. Rep.- 415, 19 N. Y. Supp. must be taken to adapt this form, 971; Crowell v. Church, 7 Abb. Pr. when used in another State, so as to (N. Y.) 205; Wright v. Nostraiid, 94 cover any differing provision. The N. Y. 31; Manderville v. Avery, 124 effect of the appointment of the re- id. 376. "'The judgment debtor is not a Fawcett v. City of N. Y., 112 .4pp. necessary party in an action at law to Div. 155, 98 N. Y. Supp. 286. •recover upon a claim accruing to him. ■> 106 Abbott's Forms of Pleading I. [State cause of action acauing to the judgment debtor.] ^^^ II. That on or about the day of , 19 , one 0. P. duly recovered judgment agamst said C. D., in the Court, for the sum of dollars; that said judgment was on the day of ; 19 , duly [entered and] docketed in the office of the clerk of the county of , where said judgment debtor then and at the times hereinafter mentioned resided; "' that an execution against the property of said judgment debtor was on the day of , 19 , duly issued to the sheriff of said county, ^^^ which execution was on or about the day of , 19 , returned by said sheriff wholly un- satisfied, and that said judgment is now wholly unpaid. III. That on or about the day of ,19 ,"5 upon the application of said 0. P., in proceedings supple- mentary to execution then pending upon said judgment, and by an order on that day duly made by Hon. , one of the justices of the Court, plaintiff was duly appointed receiver of the property of said C. D.; that said order was on the day of , 19 , duly filed with the clerk of said county of . An appointment by the federal compliance with the Code of Civil court under a judgment rendered by Procedure (§ 2468), and although that court in this State, gives the re- their omission may not render the ceiver title as provided by the State complaint bad on demurrer (Camp- statutes. Johnson v. Nevins, 87 bell v. Foster, 35 N. Y. 361), it is Misc. 430, 150 N. Y. Supp. 828. deemed safer to show such com- If the action is upon a contract pliance. Should the action be made with the plaintiff as receiver, brought to reach the debtor's realty it is not necessary for him to set forth lying in another county, allege, also, his appointment, but he may sue, the filing of a certified copy of such simply describing himself as receiver. order in the latter county. Section White «. Joy, 13 N. Y. 83. 2468; Dubois v. Cassidy, 75 N. Y. ^'^^ Assuming that the action seeks 298. to enforce a property right of the "^^ Within ten years after judgment judgment debtor. Should the action recovered. Importers & Tr. Nat. be in replevin, allege here the judg- Bank v. Quackenbush, 143 N. Y. 567. ment debtor's ownership, as of the ^^^ Within ten years after the re-i time of plaintiff's appointment, etc. turn of the execution. N, Y, Code 223 This allegation of residence and Civ. Pro., § 2435; Faweett u, City of the subsequent allegation as to the N. Y., 112 App. Div. 155, 98 N, Y, filing of the order of appomtment is in , Supp. 286. Capacity to Sue or be Sued, etc. 107 IV. That thereafter, and before the commencement of this action, plaintiff duly gave the bond required by said order; that said bond was approved by the said justice, and is, with such approval thereon, on file in the said Court, and was so filed prior to the conmiencement of this action, and that plaintiff has duly qualified as such receiver and is discharging the duties thereof. [V. That plaintiff was duly authorized to commence this action by an order of the Court duly made and en- tered on the day of , 19 .] "' 108. By Successor or Substituted Receiver. [Allege appointment and qualification of original receiver, as in preceding forms.] That thereafter and on or about the day of , 19 , said [original receiver] died [or, resigned — or, was re- moved by order of this court duly made on the day of , 19 ]; that thereafter and on the applica- tion of , in proceedings duly instituted therefor, plaintiff was duly appointed receiver in place and stead of said [original receiver] by an order duly granted by this court ^~" on the day of , 19 , and plaintiff thereupon duly qualified and assumed the duties of his office and is now acting as such successor [or, substituted] receiver. 109. Against Receiver in Bankruptcy."* [From Brooklyn Imp. Co. v. Lewis, 136 App. Div. 861, 122 N. Y. Supp. 111.] -^ Leave to sue is not a part of the successor although the originai re- right of action and need not be ceiver was appointed by the county averred, but it should be obtained to court. Smith v. Bamum, 59 App. protect the receiver from costs. Div. 293, 69 N. Y. Supp. 253. Court Rules, 77 and 78. '^ As to whether such a receiver 2" Where a receiver has become may sue on a claim owing to the vested by statute with the title to bankrupt, see Greenhall v. Hurwitz, property, and has commenced an 80 Misc. 186, 141 N. Y. Supp. 914, action under direction of the Supreme and caaes cited. Court, that court may appoint a 108 Abbott's Forms of Pleading That on the day of , 19 , in a proceeding tHen pending in the United States District Court for the [Eastern] District of [New York], entitled "In the Matter of the , Alleged Bankrupt," an order was duly made by such court whereby the defendant was appointed receiver of all the property of the said , with the usual powers and authority of a temporary receiver in bank- ruptcy; that on the same day he duly qualified as such re- ceiver, and duly filed his official bond, and entered into possession of all the property of the said , including the premises thereinbefore described and the leasehold in- terest of the said therein. 110. By Foreign Receiver of Foreign Corporation Seeking to Reduce to Possession the Assets of the Corpora- tion in this State. 2^' [Adapted from Shipman v. Treadwell, 200 N. Y. 472; Royal Trust Co. v. Harding, 155 App. Div. 104, 140 N. Y. Supp. 9.] I. That the [name] is a foreign corporation, organized and existing under the laws of the State of , for [the manu- facture and sale of electrical and mechanical devices and appliances, and for the purchase and sale of patents therefor.] II. That on or about the day of , 19 , the Court of [Chancery], in the said State of , in an action wherein were complainants, and the said corporation was defendant, duly made a decree, appointing the plaintiff herein, permanent receiver of the said corpora- '2' The title of a foreign receiver is with the poUcy of the State, or impair upheld upon the principle of comity. the rights of its own citizens. How- If the title is by virtue of a voluntary arth v. Angle, 162 N. Y. 179; Ship- conveyance or transfer, it is sustained man v. Treadwell, 200 id. 472; Stone as against all, including domestic v. Penn Yan, etc., Ry. Co., 197 id. creditors; if it depends on a foreign 279. statute or judgment, it is sustained No action will lie by a foreign re- against all except domestic creditors. ceiver against the corporation for the Every retnedy to gather in the assets sole purpose of securing the appoint- is afforded, unless it would interfere ment of an ancillary receiver, Mabon V. Ongley Electric Co., 156 N. Y. 196. Capacity to Sue or be Sued, etc. 109 tion; [state powers grante(j, under foreign appointment,'^^'^ as:] that under such appointment and by virtue of the laws of said State of , all the property, effects and choses of action, to which said corporation was or appeared to be entitled, came into plaintiff's control or under his custody as such receiver; with full power to demand, sue for, collect and receive, and take into his possession all the property, effects and choses in action of the defendant; that the plain- tiff has duly qualified and is acting as such receiver. [Allege defendant's possession of assets of or his liability to the corporation.] ^" 111. By Ancillary Receiver of Foreign Corporation. ^''^ [/ and II as in Form 110.] III. That on the day of , 19 , by an order duly granted by the Suprenae Court for the county of , plaintiff was duly appointed receiver of said cor- poration for this State; that said order duly conferred upon plaintiff the usual powers of receivers according to the laws of the State of New York and the practice of the Supreme Court [may also allege any special powers expressly conferred and showing plaintiff's authority in the premises.] XVII. STOCKHOLDERS 112. Allegation in Action in a State Court, Brought by a Stockholder, Suing in the Interest of the Corporation Because the Directors will not Sue or are Themselves Implicated. ^'^ [Adapted from Cont. Sec. Co. v. Belmont, 206 N. Y. 7.] 230 If the foreign statute vests the Actions will be entertained on be- receiver with the corporate assets, half of residents against foreign re- such statute should be pleaded, in ceivers. See Pruyn v. McCreary, 105 order that the courts of this State App. Div. 302, 93 N. Y. Supp. 995, may give recognition to such title. aff'd 182 N. Y. 568. See Howarth v. Angle, supra. ^^' Adapted from Goodrich v. San- ''' See for a very recent considera- derson, 35 App. Div. 546, 55 N. Y. tion of the standing of a foreign re- Supp. 881. ceiver to reach equitable assets of ^'' To enable a stockholder in a cor- the corporation, Trotter v. Lisman, poration to sustain in a court of equity 209 N. Y. 174. in his own name a suit founded on a 110 Abbott's Forms of Pleading That plaintiff is a stockholder in defendant the company,^'* and sues on behalf of himself and all other stock- holders of said defendant. ^^^ [Allege its incorporation, and the cause of action in favor of the defendant corporation, in the same manner as though the corporation were prosecuting it, and with the same detail of facts.] '^ right of action existing in the cor- poration itself, there must exist as a foundation for the suit "some action or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority conferred on them by their charter or other source of or- ganization, or such a fraudulent transaction completed or contem- plated by the acting managers in connection with some other party, or among themselves, or with other shareholders, as will result in serious injury to the corporation as to the interests of other shareholders, or where the board of directors or a majority of them are acting for their own interest in a manner, destructive of the corporation itself or of the rights of the other shareholders." Miller, J., in Hawes f. Oakland, 104 U. S. 450; cited and approved in LesUe v. Lorillard, 110 N. Y. 520. ^'* Plaintiff must be a stockholder at the time of the commencement of the action. Hanna v. Lyon, 179 N. Y. 107. And must so allege or show in his complaint. Clarkson v. Walpole Rubber Co., 156 App. Div. 869, 142 N. Y. Supp. 502. He may have become a stockholder, however, after the consummation of the im- proper transaction. Pollitz v. Gould, 202 N. Y. 11. If a foreign corporation, allege that plaintiff is also a resident of this State. See Howe v. N. Y., etc., R. Co., 142 App. Div. 451, 126 N. Y Supp. 1090. A pledgee of stock cannot sue in hostility to the act of the pledgor upon which the corporation has acted with third persons. Elyea v. Lehigh Salt Mining Co., 169 N. Y. 29. 235 A stockholder who has joined in the action may maintain it even though it appears that the original plaintiff was not entitled to com- mence it. Hanna v. Lyon, 179 N. V. 107. It is improper to make the other stockholders defendants. McCrea V. Robertson, 192 N. Y. 160. Another stockholder may not be joined as a defendant at his request. Hay v. Brookfield, 160 App. Div. 277, 145 N. Y. Supp. 543. 2" Kavanaugh v. Com. Tr. Co., 181 N. Y. 121; Waters v. Waters & Co., 201 id. 184; Cont. Sec. Co. v. Behnont, 206 id. 7. Even to the extent of showing that, if engaged in business in the State and a foreign corporation, it has obtained authority to sue. See Cummings i;. Brown, 122 App. Div. 505, 107 N. Y. Supp. 493 (dissenting opinion). A misjoinder results if a demand belonging to the stockholders in their own right is imited to this action in which the right exists in the cor- poration. Brock V. Poor, 216 N. Y. 387. If two causes of action exist in favor of the corporation they must be separately stated. Fleitman v. Un. Gas Imp. Co., 174 App. Div. 781, 161 N. Y. Supp. 650. Capacity to Sue or be Sued, etc. Ill [State reason for suing, as thus] : That the directors of said defendant company have been duly requested ^^ by this plaintiff, and a majority thereof have refused and neglected, ^^^ to cause an action to be brought by defendant corporation to [state briefly the relief sought by present action]."^^^ [Or, That the defendants, U. V., W. X. and Y. Z., are the executive officers of the defendant company and constitute a majority of its board of directors and are in control there- of, ^^" and without their consent or direction this action can- not be brought by the defendant company.] ^" ^" Request to sue must be alleged; to charge notice and neglect is insuffi- cient. FIjTin V. Brooklyn, etc., R. Co., 9 App. Div. 269, 211 N. Y. Supp. 566, aff'd 158 N. Y. 493. ^'' If mere neglect be charged, the time of request should be alleged so that it may appear to amount to re- fusal. Kavanaugh v. Com. Tr. Co., 103 App. Div. 95, 92 N. Y. Supp. 543; Leslie v. Lorillard, 31 Hun (N. Y.), 305. ^'^ Such demand and refusal are essential elements of the cause of action. O'Connor v. Va. Pass., etc., Co., 184 N, Y. 46; Flynn v. Brooklyn City R. Co., 158 id. 493; Greaves v. Gouge, 69 id. 154; Boyd v. Sims (Tenn., 1889), 11 S. W. Rep. 948, 3 Pickle, 771; Hulton v. New Castle, etc., Ry. Co., 138 Pa. St. Ill, 20 Atl. Rep. 937, unless excused by other defendants' control of corporation. For sufficiency of the allegation, see Cummings v. Brown, 122 App. Div. 505, 107 N. Y. Supp. 498. 2« Directors merely in their capac- ity as such are not proper parties defendant. Mulheran v. Gebhardt, 93 App. Div. 98, 86 N. Y. Supp. 841. Where the wrongdoer owns a majority of the capital stock arid elected the board of directors, futility of demand is sufficiently shown. Rotbw. Robertson, 64 Misc. 343, 118 N. Y. Supp. 351. **' When facts are alleged showing that the demand would be unavailing, i. e., that the wrongdoers are in com- plete control of the corporation, de- mand upon the corporation to bring the action is unnecessary. Jacobson V. Brookljm Lumber Co., 184 N. Y. 152; Hanna v. Lyon, 179 N. Y. 107; Seagrist v. Reid, 171 App. Div. 755, 157 N. Y. Supp. 979; Barr v. Erie R. R. Co., 96 id. 444; Hawes v. Oak- land, 104 U. S. 450; Botts v. Turnpike Co., 88 Ky. 54; Mount v. R. T. Co., 93 Va. 427; Rothwell v. Robinson, 39 Mum. 1; Nathan v. Tompkins, 82 Ala. 437; Farnwell v. G. W. T. Co., 161 111. 522. But it is not sufficient to merely allege "that the present board of directors are united in the interest of and under the control of" or "are subservient to the dictation and domination of" the wrongdoer.^. Brewer v. Boston Theatre, 104 Mass. 378; O'Connor v. Va. Pass., etc., Co., 184 N. Y. 46^ Nor is it enough to allege that the majority of the directors who au- thorized the corporate act are still in office, if there is no charge that such directors were guilty of wrongdoing. 112 Abbott's Forms of Pleading 112a. The Same, in United States Court.^^^ [Required by U. S. Eq. Rule 27; and sustained by Quincy V. Steele, 120 U. S. 241.] [Title and address of bill as in Form 83, adding "as well for himself as for other stockholders similarly situated."] That your orator was, at the time of the transactions hereinafter complained of, and now is, a stockholder of the said company, [or, that since the transactions hereinafter complained of, your orator has become a stockholder of the said company and his shares have devolved on him by op- eration of law, stating how]. That this suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. [Here set forth with particularity, including time and place, his efforts to secure action by the corporation, both through directors and stockholders, and the causes of his failure, or his reasons for not making such effort] XVIII. TRUSTEES 113. By Testamentary Trustee. That on or about the day of , 19 , one M. N. died in the county of , a resident thereof, ' leaving his last will and testament, which was thereafter and on or about the day of , 19 , duly ad- mitted to probate by the surrogate of said county; that in and by said last will and testament, said M. N. appointed plaintiff [executor thereof and] trustee under the trust created McCoy V. Gas Engine & Power Co., Nassau Bank, 174 App. Div. 254, 135 App. Div. 771, 119 N. Y. Supp. 160 N. Y. Supp. 297. 864. Notice to the stockholders and If the corporation is in the hands of request that they take action to re- a receiver, or other person who has dress the wrong is not necessary in an authority to sue and who has super- action in a New York State Court, seded the control of the board of See Cont. Sec. Co. v. Belmont, 206 directors, demand upon him must be N. Y. 7. alleged and demand upon the direct- 2*" See notes to preceding form, ors is unnecessary. Planten v. Nat. Capacity to Sue or be Sued, etc. 113 in and by the following provision thereof [set forth provision creating trust:] That plaintiff duly accepted said trust, and has since acted and is now acting as such trustee. 114. By Successor or Substituted Trustee."' [Allege appointment of original trustee as in preceding form.] That on or about the day of , 19 , said [original trustee] died; that thereafter, and on or about the day of , 19 , in proceedings duly in- stituted for the purpose of securing the appointment of a successor trustee to said [original trustee], deceased, plaintiff was by an order duly made by the Supreme Court for the county of , duly appointed successor trustee under the said trust created by said will of said M. N., and there- upon duly qualified as such. 115. By Trustee in Bankruptcy. 2** [From Cohen v. Am. Surety Co., 192 N. Y. 227.] A. B., as trustee in Bankruptcy of the Estate of M. N., Bank-/ rupt, plaintiff, against Y. Z., defendant. That on or about the day of , 19 , a petition of certain creditors of [the bankrupt] was duly filed in the office of the clerk of the United States District Court -*' Adapted from complaint in If the trustee is being sued in his Ludington v. Merch. Nat. Bank, 102 representative capacity, for an injury App. Div. 251, 92 N. Y. Supp. 454, incident to his conduct of the bank- aff'd 182 N. Y. 522. rupt's business, an allegation that ^" After action brought the fact he was duly authorized by the Dis- that plaintiff is adjudicated a bank- trict Court to carry on the business rupt and a trustee appointed does not should be included. McAuley v. abate the action, nor is it necessary Jackson, 166 App. Div. 846, 151 N. Y. to substitute the trustee as the plain- Supp. 120. tiff. Colgan v. Finck, 159 App. Div. 57, 144 N. Y. Supp. 408. 114 Abbott's Forms of Pleading for the [Southern] District of New York, and such proceed- ings were duly had thereunder that on or about the day of , 19 , said [bankrupt] was duly adjudicated a bankrupt; that thereafter and on or about the day of , 19 , plaintiff was duly appointed the trustee in bankruptcy of the estate of said [bankrupt] and duly quali- fied as such and is now acting as such trustee. ^^^ '■" These allegations may properly failure of the creditors to act. But be made more specific so as to show the allegations as given in the form whether the trustee was appointed by are good on demurrer. Bouton v. the creditors and his appointment Wheeler, 118 App. Div. 426, 104 approved by the referee, or whether N. Y. Supp. 33. the court appointed the trustee on CHAPTER III COMPLAINTS IN ACTIONS FOR MONEY LENT, MONEY PAID AND MONEY HAD AND RECEIVED I. Money lent. page 116. Lender against borrower 118 117. The same, on an account 120 118. The same, where note was given 122 119. The same, with charge that defendant fraudulently induced loan 122 120. The same, where chattel mortgage was given, and deficiency remains after enforcement .- 123 121. By pledgee of stock for excess of loan over price realized on sale 124 II. Money paid. 122. By one who has paid money to a third person at defendant's request , 124 123. By maker of accommodation note, having paid it . . . . . 126 124. By accommodation acceptor, against drawer 127 125. By one having paid a raised check 127 126. By indorser of note, having paid a part 128 127. By a municipal corporation to recover the amount of a judg- ment against it founded upon an injury caused by the will- ful act or negligence of defendant 129 128. By stockbroker for money advanced on account of his prin- cipal in the purchase of stocks 131 129. The same, on "short" sales 131 130. By brokers for advances under numerous transactions 132 131. By broker who has submitted a disputed transaction to arbitrament under rules of his exchange, and paid the award, against his principal 133 132. By landlord, having paid tax, water rate or assessment, which tenant had agreed to pay 135 133. By surety against principal, on lease 136 134. The same, for money paid on undertaking 137 135. The same, after payment of debt by surety 138 136. By surety against co-surety; action at law for contribution. . 139 137. By one of two joint makers or indorsers of a note, having paid it, against the other for contribution 140 138. Against grantee assuming to pay, to recover deficiency judg- ment paid by plaintiff, a prior grantee under similar cov- enant -. . . 141 115 116 Abbott's Fokms of Pleading PAGE 139. Bill in equity by trustee of corporation having paid a judg- ment for failure to file annual report against co-trustee for contribution 143 140. By tax collector to recover of property owner the amount of tax which as collector he had been compelled to pay 146 141. For repairs made upon party wall 147 142. By wife against husband, after payment by her of her own and their children's support 148 III. Money received. 143. General common-law form for money received 149 144. General form for use in New York and other code states 150 145. Against agent for money received from plaintiff 151 146. Against agent, for money collected 151 147. The same, by assignee, with more specific statement ....... 152 148. Against agent for profits made from sale of competing line of goods 153 149. Against broker, for proceeds of note discounted 154 150. Against factor for price received by him for goods sold 154 151. By consignor against bank for proceeds of sale of goods de- posited by factor 156 152. Against attorney at law, for money collected 157 153. The same, to recover money placed with attorney for invest- ment 157 154. To recover balance of bank deposit made by plaintiff 158 155. The same, and accruing interest where deposit was at interest on monthly balance 159 156. By executor or administrator against savings bank for deposit made by decedent 160 157. Under the statute to recover back a wager 161 158. For money lost at play . . . . 162 159. By employer to recover his inoney lost by clerk at gambling. . 163 160. To recover excess over legal rate of interest under the statute 164 161. For money paid under contract void under statute of frauds • • 165 162. For money paid to defendant under duress 166 163. By infa,nt to recover money paid under executory contract. . 167 164. By infant to recover money invested in a copartnership. . . . 168 165. To recover money paid to defendant by an incompetent person 169 166. By or against corporation, for money paid under idtra vires contract . ^ 170 167. By tenant to recover amount deposited upon obtaining lease 171 168. For repaymejit of purchase price of article, conditioned on the same proving satisfactory 172 169. For prepayment for goods, which were not delivered 172 170. For advances on a contract for services, unfulfilled 173 171. For repajTiient of earnest money on a contract for the pur- chase ofTeal estate; failure of vendor to tender deed 174 Complaints in Actions foe Money Lent, Etc. 117 PAGE 172. The same, where deed was rejected on ground of defective title 177 173. The same, with allegation of fraud in inducing plaint;iff to make contract 178 174. Against one to whom plaintiff conveys his real property under an agreement to sell and pay proceeds to plaintiff 179 175. To recover money paid under void assessment, where assess- ment has been vacated 180 176. The same, where the assessment was regular on its face 183 177. To recover from niunicipaUty amount paid for tax certificates, which were invalid because of defect in the assessment .... 185 178. To recover money involuntarily paid, in satisfaction of taxes levied on personal property 186 179. By pledgor of collateral, against the pledgee, to recover excess received over the amount of the debt 188 180. The same, by assignees of a debtor, against his pledgees of a mortgage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the pledgees; — to recover its excess over the amount of the notes, and to have the notes delivered up 189 181. To recover fees collected by public officer not paid over according to statutory direction 191 182. To recover fees of usurped public oflBce 192 183. Against one who receives funds with knowledge or notice of misappropriation 192 184. The same, money received under circumstances putting de- fendant on inquiry 193 185. To recover partnership funds applied bya partner to discharge his private debt . 194 186. By trustee in bankruptcy, to recover preferential payment . . 195 187. To recover money paid under mutual mistake of fact; taxes erroneoSfely assessed 196 188. To recover money overpaid by mistake; bank against de- positor 197 .189. The same, erroneous account rendered to plaintiff and paid. . 198 190. The same, on a sale of goods - 199 191. To recover moneys deposited under irrevocable trust for plain- tiff, but withdrawn by donor 199 192. To recover insurance tnonies collected by defendant 200 193. The same, defendant a factor •. 201 194. Against one w'ho has received plaintiff's share of proceeds of security On their Joint property 202 195. Against executor, for money received by decedent 203 196. For repay6ierit of a judgment paid and afterwards reversed . . 204 197. For restitution; by junior attaching creditors, after reversal of » order vacating prior attachments under which sheriff had paid over moneys to junior attaching creditors 205 118 Abbott's Forms of Pleading PAGE 198. To recover amount paid on contract which plainti£F has elected to rescind on the ground of fraud 207 199. The same, after rescission because of defendant's breach. . . . 208 200. Against one who has wrongfully disposed of plaintiff's prop- erty, plaintiff waiving the tort 209 201. For money paid by plaintiff to defendant upon defendant's false representations 210 202. To recover moneys paid to defendant on fictitious transac- tions 210 203. Allegation of the character of a "bucket-shop" transaction. . 211 I. MONEY LENT 116. Lender against Borrower. I. That on or about the day of [or, between the day of , 19 day of , 19 ] at the city of , 19 , and the ,ithe 1 The language of the books on pleading is that every material fact must be stated with cerlainty; and this means particularity with respect to the details of the fact alleged, sufiBcient to distinguish it from any other similar fact. For instance, in the above form, the statement of the time and the place of making the alleged loan could not be omitted without rendering the allegation uncertain according to the use of that term at common law, since it would not then fully describe the transaction it had reference to. These details are, however, in them- selves otherwise immaterial, — that is, they are matters of description merely, for the purpose of identifica- tion, and not matters of substance which afford ground for an issue. If, for instance, the defendant should answer in this case, that he denied that he ever borrowed any money from the plaintiff at the city named, his answer would be frivolous. Under the old practice, it was cus- tomary to state incidents of time, place, quantity, etc., under a vide- licet, — e. g., "that heretofore, viz.," as it had been said by good authori- ties that the omission of a videlicet will render it necessary to prove such matter precisely as laid, even though it was immaterial. But even then the better opinion was, that the use of a videlicet did not make that immaterial which would otherwise have been material; and on the other hand, that the omission of the vide- licet did not make that material which would otherwise have been immaterial, 1 Chit. PI. 277, note m, and cases there cited; 2 Campb. 307; 1 Saund. 170, note 2; Vail v. Lewis, 4 Johns. (N. Y.) 450; Gleason v. McVickar, 7 Cow. (N. Y.) 42; Ladue V. Ladue, 16 Verm. 189. It may be said that in general under the new practice, both in England and in this country, the common-law rule, that time and place must be averred of every ma- terial or traversable fact, is abro- gated. If time, in itself,* is material it ought to be stated; but where the Complaints in Actions for Money Lent, Etc. 119 defendant [or, defendants] ^ borrowed from plaintiff '■' the sum of dollars, [or, various sums aggregating dollars, the dates and items whereof are set forth in schedule A hereto annexed and made part hereof] '' which defendant promised to repay [with interest from said day] upon de- mand ' [or, within one month thereafter — on the day of ,19 — or, in a short time, by which expres- only materiality of it is to show that one fact occurred after another one, it is sufficient to state that the one was subsequent. And where the allegation of time is wholly omitted, if the adverse party is really embarrassed he may move to have the pleading made more definite and certain on showing how he is prejudiced. When, however, the precise time is material to be proved, for instance in the case of a notice of demand and non-payment of the note to charge the indorser, or in the case of the period for which al- leged usurious interest is reserved, it must be stated, and truly stated. This is a simple and convenient rule. N. Y. Code Civ. Pro., § 546, pro- vides that "when one or more de- nials or allegations of a pleading are so indefinite and uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made . more definite and certain, by amend- ment." The pleader must allege the material facts, and the mere cir- cumstances of time and place need not be stated except where the omission would leave the pleading such "that the precise meaning or application thereof is not apparent;" and even in such case a demurrer ought not to be sustained, but the party aggrieved by the uncertainty must move to compel an amendment. There seems no reason for using the videlicet under the Code, except as sometimes a concise way of indicating a lack of positive knowledge respect- ing the time, sum or place mentioned. See, also, note 8 to Form 210. ^ The allegation may properly be that the defendants borrowed, al- though the money was delivered to one of them, or to a third person. Those to whom it is agreed the loan is made are primarily liable, regard- less of who actually receives the money. Isracson v. Etkin, 148 App. Div. 219, 132 N. Y. Supp. 1044. 'An allegation that "defendants borrowed" leaves nothing indefinite or uncertain; the extent of the in- terest of each defendant as between themselves is immaterial, if they together borrowed the money. Citi- zens' Cent. Nat. Bank v. Munn, 115 App. Div. 471, 101 N. Y. Supp. 435. * Particulars will be required on defendant's motion, if not given in this way, Dunn v. Dunn, 108 App. Div. 308, 95 N. Y. Supp. 719. ' Defendant is entitled to know upon what terms as to repayment plaintiff claims the loan was made. In the absence of any allegation as to time of repayment, the presump- tion of law would be that it was agreed to be immediately repaid [Peets V. Bratt, 6 Barb. (N. Y.) 662,] or whenever the lender chose to de- mand it. Wallach v. Dryfoos, 140 App. Div. 438, 125 N. Y. Supp. 305, 120 Abbott's Fobms of Pleading sion, "a short time," the plaihtiff and defendant meant and intended a period of about ^ — or, otherwise according tofaxit]. II. That [if demand was necessary ' a7id has been made, insert, thereafter and before this action — or, on or about the day of , 19 ^— the plaintiff duly demanded payment of the same from the defendant, but] no part of said sum has been paid ' [or, if any payments have been made, no part of said sum has been paid, except — state briefly the total of payments],^" and the sum of dollars, is now due and owing ^^ from defendant to plaintiff, with interest from the day of ,19 [if it was to be repaid on demand, this will be the day of demand}.* Wherefore [etc., demand of judgment]. 117. The Same, on an Account.^^ I. That on or about the day of ,19 , at "From Bloch v. Bloch, 131 App. Div. 859, 116 N. Y. Supp. 339. If the agreement was to repay when able to do so, there must be allegation and proof of defendant's ability to repay. See de Cordova v. Sanville, 177 App. Div. 592. ' In New York no demand need be alleged or proven upon a promise to pay one's own debt for a specified amount upon demand. First Nat. Bank v. Story, 200 N. Y. 346; Wal- ■ lach V. Dryfoos, supra. ' The time of demand will only be material where interest commences to run therefrom, or where the loan was repayable a specified time after demand. 'The allegation of non-payment is essential. See Wallach v. Dryfoos, supra; Lent v. Mass., etc., Ry. Co., 130 N. Y. 504; Cochran v. Reich, 91 Hun, 440, 36 N. Y. Supp. 233. "> The plaintiff need not state pay- ments made on account of the claim as entering into the statement of the cause of action, for it is no part of it [Van Demark v. Van Demark, 13 How. Pr. (N. Y.) 372; Giles v. Betts, 15 Abb. Pr. (N. Y.) 285], but in order to enable him to deny payment as to the balance; and to prevent de- fendant from answering. " This is held to be a sufficient allegation that the sum sued for is due and payable, if the facts show the liability. Wallach v. Dryfoos, supra. 1^ This form finds support in the provisions of N. Y. Code Civ. Pro., § 531, and under decisions in Ochs v. Frey, 47 App. Div. 390, 62 N. Y. Supp. 67; Allen v. Patterson, 7 N. Y. 476; Freeborn v. Glazier, 10 Cal. 337; Moffett v. Sackett, 18 N. Y. 552; Hentz v. Miner, 18 N. Y. Supp. 880; 46 N. Y. State Rep. 636. See, also, cases cited in notes to Forms 213, 234, and 423. Complaints in Actions for Money Lent, Etc. 121 the city of , ^^ the defendant was indebted to plaintiff in the sum of dollars on an account " for money theretofore loaned by plaintiff to defendant [as more fully appears by Schedule A hereto annexed and made a part of this complaint]. ^^ " This is a sufficient statement of the place where the payments in the account" mentioned were made. Emery w. Fell, 2 T. R. 28. " We think the practitioner should be somewhat cautious how he em- ploys this general form of com- plaint, except in cases where the items of the claim are embraced in an account. The case of Allen v. Patterson, 7 N. Y. 476, decided simply that a demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action, would not lie to a com- plaint merely alleging "that the de- fendant is indebted to the plaintiffs in the sum of, etc., on an account, etc." But the question whether a motion against this complaint, on the ground that it was indefinite and uncertain, would lie, was left wholly untouched. That question was pre- sented in Cudlipp v. Whipple, 1 Abb. Pr. (N. Y.) 106, which was an ac- tion by assignees, of a demand upon an account. The allegations of the complaint in relation to the demand were, "that the defendant was in- debted, etc., in the sum of, etc., being a balance of an account due from said defendant to said W., on an account for money lent by said W. to said defendant, and for money paid, laid out and expended by said W. to and for the use of said defend- ant, and by his request." On de- fendant's motion to make the com- plaint more definite and certain, the court held that the action being upon an account the remedy of defendant for any lack of fullness in details furnished by the complaint, was not by motion, as sought, but by de- manding a copy of the account re- ferred to, under the provisions of § 158 of the Code. (Now Code Civ. Pro., § 531.) Neither of these cases is authority for the position that this form is suf- ficiently definite and certain in an action not founded upon an account. And the result of the cases would seem to be, that where the action is not on an account, this complaint may be obnoxious to a motion to make it more definite and certain, if defendant is prejudiced by its want of particularity. Eno v. Wood- ward, 4 N. Y. 249; Blanchard v. Strait, 8 How. Pr. (N. Y.) 83; Wood V. Anthony, 9 id. 78; Chesborough v. N. Y. & Erie R. R. Co., 13 id. 557; Graham v. Camman, Id. 360; Hall v. Southmayd, 15 Barb. (N. Y.) 32. But it is not necessarily obnoxious to such a motion. Adams v. Holley, 12 How. Pr. (N. Y.) 326; Dows v. Hotchkiss, 10 N. Y. Leg. Obs. 281. An account for various items may be alleged as a single cause of action, though the items accrued at different times, and an averment of a general promise to repay is not necessary. Dows V. Hotchkiss, 10 N. Y. Leg. Obs. 281. We regard this as the true rule, and it is further supported by the cases above cited, though the contrary was held in Aconn v. Amer-^ ican Mineral Co., 11 How. Pr. (N. Y.) 24. " The usual practice is to annex 122 Abbott's Forms of Pleading II. [As in Form 116.] Wherefore [etc.; demand of judgment], 118. The Same, Where Note was Given.'« [As in Form 116 to the *.] That said loan was evidenced by a. promissory note for dollars made by said defendant to the plaintiff, dated , 19 , and payable [six months after date], which note has not been paid [or any part thereof], although the same has become due and payable, and the same has ever since been and is now in the possession of this plaintiff, who is ready and willing and hereby offers to deliver the same up to the defendant upon the trial of this action." Wherefore [etc., demand of jvdgment]. 119. The Same, With Charge that Defendant Fraud- ulently Induced Loan.^* [After alleging the making of the loan, and its non-payment, the items of his account, although also extended note on Pleading in the N. Y. Code (§ 531) provides that Avoidance under Code Procedure in it is not necessary to set forth the N. Y., L. E. & W. R. Co. v. Robinson, items, but if not annexed the section 25 Abb. N. C. (N. Y.) 120. also provides the defendant may de- ^ See, also, Form 225, and notes mand them, and the demand must thereto. The only purpose served be obeyed; if not complied with, by adding these allegations of fraud defendant is entitled to an order is to give the right to plaintiff to precluding plaintiff from giving evi- obtain the defendant's arrest imder dence to establish the items. Geb- Code Civ. Pro., § 549, and if such hard v. Parker, 120 N. Y. 33. arrest is had, to also enforce a judg- " PlaintiS may charge the loan as ment through body execution. If, his cause of action, using the note however, these allegations of fraud merely as evidence, imder the fa- are included, they must be estab- miliar rule that the dishonor of com- lished at the trial or plaintiff's com- mercial paper revives the antecedent plaint dismissed. (Id.) debt. , In order that it shall appear that " This is really pleading in avoid- the action is founded upon the loan, ance of an anticipated defense, not there should be no allegation of necessary, but sometimes useful in damage to plaintiff, and the amount overriding what may be the only demanded should be the exact defense. See note to Form 221 and amount of the loan, with accruing Abb. Brief on Pleading, 2d ed., p. 949; interest. Complaints in Actions for Money Lent, Etc. 123 as in Form 116, allege the facts showing the fraud as though in an action for Fraud and Deceit, ^^ as:] That at the time of the making of the said loan, and as an inducement thereto, defendant for the purpose of ob- taining it falsely and fraudulently stated and represented to plaintiff [state representations, as] that he was then the owner of a judgment against one M. N. of , for the sum of dollars, obtained in the court of , that there was no assignment of said judgment and no lien upon it; that said representations were false and were known by defendant to be false when made, and were made with the intent of deceiving plaintiff and obtaining from him the said loan; that plaintiff rehed on such representations and was thereby induced to make said loan; that defendant was not the owner of any such judgment, and no such judgment ever existed.^" 120. The Same; Where Chattel Mortgage was Given and Deficiency Remains After Enforcement." [After allegation of loan as in Form 116.] That as collateral security for the repayment of said loan defendant executed and delivered to plaintiff a chattel mort- gage for the amount of such, loan upon [briefly indicate chattels, as] certain household furniture therein mentioned. That defendant did not pay to plaintiff the amoimt of said loan when the same became due and payable; that thereafter plaintiff duly took said [furniture] and duly sold the same as provided in said mortgage and received therefor the sum of dollars, from which sum he necessarily paid the sum of dollars for the expenses of sale. " Consult other " forms of com^ .leston v. Purrer, 102 App. Div. 544, plaint under Chapter XLI, Fraud 92 N. Y. Supp. 879. AND Deceit. '"^Support for the sufficiency of ^i' These allegations held sufficient this form may be foundin Beadleston in Elwell v. Russell, 29 App. Div. 43&, v. Furrer, 102 App. Div. 544, 92 N. Y. &1 N. Y. Supp. 964. It is not suffi- Supp- 879; Ochs v. Fray, 47 App. cient to merely allege that the loan Div. 390, 62 N. Y.'Supp. 67; Adams was obtained by means of false and Jjaundry Machine Co. v. Prunier, 214 fraudulent representations. Bead- N. Y. 637. 124 Abbott's Forms of Pleading That no part of the sum of dollars, remaining due upon said loan after applying thereto the net sum of dollars realized upon said sale, has been paid by defendant. Wherefore [etc.]. 121. Complaint by Pledgee of Stock for Excess of Loan Over Price Realized on Sale. That on or about , 19 , at , the plaintiff loaned to defendant the sum of dollars, [state terms of repayment, see Form 116] taking as security therefor shares of the capital stock of the Company; that on or about the day of » 19 > said stock was duly sold, and the plamtiff received therefor the sum of dollars, with which the defendant is entitled to be credited on account of said loan; [allege any expense neces- sarily incurred in realizing upon collateral] ^^ that the amount owing to the plamtiff by the defendant on , 19 , for said loan and interest was the sum of dollars; that after crediting the defendant said sum of dol- lars, there remains due and owing to the plaintiff because of the premises the sum of dollars, which sum has been due since , 19 . Wherefore [etc., demand of judgment]. n. MONEY PAID 23 122. By One Having Paid Money to a Third Person at Defendant's Request. I. That on or about the day of ,19 , 22 Such expense is recoverable if 179, 93 N. Y. Supp. 436. This as- alleged. See Bank of Staten Island sent is usually estabUshed by showing V. Silvia, 89 App. Div. 465, 85 N. Y. either (1) a previous request, (2) a Supp. 760. subsequent promise to reimburse, 2' The action lies whenever plain- (3) legal compulsion on plaintiff to tiff can show a payment of money, or pay what defendant ought to have ■ its representative,' to the use of de- paid, or (4) other circumstances fendant, and an express or implied showing that he did not officiously assent by defendant to the making volunteer, but was justified in rnak- of the payment. Hathaway v. ing the payment without express County of Delaware, 103 App. Div. assent. Kiefer v. Troy School, etc. Complaints in Actions for Money Lent, Etc. 125 [at ], at the request of the defendant and for his use and benefit," the plaintiff paid to one M. N. dol- lars,^' [allege briefly the purpose of payment '^ as — ] in settle- ment of a debt then due to him from the defendant. II. That in consideration thereof, the defendant promised to repay said sum of dollars to the plaintiff [on demand]." (Ind., 1885), 1 N. E. Rep. 560; Abb. Trial Ev. 249, and cases cited. See note 27 as to alleging promise. " ^* It is not necessary to allege that the payment was for defendant's use and benefit, when the facts al- leged require such an inference. Murray v. Estes, 19 App. Div. 209, 45 N. Y. Supp. 1002. ^^ Under Code pleading payment in negotiable paperj or other equivalent of money, is enough to support the allegation of paj^nent in money. See Witherby v. Mann, 11 Johns. (N. Y.) 519; Stone .v. Porter, 4 Dana (Ky.), 207. 2» Babcock v. Anson, 122 App. Div. 73, 106 N. Y. Supp. 142. The above complaint might be good against demurrer without the words de- scriptive of the claim against the defendant which was paid off by plaintiff. Campbell v. Shiland, 23 Pac. Rep. 324. But it would prob- ably be obnoxious to a motion to make the complaint more definite and certain, if the defendant needed to be informed of the particulars of the debt alleged to have been paid on his behalf, in order that he might identify it with that which he re- quested the plaintiff to pay, and as- certain whether it was in truth paid. Chesborough v. N. Y. & Erie R. R. Co., 13 How. Pr. (N. Y.) 557. In general the plaintiff should, as fully as he can, distinguish the. claim from others that may have existed against the defendant. Where the circumstances of the payment are presumably within the defendant's own knowledge, less detail will be necessary than in other cases;^e. g., where a note made by defendant is paid, a very general description of the note will be suflBicient. If the outlay was for the purpose of acquiring property for defendant's benefit, it is not necessary to allege or prove a tender of the property. Jones v. Gould, 209 N. Y. 419. ^ Implied promises need not be al- leged in pleading under the Code. It is sufficient to state the facts from which the law infers a liability or im- plies a promise; for these are the facts constituting the cause of action. Babcock v. Anson, supra. If there was an express promise, it should be alleged as in the form above; but if only to be implied by law, that allegation may be omitted, whereas in paragraph one the object of the payment had been briefly stated, so far as necessary to show the facts upon which the law implies a promise. Farron v. Sherwood, 17 N. Y. 227; Kraner v. Halsey, 82 Cal. 209, 22 Pac. Rep. 1137. The terms of repayment must be alleged, as an essential part of the agreement. If nothing be alleged in this respect the law will imply a promise of imme- diate repayment. See note 5 to Form 116. 126 Abbott's Forms of Pleading III. That [on or about the day of , 19 , the plaintiff demanded payment of the same from the de- fendant,^ but] he has not repaid the same. Wherefore [etc., demand of judgment].'' 29 123. By Maker of Accommodation Note, Having Paid it.^" I. That on or about the day of , 19 , at , the plaintiff made and delivered to the defend- ant his promissory note, of which the following is a copy: [or, state its legal effect, as in Form 126.]- II. That the plaintiff never received any consideration or thing of value therefor, but said note was made and given to the defendant, at his request and for his acconunodation, and upon his promise that he would pay it at maturity. III. That as the plaintiff is informed and believes, the defendant thereafter and before its maturity negotiated said note for value. IV. That defendant failed to "pay said note at maturity; that the plaintiff was thereupon compelled to, and did, on or about the day of , 19 , pay the sum of dollars in satisfaction thereof to one M. N., who was then the owner and holder thereof; that no part of said siun has been repaid to the plaintiff. Wherefore [etc., demand of judgment].^^ ^ Promise to repay one's own debt promise to repay it at a particular on demand does not require allega- time though without mention of in- tion or proof of demand before action, terest, and though no demand was See note 7 to Form 116. made, — from the date when pasrment ^' Interest should be claimed from became due by the promise, the day when it is due, as follows: Where money is expended on a Where money is expended by promise to repay it with interest, — plaintiff on an understood condition from the date of the expenditure, that defendant would pay the prin- ^ The accommodation maker, or cipal on demand, and demand was indorser, is a surety, and when he has made, — ^from the date of the demand, paid the note may recover as such ' Where money is expended on such from the real debtor for money paid, condition, but there was no de- Baker v. Martin, 3 Barb. (N. Y.) 634; mand, — from the date of the com- Abraham v. Mitchell (Pa., 1886), 6 mencement of the suit. East. Rep. 819. Where money is expended on a " Under N. Y. Code Civ. Pro., Money Loaned, Paid, Had and Received 127 124. By Accommodation Acceptor Against Drawer.^^ That on or about the day of , 19 , plaintiff, at defendant's request, and for his accommodation, accepted a certain draft, drawn by defendant on plaintiff to the order of one L. M., payable days after sight, for dollars. That at the time of maturity thereof plaintiff had no funds of defendant to pay said draft, and plaintiff was compelled to and did pay to said L. M. dollars in satisfaction of the same,'^ no part of which has been repaid. Wherefore [etc., demand of judgment]. 125. By One Having Paid a Raised Check." I. That at , in the State of , and on or about the day of , 19 , one M. N. drew and delivered his certain draft or bill of exchange numbered , dated at said place on said day, wherein and whereby it directed the plaintiff to pay to the order of 0. P., dollars. II. That thereafter, and before the payment by this plain- tiff of said draft, as hereinafter mentioned, the amount of § 1916, a surety, including a drawer or § 1916; Beech v. Jones, 5 C. B. 696; indorser, may recover, in an action Garrard v. Cottrell, 10 Q. B. 679. against his principal, his reasonable '* The complaint is adapted from costs and other expenses, incurred the pleadings in First Nat. Bank v. necessarily and in good faith, in the Continental Bank, 17 Weekl. Dig. prosecution or defense, by the ex- (N. Y.) 42; White v. Same, 64 N. Y. press or implied consent of the prin- 316. cipal, of an action or special proceed- If the bank making collection acts ing relating to the demand secured, merely as the collecting agent, it is This provision does not affect any not liable after it has paid the amount special agreement relating to those to its principal. Natl. Park Bank v. costs and expenses. ' Seaboard Bank, 44 Hun, 49, aff'd '2 An action for money paid will lie 114 N. Y. 28. under these circumstances. Whit- That this action will lie though the well V. Brigham, 19 Kck. (Mass.) 121. raised check has been certified, see '' If plaintiff has resisted collection 67 N. Y. 458, 45 Tex. 203, 45 Gal. at the request or with the sanction of 406; followed, in case of an oral defendant, any costs which may have promise to pay the raised check, been paid by him may be recovered in Parke v. Roser (Ind., 1880), 9 N. E. this action. N. Y. Code Civ. Pro., Rep. 511. 128 Abbott's Forms of Pleading said draft was changed, fraudulently and without the au- thority, consent or knowledge of said M. N., or of this plaintiff, from said dollars to the sum of dollars. III. That thereafter the defendant presented said draft, bearing an indorsement in blank and purporting to be that of the said payee, to this plaintiff, and demanded payment thereof. IV. That on or about the day of , 19 , the plaintiff, being in ignorance of said alteration, and be- lieving that the said draft had been drawn by said M. N. for the sum of dollars, paid to the defendant the amount of dollars on said draft, and received the same in its said altered condition from the defendant, which draft is now in plaintiff's possession. V. That on or about the day of , 19 , plaintiff for the first time had knowledge or information that said draft had been altered, as stated above, and that the same was not genuine asto the amount thereof. VI. That thereafter, and before the beginning of this action, to wit, on or about the day of , 19 , plaintiff notified defendant of the fact of said altera- tion and demanded the repayment of the sum of dollars, less the sum of dollars, to wit, the sum of dollars, being the amount by mistake paid to de- fendant by plaintiff over and above the true amount of said draft. VII. That defendant refused and still refuses to pay to plaintiff the said sum of dollars. Wherefore [etc., demand of judgment]. 126. By Indorser of Note, Having Paid a Part.'' I. That on or about the day of , 19 , '* W^here an indorser has paid up haps he can sue either one for money the whole of a note and thus become paid, etc. Baker v. Martin, 3 Barb, the legal owner of it, he can sue (N. Y.) 634; Wright v. Butler, 6 either the maker or the prior in- Wend. (N. Y.) 290; McGregory v. dorser, or both, on the note. Or per- McGregory, 107 Mass. 543. But Money Loaned, Paid, Had and Received 129 at , defendant made and delivered to plaintiff his promissory note dated on said day, whereby he promised to pay to the order of plaintiff days after date, the sum of dollars, for value received [or, set out copy of the note, as in Form 123]. II. That thereafter, and before its maturity, the plaintiff indorsed and negotiated said note for value. III. That at maturity said note was dioly presented for payment to the defendant [or, allege excuse for non-present- ment], but was not paid, whereof the plaintiff had due notice, and that thereafter this plaintiff was compelled to pay, and on or about the day of , 19 , did pay, to one M. N., the holder of said note, on account of the amount due thereon from the defendant, the sum of dollars, no part of which has been repaid to plaintiff. Wherefore [etc., demand of judgment]. 127. By a Mxinicipal Corporation to Recover the Amount of a Judgment against it Founded upon an Injury Caused by the Willful Act or Negligence of Defendant.^® I. [Allege incorporation as in Form 64.] II. [Allege defendant's default as though the action were for where he has only paid it in part, '' A form in an action for money it seems he must sue for the amount paid is presented here, in accordance actually paid, as for money paid to with various decisions holding that the use of the maker or prior in- such an action will lie. City of dorser. Wright w. -Butler, 6 Wend. Rochester v. Campbell, 123 N. Y. (N. Y.) 284, aff'g 20 Johns. (N. Y.) 405; Lord Elec. Co. v. Barber Asphalt 367, and 2 Wend. (N. Y.) 369; Co., 165 App. Div. 399, 150 N. Y. Pownal V. Ferrand, 6 Bamw. & C. Supp. 1000; Bailey v. Bussing, 28 439, 13 Eng. Com. L. R. 230; Harley Conn. 455; Grand Trunk Ry. Co. v. V. Davis, 16 Minn. 487. It seems Latham, 63 Me. 177; Bank of Utica that separate prior indorsers cannot v. Childs, 6 Cow. (N. Y.) 238. be joined as defendants in such an On the other hand, the more gen- action for money paid, etc. Barker erally accepted theory of these ac- V. Cassidy, 16 Barb. (N. Y.) 177. tions by the one liable per infortunam See Form 137, for an action for to recover over from the one liable contribution by an indorser against through his own fault, is subrogation; a subsequent indorser, alleging an that is to say, they are actions for agreement that they should be liable tort, in which the recovery against jointly. plaintiff is the measure of damages, 130 Abbott's Forms of Pleading his negligence. See post, under Negligence.] That plaintiff had notice of such [obstruction].^'' III. That, by reason of defendant's negligence as afore- said, one L. M., on or about the day of , slipped and fell upon said [accumulation of ice] and broke his leg [or, otherwise according to the fact]. IV. That thereafter said L. M. brought suit in the Court against the plaintiff to recover from it the damages suffered by him as aforesaid; that plaintiff thereupon notified defendant of the commencement of said action, and offered to said defendant opportunity to defend against the same, and notified him that it required him so to do, but defend- ant refused and neglected said offer; that plaintiff defended against said action, and thereafter such proceedings were had that on the day of , 19 , a verdict was rendered against it, upon which on the day of , 19 , judgment was duly given in said court against the plaintiff and in favor of said L. M. for the sum of dollars; that plaintiff has heretofore paid said judgment.^^ V. That on or about the day of , 19 , plaintiff demanded of the defendant repayment of said sum of dollars, with interest from the day of rather than actions on constructive been held essential. Fahey v. Har- con tract for money paid to defend- vard, 62 111. 28; contra, Mayor v. ant's use. City of Rochester v. Dimmick, 49 Hun, 241, 2 N. Y. Campbell, 123 N. Y. 405; City of Supp. 46, 20 Abb. N. C. 15. But if N. Y. V. Com, 133 App. Div. 1, 117 the complaint shows that a judgment N. Y. Supp. 514; Same v. Hearst, has been rendered against the city, 142 App. Div. 343, 126 N. Y. Supp. its regularity will be presumed, and 917; Port Jervis v. First Nat. Bank, notice, as a condition of liability, in- 96 N. Y. 550; note and cases cited ferred as against demurrer. Id. from many jurisdictions in 30 Abb. " As to the effect of such judgment N. C. (N. Y.) 173. Other forms are, under such circumstances, including therefore, presented under "Negli- notice to the defendant, see City of GENCE," post, which see, with their Ithaca v. Crozier, 148 App. Div. 493, notes. ^ 132 N. Y. Supp. 863; City of N. Y. ^' If the injured person's action v. Lloyd, 148 App. Div. 146, 133 was compromised before judgment N. Y. Supp. 118; Murphy v. City of an allegation of notice to the city has Yonkers, 213 N. Y. 124. Money Loaned, Paid, Had and Received 131 , 19 , but no part thereof has been paid [except, etc.], Wherefoee [etc., demand of judgment]. 128. By Stockbroker, for Money Advanced on Account of His Principal m the Purchase of Stocks.^' I. That plaintiff is a stockbroker, doing business in the city of .'" II. That on or about the day of ,19 plaintiff purchased for and on account of the defendant, and at his request, the following stocks: ""^ [designating the stocks and prices] ; and defendant agreed that said stocks would be fully paid for by him immediately at the expiration of thirty days from the day of purchase [or otherwise according to actual agreement]. [III. That on or about the day of , 19 , the defendant paid to the plaintiff, on account of the said purchase of stock, dollars.] IV. That the defendant failed to pay the sum of dollars [which is the balance] due for said stocks as agreed by him as aforesaid. That after defendant's failure so to do, and on the day of , 19 , at , and upon due notice to defendant of the time and place of sale, plaintiff sold the said stocks for defendant's account, for [stating the price]. V. That there is now due and payable to the plaintiff from the defendant, on account of the said purchases of stock, the sum of dollars. Whekefore [etc., demaiid of jydgmsnt]. 129. The Same, on " Short " Sales. "^ I. [As in preceding form.] " This form is in part adapted from " Of course, actual purchases, or Whitehouse v. Moore, ^3 Abb. Pr. actual "short sales" must be shown. (N. Y.) 142. Kurd v. Taylor, 181 N. Y. 231; Cam- *° This is a material averment in mann v. Huntington, 89 App. Div. this action. See Heame v. Keene, 5 99, 85 N. Y. Supp. 344. Bosw. (N. Y.) 584. " Adapted ' from Rathbone v. 132 Abbott's Forms of Pleading II. That on or about the day of , 19 , at , plaintiff was employed by the defendant to sell for him [state character of stock, and any instructions as to price]. III. That thereafter and on [the same day] plaintiff sold said stock [at said price], and thereupon notified defendant of the fact of such sale and requested that he deliver to plaintiff said stock in order that plaintiff might make de- livery thereof for his account and in accordance with the terms of the sale thereof. IV. That defendant failed and refused to deliver said stock to plaintiff within a reasonable time after said notice of the sale thereof [or, within days after said notice of sale, which was the time for delivery under the custom of brokers on the Stock Exchange at , of which custom defendant well knew]. V. That plaintiff was obliged to and did buy [the stock] in order to make delivery under said sale thereof, and was obliged to and did pay therefor the sum of dollars in excess of the sum received upon such sale.*^ Wherefore [etc.]. 130. Complaint by Brokers for Advances under Numerous Transactions/'' I. That at the times hereinafter mentioned the plaintiffs were and now are co-partners in trade, doing business as [cotton brokers] in the city of , under the firm name and style of II. That between the day of , 19 » and the day of , 19 , at the city of , subject to the rules and regulations of the Cotton Exchange, said plaintiffs, at the special instance and request Hatch, 80 App. Div. 115, 80 N. Y. "Another count for commissions Supp. 347; Kingsbury v. Kirwan, on the transaction may of course be 77 N. Y. 612; Caspary v. Hatch, 157 included. App. Div. 679, 142 N. Y. Supp. ** See cases cited under notes to 785. two preceding forms. Money Loaned, Paid, Had and Received 133 of said defendant, bought and sold for said defendant bales of cotton, future delivery. III. That in and about said purchases and sales said plain- tiffs, at the request of said defendant, paid out and expended for his use and benefit the sum of dollars, which said sum said defendant promised and agreed to pay to said plaintiffs, but that no part of the same has been pa,id, [ex- cept, etc.] although payment of the same has been duly de- manded. IV. That an- account, statement and bill of particulars of said purchases and sales is hereto annexed as part of this complaint, marked Schedule A. Wherefore [etc., demand of judgment]. 131. By Broker, who has Submitted a Disputed Transac- tion to Arbitrament under Rules of his Exchange, and Paid the Award, against his Principal/^ I. That during the times hereinafter mentioned plaintiff was and still is a broker engaged in the purchase and sale of stocks and other securities on commission, and was and still is a member of the [New York] Stock Exchange, which is an association of persons in like business with plaintiff, hav- ing a constitution and by-laws, under which all their business dealings with each other are conducted, and all disputes arising in the course of those dealings are arbitrated and de- cided, and that the decisions so made are by said Stock Exchange enforced; all of which said facts defendant well knew. II. That on or about the day of , 19 , and for some time previous thereto, the defendant was the owner and holder of about shares of the capital stock of the Company, which shares were at that time extensively dealt in among members of said Stock Exqhange; that on that day the defendant, through its board of trustees, at a regular meeting thereof, adopted the following resolution, to wit: ** Action sustained in Sistarc v. Best, 88 N. Y. 527. 134 Abbott's Forms of Pleading "Resolved, That the shares of Company stock be sold by the president for the best interest of the without further delay, and in such form as* will protect the in its claim against , and that he report his proceedings at the next meeting of the board." III. That on that day one M. N. was and still is the presi- dent of defendant, and was the president referred to in the foregoing resolution, and that under the authority created thereby he proceeded to sell and did sell from time to time thereafter portions of said shares, IV. That on or about the day of j 19 , shares of the aforesaid stock still remained unsold, and under the authority of the aforesaid resolution said M. N., acting in behalf of defendant, employed plaintiff as broker and member of the said Stock Exchange, in con- sideration of commission, to sell said shares for dollars per share on the said [New York] Stock Exchange and in accordance with its rules and usages when- ever that price could be obtained therefor. V. That under said employment plaintiff did, on the day of , 19 , upon the [New York] Stock Exchange, at a regular session thereof, sell the said shares of stock at the aforesaid price, and duly notified de- fendant of said sale. VI. That immediately thereafter plaintiff demanded through said M. N. that defendant furnish him with the aforesaid shares for dehvery, in pursuance of said contract of sale, but that defendant refused and neglected to deUver the same, whereby the Uability for a breach of the aforesaid contract to deUver was thrown upon plaintiff, and under the rules and constitution aforesaid of the [New York] Stock Exchange, as well as by law, he became, and was per- sonally Uable for the same and for all losses arising there- from, and he became and was also hable in case of ioability or failure to fulfill said contract to the penalty of expulsion from said board. VII. That shortly after the aforesaid sale the market price Money Loaned, Paid, Had and Received 135 of the aforesaid shares advanced, and defendant, through its said president, claiming that plaintiff could be relieved of liabiUty on said sale, requested plaintiff to have said question arbitrated before the said [New York] Stock Ex- - change, and thereupon, at the request and with the knowl- edge, consent and privilege of the said defendant, and in accordance with the said constitution and by-laws of the said [New York] Stock Exchange, the said arbitration com- mittee of the said the [New York] Stock Exchange, before which committee the said defendant appeared and submitted to the jurisdiction thereof, did arbitrate and decide on or about the day of , 19 , that the purchaser of said stock was entitled to receive from this plaintiff for his damages by reason of such non-delivery the sum of dollars, being the difference between the aforesaid contract price and the price of said shares when defendant refused to deliver the same, and this plaintiff, with the knowledge, consent and privity of the defendant, did pay said sum of - dollars to said purchaser. VIII. That immediately thereafter plaintiff xdemanded that defendant reimburse him the aforesaid amount, but that defendant has refused to pay the same or any part thereof. Wheeefore [etc., demand of judgment]. 132. By Landlord, Having Paid Tax, Water Rate or Assess- ment, which Tenant had Agreed to Pay/^ I. That at , and on or about the day of , 19 , plaintiff and defendant entered into an agreement by which the plaintiff leased to the defendant a house in , and defendant agreed, in part considera- tion for such letting [etc., reciting stipulation to pay tax, etc.].'" * Action on common covmts sus- dependently of any covenant in the tained in Curtis v. B. Co., 32 Mich, mortgage to such effect. Southard v. 291. Dorrington, 10 Neb. 119. A mortgagee may pay the amount " In the absence of such a stipula- of tax, and enforce it in the same tion the burden of payment would manner as the mortgage debt, in- remain on the landlord. N. Y. 136 Abbott's Forms of Pleading n. That there was duly levied and assessed upon said premises for the year 19 , and while the said covenant of the aforesaid agreement on the part of the defendant was in full force, and the defendant was in possession of the premises by virtue of said letting, a tax of dollars, which the defendant neglected to pay. [Or, That in the year 19 ' , the sum of dollars was duly assessed and charged upon said lot by the of the city of for water rents of that year, which sum the defendant failed and neglected, etc., as above.] *^ [Or, That in the year 19 , the sum of dollars was duly assessed and charged upon said lot by commissioners appointed by the Court upon the application of the city of in the matter of widening street, be- tween and ; that the defendant failed and neglected, etc., as above.] III. That by reason aforesaid the plaintiff was, on or about the day of ; 19 , compelled to pay, and did pay, the said sum of dollars, with dollars arrearages of interest, amounting in the whole to dollars, of which no part has been repaid. Wherefore [etc^, demand of judgment]. 133. By Surety on Lease, against Principal. I. That on or about the day of , 19 , the defendant proposed to enter into an agreement with one M. N., of which the following is a copy: [setting it forth. Or may allege, an agreement in writing, whereby he was to hire of M. N. the house, designating it, for the term of , and to agree to pay therefor, to the said M. N., the rent of dollars in equal quarterly installments]. Univ. V. Am. Book Co., 197 N. Y. a lien is imposed by law upon the 294. premises for the charges for such ''Where the charge for water water, and the landlord pays them, supply depends solely an the quan- he may recover over against the tity of water used, use by the tenant tenant. N. Y. Univ. v. Am. Book is a voluntary purchase from the Co., 197 N. Y. 294. city, and he is liable; therefore where Money Loaned, Paid, Had and Received 137 II. That at the request of the defendant the plaintiff made his guaranty thereon, in writing, of which the following is a copy: [setting it forth. Or say, his guaranty thereon, in writ- ing, whereby, in consideration of one dollar, the plaintiff guaranteed to said M. N. the faithful performance on the part of defendant of the said agreement]. III. That thereupon the defendant delivered his said agreement and plaintiff's said guaranty to said M. N., who thereupon, and in consideration thereof, accepted the same and leased said premises to defendant for said term and at said rental.^' IV. That a portion of said rent, to wit, the installment of dollars, which became due on the day of , 19 , the defendant failed to pay. V. That the plaintiff was compelled to pay and did pay, on the day of , 19 , to the said M. N., and to the use of the defendant in settlement of said unpaid installment of rent, the sum of dollars, being the aforesaid sum, with interest, and that no part of the same has been repaid to the plaintiff. Wherefore [etc., demand of judgment]. 134. By Stxrety against Principal, for Money Paid on Undertaking.^" I. That on or about the day of , 19 , in the Court a judgment was duly given against the defendant, and in favor of one M. N. for dollars [or, for the possession of specific property, etc.], from which the said defendant thereafter appealed to the Court. " The defendant's legal liability *• A surety upon an undertaking to pay the debt which plaintiff has of one of several joint tort feasors, paid, is an essential fact in an action who, upon paying the entire judg- to recover the money paid, unless ment has been adjudged to be subro- there be an express promise by de- gated to all the judgment creditors' fendant to repay the plaintiff. 2 rights under the judgment, may Greenl. on Ev. 103, § 114, n. The proceed to enforce it against all the liability under the lease, however, tort feasors. Kolb v. Nat. Surety does not depend on actual occupancy Co., 176 N. Y. 2.33. by the tenant. 138 Abbott's Foems of Pleading II. That on or about the day of , 19 , at the request of the defendant, the plaintiff executed an undertaking on appeal, a copy of which is hereto annexed marked " A " and made a part of this complaint, [or, whereby he undertook, ete., reciting the obligation].^^ III. That on or about the day of , 19 , in the said [appellate] court, judgment was duly given affirm- ing the said judgment, with dollars costs and dis- bursements. IV. That on or about the day of , 19 , the plaintiff wag compelled to and did pay dollars upon the said undertaking, to the said M. N., no part of which sum has been repaid to plaintiff. Wherefore [etc., demand of judgment]. 135. By Surety against Principal, after Payment of Debt by Siu-ety. I. That on or about the day of , 19 , the defendant bought of one M. N., certain goods, viz. [give general description] of the value of, and for which defendant agreed to pay the sum of, dollars; that at the time of such sale and in consideration thereof, plaintiff, at de- fendant's request and upon his promise to repay to him any loss sustained thereby, guaranteed to said M. N. the pay- ment by defendant of said sum of dollars. II. That said goods were thereafter delivered to defend- ant, but that said defendant did not pay therefor. III. That on or about the day of , 19 , plaintiff was compelled to pay and did pay to said M. N. the said sum of dollars, in settlement of the said price of said goods. [Or, if suit was brought and judgment recovered:] III. That on or about the day of , 19 , an action in the Court for the county of was brought by said M. N. to recover from the plaintiff the price of said goods; that plaintiff at once notified defendant of the " See complaints on Undertakings on Appeal. Money Loaned, Paid, Had and Received 139 commencement thereof, and requested him to defend against the same, [and at defendant's request plaintiff defended against the same] ; that on the day of ,19 , judgment was therein duly given by the said Court against the plaintiff, therein the defendant, for the sum of dollars, being the amount of said price of said goods, with interest and costs. IV. That on or about the day of , 19 , the plaintiff was compelled to pay and did pay to said M. N. the sum of dollars, being the amount of the said judgment '^ and interest thereon, and that no part of the same has been repaid to plaintiff.^' Wherefore [etc., demand of judgment]. 136. By Surety against Co-sureties; Action at Law for Contribution.^* [Allege the existence of the joint obligation, the liability arising '^ It is not free from doubt in what cases a surety may recover costs paid by him in defending himself. His right against the principal seems less doubtful than that against a co- surety. In New York his right is defined by statute (N. Y. Code Civ. Pro., § 1916), and the express or implied assent of the principal re- quired. '' A guarantor may, if he chooses, take an assignment of the debtor's obligation to himself, and sue upon it. Teberg v. Swensott (Kan., 1884), 4 Pac. Rep. 83. ** In New York, all or any of the sureties may be included in one ac- tion, at plaintiff's option. Code Civ. Pro., § 454. But where it is sought to recover a greater propor- tion from defendants on account of the insolvency of another co-surety, by dividing the insolvent's liability among the others, it is necessary that all the sureties within the jurisdic- tion be parties. The latter is a suit in equity; the former, an action at law on the implied contract. Jewett V. Maytham, 64 Misc. 488, 118 N. Y. Supp. 635; Easterly v. Barber, 66 N. Y. 433; Riley v. Rhea (Tenn., 1880), 12 Cent. L. J. 250. In an ac- tion for contribution, an insolvent principal and insolvent co-sureties need not be made parties. Johnson V. Vaughn, 65 111. 425; Young v. Lyons, 8 Gill (Md.), 162. If joined, however, provisions may be made by the judgment for future reUef against them. Jewett v. Maytham, supra. Nor a surety who is out of the jurisdiction. Jones v. Blanton, 6 Ired. Eq. (N. C.) 115. The sureties who paid the whole debt, if they paid it jointly, may join in suing the one who did not pay for contribution, and, if one of the pay- ing sureties has died, his executor may be joined as one of the plaintiffs. Dussol V. Bruguiere, 60 Cal. 456. 140 Abbott's Forms of Pleading thereon, and plaintiff's payment in discharge thereof, adapting from preceding form of complaint by the surety against the principal.] ^^ V. That on or about the day of , 19 , plaintiff duly notified defendant of said payment so made by him, and demanded payment from the defendant of his proportionate part, to wit, the sum of , dollars, but that defendant refused to pay the same or any part thereof. Wheeefore [etc., demand of judgment.] ^^ 137. By One of Two Joint Makers or Indorsers of a Note Having Paid It, against the Other for Contribution." [Sustained in Owens v. Blackburn, 161 App. Div. 827, 146 N. Y. Supp. 966.] I. That on or about the day of , 19 , at , plaintiff and defendant made and delivered to one M. N. their joint [or, joint and several] promissory note, in writing, of which the following is a copy: [or, whereby, etc., as in Form 126.] [Or in case of joint indorsers; That on or about the day of , 19 , at , one M. N. made and de- Uvered to one 0. P. his promissory note, etc.; that — ^prior to the delivery of said note — or otherwise if according to ■ fact — plaintiff and defendant jointly indorsed said note, and agreed each with the other that they would be jointly liable for the amount thereof. ^^ "No allegation of the principal's Pick. (Mass.) 447], and equity will insolvency is necessary. Rankin v. decline jurisdiction without other Collin, 50 Ind. 158. grounds appearing. 2 Cent. Rep. *• If there are insolvent or absent 738; contra, Broughton v. Wimberly co-sureties plaintiff may preferably (Ala., 1881), 12 Rep, 523. See notes sue in equity. In Jewett v. Maytham, to preceding form. supra, the court evolved an interest- This form is supported by Van Be- ing form of judgment against the mark v. Van Demark, 13 How. Pr. defendant co-sureties, all of whom (N. Y.) 372. were at the moment insolvent. 5' Under § 118, N. Y. Nego. Instr. "Common-law courts afford an Law; indorsers are primo /acie liable adequate remedy in causes of action according to the order of their, in- fer contribution [Mason v. Lord, 20 dorsement, but it may be shown to Money Loaned, Paid, Had and Received 141 II. That at the maturity of said note the plaintiif was compelled ^' to pay and did pay the same in full with interest amounting in all to the sum of dollars; that no part thereof has been repaid to him, [although he has heretofore duly demanded of defendant the payment of one-half part thereof]. ^^ Wherefoee [etc., demand of judgment for one-half of the amount paid\. 138. Complaint against Grantee Asstuning to Pay, etc., to Recover Deficiency Judgment Paid by Plaintiff, a Prior Grantee tmder Similar Covenant.*' I. That on or about the day of , 19 , one M. J. T. [and T. H. T., her husband] conveyed to the plaintiff, in fee, certain premises, [describing them] by deed, \giving date and record] wherein, among other things, plaintiff assumed and agreed to pay a certain mortgage for dollars, then a lien on said property, [giving date and record]. II. That on or about the day of , 19 , plaintiff conveyed the said property to the defendant by deed, [giving date and record]. III. That, in the said deed, the defendant expressly as- sumed and agreed to pay the aforesaid mortgage for dollars, the same forming part of the consideration of the said conveyance, and then existing as a lien on the said premises so conveyed as aforesaid. IV. That the said deed was delivered to and accepted by have been otherwise agreed by them, before the cause of action is complete. George v. Bacon, 138 App. Div. 208, Williams v. Williams, 5 Ohio, 444; 123 N. Y. Supp. 103. Neilson v. Fry, 16 Ohio St. 552; ''The payment must be compul- contra, Chaffee t). Jones, 19 Pick. 260; sory to entitle the payer to contribu- Wood v. Perry, 9 Iowa, 479; Cage v. tion; but this does not mean that Foster, 5 Yerg. (Tenn.) 261; Parham there must be a suit, but only a fixed v. Green, 64 N. C. 436. and positive obligation. 1 Parsons I do not believe that the demand on Cont. 33; Peck v. Ingersoll, 7 is essential in New York. N. Y. 528. '^ From the complaint in Comstock " It has been held in the case of v. Drohan, 71 N. Y. 9, where the ac- sureties that demand is necessary tion was sustained. 142 Abbott's P'orms of Pleading the said defendant, and he thereupon entered into possession of the said premises. V. That on or about the day of , 19 , the said defendant conveyed the said premises, in fee, to one M., by deed, {giving date and record], wherein the said M. also assumed and agreed to pay the said mortgage. VI. That thereafter an action was commenced for the foreclosure of the said mortgage in the Court of county, and such proceedings were duly had therein that, on the day of , 19 , a judgment was duly made and entered in said action for the foreclosure of the said mortgage and the sale of the said premises; and said judgment further provided that if the proceeds of such sale should be insufficient to pay the amount reported due to the plaintiff therein, with interests and costs, the amount of such deficiency should be specified in the report of sale therein and judgment for such deficiency entered against [names], defendants in said action. [VII. On information and belief, that the defendant herein was not made a party to said action of foreclosure, or served with process therein, for the reason that he was at the time a non-resident of the State of , and personal service could not be made upon him.] VIII. That pursuant to said judgment of foreclosure the said premises were duly sold on or about the day of , 19 , by the referee ordered to sell the same, for the sum of dollars [and that plaintiff became the purchaser thereof]. IX. That upon such sale, there occurred a deficiency of dollars, as appears by the referee's report of sale duly filed in the oflSce of the clerk of the county of on the day of , 19 . X. That [plaintiff in order to prevent the entry of a judg- ment for deficiency against him in said action, on or about the day of , 19 , paid dollars, being the amount of the said deficiency, with interest from , and] thereupon, namely, on the day of Money Loaned, Paid, Had and Received 143 ,19 , a judgment was entered in said court against [names], and in favor of the plaintiff in said fore- closure suit, for the said sum of dollars, with interest from , , 19 . XI. That thereafter [plaintiff paid said judgment of dollars, with interest of dollars, in all the sum of dollars; that] the said judgment was duly assigned to the plaintiff, and before the commencement of this action he demanded of the defendant payment of the amount of such deficiency, with interest from ,19 , and at the same time tendered to her an assignment of said judgment against [naming the other defendants], duly exe- cuted by the plaintiff, but that defendant refused to pay the same, and has ever since neglected and refused to pay the same, although plaintiff has always been and still is ready and willing to deliver to said defendant an assignment of said judgment upon being paid the amount of said de- ficiency. Wherefore [etc., demand of judgment]. 139. Bill in Equity by Trustee of Corporation Having Paid a Judgment for Failure to File Annual Report against Co-trustee for Contribution.^^ [From bill in Nickerson v. Wheeler, 118 Mass. 295.] I. That on the day of , 19 , one M. N. '2 In New York the right of contri- is now made dependent on signing a bution between such delinquent false report. N. Y. Stock Corp. Law, trustees has been stated to depend §§ 34-35. solely upon statutory provision. The different rule in Massachu- Andrews v. Murray, 33 Barb. (N. Y.) setts rests upon the construction of 354; Wiles v. Suydam, 64 N. Y. 173. corresponding statutory provisions as The statute conferring such right providing merely a remedy upon con- (L. 1871, c. 657) has been repealed by tract (118 Mass. 295), while in New the General Corporation Law (c. 23, York it is construed as a penalty (81 Consolidated Laws); it seems, there- N. Y. 649). Wherever this liability of fore, that no action of this character the trustees is deemed to be in the would lie in New York. The former nature of a breach of contract, the liability to creditors in New York right of contribution between them State for failure to file an annual re- will probably be recognized, port has been aboUshed; the liability On the general principle of the right 144 Abbott's Foems of Pleading of , recovered judgment in the Court against the Company, a corporation organized and existing under the laws of the State of , for the sum of dollars ; and thereafter execution was issued tljereon and returned in no part satisfied. II. That thereupon said M. N. brought an action against the plaintiff herein and W. X., Y. Z., etc., wherein he alleged that your orator and said W. X., Y. Z., etc., were directors of said company, and said treasurer, and said clerk of said corporation, and were officers of said corpora- tion, when said debt, for which said judgment was issued, was contracted and when said judgment was rendered; that said officers did not [show default in complying with statute, as], within thirty days after the annual meetings of said corporation, deposit with the city clerk of said city of any certificate signed and sworn to by the president and a majority of the directors of said corporation, stating the date of said annual meetings, the amount of capital stock paid in, the name and number of shares held by each stock- holder, the amount invested in real estate and in personal estate, the amounts of property owned by and debts due to the corporation, and the amounts, as nearly as could be ascertained, of all existing demands against said corporation, all as ascertained and exhibited at the dates of said annual meetings as required by the provisions of the section of chapter of the acts of the year ; nor has any such certificate been deposited with said clerk since either of said annual meetings; wherefore, and by force of the provisions of the section of chapter of the acts of the year , the said defendants were jointly and severally liable for all debts of said corporation con- tracted after the expiration of thirty days from the date of said annual meeting held in said year ; as is all to contribution between wrongdoers, Miller, 22 Ohio St. 205; and cases see Bailey v. Bussing, 28 Conn. 455; cited to form of complaint by munic- Gower V. Emery, 18 Me. 79; Moore v. ipal corporation to recover from the Appleton, 26 Ala. 633; Smith v. one primarily negligent, supra, Form Foran, 43 Conn. 244; Acheson v. 127. Money Loaned, Paid, Had and Received 145 particularly set forth in said bill, to which your orator craves leave to refer for greater certainty. And your orator further complaining showeth, that all said defendants thereto, except said company, appeared and filed pleas or answers to said bill, and the said plaintiff's replications thereto; and that thereafter, upon a hearing before this honorable court it was decreed as follows: "This case came on to be heard, and was argued by counsel, and thereupon, upon, consideration thereof, it is ordered, ad- judged and decreed, that the plaintiff M. N. do recover of the defendants, A. B., W. X., etc., jointly and severally the sum of dollars, together with his costs of suit, to be taxed by the clerk, and that execution issue for said sums in favor of the plaintiff against said defendant, jointly and severally. This decree to be entered as of date " ; as will appear by the record of said suit in this court remain- ing, to which your orator craves leave to refer for greater certainty. And your orator further complaining showeth, that exe- cution was issued by this court on said decree against your orator and said W. X., Y. Z., etc., jointly and severally, for said-sum of dollars, and costs, taxed by the clerk of this court at dollars, together with cents for said writ of execution and interest to grow due thereon; that said execution was by said plaintiff placed in the hands of , a deputy sheriff of said county of , to be levied on the property or collected of the defendants therein named; that said , duly demanded the same of all said defendants, and they refused to pay the same, and that thereupon said levied the same on the property of your orator, heretofore to wit, on , to the full amount thereof, and your orator so paid thereon, for the debt and costs on said execution, and the fees of said , the sum of dollars; that the said amount was due, under said decree and execution, from all said defendants jointly, and that each was bound and ought to have paid his just and equal share and proportion thereof, and made con- 146 Abbott's Forms of Pleading tributions to do so; but that all said defendants except your orator, neglected and refused to do so; that the said de- fendants, W. X., Y. Z., etc., are each liable to and should contribute to pay your orator a just and full share and pro- portion of the amount of said execution so paid by him, and interest thereon; that the share which each of said defend- ants were hable and so bound to pay would be dol- lars, provided each and all of said defendants are able to and do pay their just proportion, and interest thereon from said day of last past; that he has demanded the same of each of said parties; that they have each, ex- cept , refused to pay the same, and still do refuse. And all which doings are contrary to equity and good con- science, and tender to the manifest wrong and injury of your orator: And inasmuch as your orator hath no plain, ade- quate and complete remedy at law, but can only have relief in equity, where such matters are cognizable and relievable : etc. 140. By Tax Collector to Recover of Property Owner the Amount of Tax which, as Collector, he had been Com- pelled to Pay/^ [Sustained in 1 Abb, N. C. (N. Y.) 449.] I. That on or about the day of , 19 , plaintiff paid for the use of the defendant, and at his request the sum of dollars, under the following circum- stances, viz. : That in the year , the plaintiff was the treasurer of the village of , ancj, by virtue. of such office, collector of taxes for said village. II, That defendant's taxes for the year 19 , to the amount of dollars, were included in the assessment rolls, which were duly dehvered to the plaintiff for collection, but no part thereof was paid to him. " If one by mistake pays taxes on Goodnow v. Stryker (Iowa), 16 N. W. another's land, and the true owner Rep. 486; Nixon v. Jenkins, 1 Hilt, adopts such payment, an action for (N. Y.) 318; s. p. Ely v. Norton, 2 money paid will lie against the owner. Abb. Ct. App. Dec. (N. Y.) 19. Money Loaned, Paid, Had and Received 147 III. That after the expiation of the time for the collec- tion of said taxes, and in the month of , 19 , the supervisor of the said town sued the plaintiff in the Court for the recovery of defendant's tax, with other unpaid taxes, and a judgment was duly given by said court against plaintiff, and entered in the clerk's office of county, for the full amount of defendant's taxes, viz., dollars. IV. That plaintiff paid said sum on or about , with certain other sums, in full satisfaction of the said judg- ment against him, and in full satisfaction of the said tax against defendant. Wherefore [etc.]. 141. For Repairs upon Party Wall. [Adapted from Kerwin v. Post, 120 App. Div. 179, 104 N. Y. Supp. 1005.] That at the times hereinafter mentioned plaintiff and de- fendant were the owners of adjoining lots in the city of known by the street numbers [state]; that upon each lot there was then standing a building, and between the two buildings there was a party wall standing about one-half thereof upon the premises of plaintiff and defendant. That said party wall became and was out of repair and in a dilapidated, ruinous and unsafe condition; that such condition was not caused by fire or other outside agency, but arose solely from age and use and natural causes of decay and deterioration. That thereupon and on or about the day of ,19 , plaintiff caused said party wall to be re- paired to such extent as to make the same safe and restore it to sound condition; that for such repairs plaintiff neces- sarily expended the sum of dollars. That although requested so to do, defendant has failed and refused to pay to plaintiff one-half the amount of such outlay, or any portion thereof. Wherefore [etc.]. 148 Abbott's Forms of Pleading 142. By Wife against Husband for Payment by her of her own and their Child's Support. [Complaint sustained in DeBrauwere v. DeBrauwere, 203 N. Y. 460.] " I. That plaintiff is now, and at all the times hereinafter mentioned was, the wife of the defendant. II. That there were born unto plaintiff and defendant as issue of their marriage [state children] all of whom are in- fants. III. That on or about the day of , 19 , defendant without cause abandoned plaintiff and their said children, and left them without any means of support, and has at no time since contributed anything toward their support. IV. That although plaintiff made due effort to procure necessaries for herself and said children upon the credit of the defendant, she was unable so to do, and that defendant had no financial credit upon which plaintiff could procure necessaries. V. That between the day of , 19 , and the commencement of this action, because the defendant failed so to do, plaintiff was obUged to and did furnish board, clothing and other necessaries for herself and their said children, to the damage of her separate estate in the sum of dollars. VI. That said board, clothing and other necessaries so furnished were necessaries, and were of the reasonable value of dollars, the sum which plaintiff expended there- for. VII. That no part of said sum has been repaid to plaintiff, although due demand has been made upon defendant therefor. Wherefgee [etc., demand of judgment]. '* See, also, Johnson v. Johnson, 157 App. Div. 289, 142 N. Y. Supp. 416. Money Loaned, Paid, Had and Received 149 m. MONEY RECEIVED « 143. General Common-law Form for Money Received.' [Not for use in New York; see note below.] I. That on or about the day of , 19 at '^ An action for money had and re- ceived is of broad scope, and is the outgrowth of the efforts of courts of law to enforce equitable obligations. It is well settled that money in the hands of one person, to which another is equitably entitled, may be re- covered in this common-law action by the equitable owner, upon an implied promise arising from the duty of the person in possession to account for and pay over to the per- son beneficially entitled. Roberts v. Ely, 113 N. y. 128. No privity of contract is required to sustain the action, except such as results from thp circumstances, and it is immaterial whether defendant's original possession was rightful or wrongful. An action of this character lies whenever one has obtained money from another through extortion, im- position, deceit or theft. In all such cases the tort may be waived, and the claim made for money had and received. Town of Bleecker v. Balje, 138 App. Div. 706, 123 N. Y. Supp. 809. It is not essential to the main- tenance of the action to show that money itself was actually received; such an action lies against an agent who discharged his own debt by offsetting it against an amount due his principal, although no money actually came into his hands. Beard- sley V. Root, 11 Johns. (N. Y.) 464; Allen V. Brown, 44 N. Y. 228. See a recent discussion of the general principles of the action in MiUer v. Schloss, 218 N. Y. 400. ^ This form cannot be safely used in New York, nor under any pro- cedure requiring the complaint to allege the "facts constituting the cause of action." If upheld against a demurrer, it would be ordered amended on motion so as to show the precise nature of the transaction. The allegation that the money was received "to the use or benefit of the plaintiff" is considered but the pleader's legal conclusion, and in- effectual without the facts to uphold it. Stemmler v. Alsdorf, 167 App. Div. 663, 153 N. Y. Supp. 8; Babcock V. Anson, 122 App. Div. 73, 106 N. Y. Supp. 142; Tate v. Am. Woolen Co., post; Lierian v. Lincoln, 2 Duer (N. Y.), 670; Distler v. Dabney, 3 Wash. St. 200, 18 Pac. Rep. 336; Betts V. Rache, 14 Abb. Pr. (N. Y.) 279. A charge that "defendant is indebted to plaintiff for money had and received by defendant amounting to dollars," is insufficient against demurrer. Tate v. Am. Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678; compare Updike v. Mace, 166 App. Div. 381, 141 N. Y. Supp. 687. The succeeding forms will suffi- ciently illustrate the requirements of the Code procedure, viz., the setting forth of the actual transaction so that the court can see that defendant has money for which ex cequo et bono he should account to plaintiff. Hall V. Prudential Ins. Co., 72 Misc. 625, 130 N. Y. Supp. 365. Yet the defendant may accept the complaint in this form, and under a denial questions of fact would arise. See Phoenix Bridge Co. v. N. J. Steel, 150 Abbott's Forms of Pleading [or, at sundry times between the day of , 19 , and the day of , 19 , at ], the defendant received from one M. N. [or, re- ceived from the plaintiff," or, otherwise] ** the sum of dollars, to the use of the plaintiff, which siaid sum defendant promised to pay to plaintiff on demand. II. That thereafter and on or about the day of , 19 [or, before this action], the plaintiff demanded payment thereof from the defendant. III. That defendant has paid no part thereof [except the sum of dollars]. Wherefore [etc., demand of judgment]. 144. The Same; General Form for use in New York ^d Other Code States.«» That heretofore, and in or about the month of , 19 , at , the defendant had and received the sum of dollars, the property of plaintiff,™ -wi^ich sum he promised to pay plaintiff, but has failed so to do, although payment thereof has been heretofore duly demanded. etc., Co., 30 App. Div. 614, 52 N. Y. Supp. 275. " In Villias v. Stern, 24 Misc. 380, 53 N. Y. Supp. 267, an allegation that defendant had received "from the plaintiff to the use of the plaintiff" was held sufficient as against a de- murrer. The opinion, however, is not illuminating or convincing. '* That the testimony shows the money came from another source than alleged is material only on the ques- tion whether defendant was misled, and does not constitute a failure of proof. Kraft v. Phipps, 23 App. Div. 26, 48 N. Y. Supp. 383. ««From Fiss v. Van Schaick, 63 App. Div. 301, 71 N. Y. Supp. 588. The complaint in that action con- tained, as other counts, other ver- sions of the transaction, so as to avoid a possible variance at the trial. See, also, Updike v. Mace, 156 App. Div. 381, 141 N. Y. Supp. 587. This form, unchallenged by motion to make more definite and certain, would undoubtedly be sufiicient to sustain the admission of proof at the trial of any circumstances under which defendant had obtained posses- sion of plaintiff's money. See, generally, the notes to the preceding form. "> It is not necessary for plaintiff to allege the sources of his title; so held where he sued as an equitable as- signee, but did not allege any assign- ment, or the facts from which it would be established. Hofferberth v. Duckett, 175 App. Div. 480, 162 N. Y. Supp. 167. Money Loaned, Paid, Had and Received 151 145. Against Agent, for Money Received from Plaintifif. That at , and on or about the day of ,19 , plaintiff paid to defendant the sum of dollars, upon defendant's promise [to pay and apply the same in extinguishment of plaintiff's liabiUty for the same amount to one M. N. ; that defendant failed to pay the said M. N., who thereupon sued plaintiff for said amount and recovered judgment therefor, which plaintiff thereafter fully paid. That plaintiff has demanded of defendant that he return said sum to plaintiff, but defendant has neglected and refused so to do.] ''^ 146. Against Agent, for Money Collected.^^ I. That between the day of , 19 , and the day of , 19 , the defendant was the agent of the plaintiff in [stating generally the employment as, collecting accounts due and owing to plaintiff in his business of coal dealer]; that as such agent defendant collected and received from divers persons, certain sums of money, for and on the account of the plaintiff, amounting in all to the sum of at least dollars,^' and that over and above the commissions and charges to which defendant was entitled as such agent, there was on said day of ,19 , in the hands of defendant belonging to plaintiff the sum of at least dollars. II. That on or about said day of , 19 , '1 From Miller v. Schloss, 218 N. Y. waives the tort and elects to hold the 400, reversing 159 App. Div. 704, 144 defendant liable upon contract. See N. Y. Supp. 996. also Form 200, and notes. '^ Under Britton v. Ferrin, 171 " This allegation is sufficiently N. Y. 235, this is an action in tort, to definite and certain in view of the which cannot be counterclaimed a defendant's superior knowledge, claim on contract. It is there con- West v. Brewster, 1 Duer (N. Y.), sidered that the legislature in giving 647; People v. Tweed, 63 N. Y. 194. to plaintiff the same remedies, has And no bill of particulars ought to be intended to change the character of required in the absence of knowledge this action to the .category of torts, on behalf of the prmcipal. Floers- If plaintiff so desires for any reason, cheim v. Musical Courier Co., 103 he may specifically allege that he App. Dfv. 388, 93 N. Y. Supp. 41. 152 Abbott's Forms of Pleading the plaintiff duly demanded payment of said sum of dollars from the defendant. III. That defendant has not paid the same, nor any part thereof.^^ IV. That the aforesaid sums were received by defendant in a fiduciary capacity, as agent for plaintiff." Wherefore [etc., demand of judgment].''^ 147. The Same; by Assignee, and More Specific State- ment. [Adapted from complaint in Greentree v. Rosenstock, 61 N. Y. 583.] " I. That in or about the month of , 19 , one M. N., of in the State of , appointed the defendant, who then resided at said , his agent to sell for him certain property in said State then belonging to him, and to collect certain claims owing to him from persons in said State; that the defendant accepted the said trust and agreed duly to account to said M. N. for the proceeds of all sales and collections made by him as such agent. II. That the defendant as such agent, on or before the day of , 19 , had and received 'for the '* An allegation of defendant's it was held (prior to the decision in wrongful and unlawful refusal and Britton v. Ferrin, supra) that plain- neglect to pay over on demand, and tiff could take judgment on such a of his conversion of the sum to his complaint without application to own use, is in accord with the theory court. of action. Britton v. Ferrin, 171 " In the precedent, there was N. Y. 235. Compare Starin v. added, at the end of paragraph III, Finda, 107 App. Div. 539, 95 N. Y. a charge that defendant "converted Supp. 379. the same to his own use." The court '5 This allegation is not essential, disregarded this allegation as merely where the complaint discloses the a conclusion of law. Such an allega- fiduciary capacity, in order to entitle tion may have no proper place in a plaintiff to an order of arrest under complaint for money received, but it N. Y. Code Civ. Pro., § 549. Moffatt has been lately held that under the V. Fulton, 132 N. Y. 507, 28 Abb. facts stated in the precedent the N. C. 260, 22 Civ. Pro. Rep. 126. defendant is guilty of a tort. Britton '« In SS. Richmond Hill v. Seager, v. Ferrin, 171 N. Y. 235. (See notes 31 App. Div. 288, 52 N. Y. Supp. 985, to preceding form.) Money Loaned, Paid, Had and Received 153 said M. N. from said sales and collections the sum of dollars, and thereafter on or before the day of , 19 , had and received for the said M. N., the additional sum of dollars. III. That the defendant failed to account for the said sums, or to pay the same or any part of the same to said M.N. IV. That on or about the day of , 19 , the said M. N. for value, duly assigned his claim against the defendant, for said sums so as aforesaid collected by de- fendant, to this plaintiff. V. That although thereto requested by the plaintiff, since said assignment and notice thereof to defendant, the de- fendant refused to pay to him the said sums or any portion thereof. Whekefoee [etc., demand of judgment], 148. Against Agent, for Profits Made from Sale of Com- peting Line of Goods.'* [From Reis v. Volck, 151 App. Div. 613, 136 N. Y. Supp. 367.] That during the times hereinafter mentioned defendant was employed by plaintiff as a salesman upon a drawing account and commission; that by the terms of his employ- ment defendant was to sell underwear for plaintiff in [a specified territory] and defendant agreed to give his services exclusively to plaintiff [except that he was permitted to sell for his own account hosiery, which did not compete in any way with the goods he was to sell for plaintiff]. That in violation of his agreement to give plaintiff his exclusive services, and without the knowledge of plaintiff, defendant between the day of ; 19 , and the day of , 19 , carried for sale and sold for his own account a line of underwear similar to that sold by plaintiff. " An action for money had and received is the appropriate remedy. Reis v^ Volclc, supra. 154 Abbott's Forms of Pleading That defendant made large profits from the sale of said underwear for his own accoimt, viz., the sum of at least dollars; that said amount of profits have been received by defendant imder such cu-cumstances that they rightfully belong to plaintiff. That although plaintiff has demanded the amount thereof, defendant has refused to pay any portion of said profits to plaintiff. 149. Against Broker, for Proceeds of Note Discounted. I. That on or about the day of , 19 , the plaintiff employed the defendant to prociu-e to be dis- counted a promissory note, the property of the plaintiff, made by one M. N. [here briefly describe the note], and there- upon the plaintiff deUvered the same to the defendant who undertook to procure it to be discounted for a commission of per cent, and to pay the balance over to the plain- tiff. II. On information and belief, that on or about the day of ) 19 , [or, thereafter and before the day of , 19 ], the defendant procured said note to be discounted and received as the proceeds thereof the sum of dollars. III. That plaintiff, on or about the day of , 19 , duly demanded from the defendant payment of the sum of dollars, being the balance of said proceeds after deducting said commission, but no part thereof has been paid by defendant. Wherefoee [etc., demand of judgment]. 150. Against a Factor, for Price Received by Him for Goods Sold. I. That on or about the day of , 19 , the plaintiff employed the defendant to sell upon commission certain property of the plaintiff consisting of [here fully desig- nate the goods], and thereupon delivered the same to him Money Loaned, Paid, Had and Received 155 for that purpose [or if a general employment; to sell plaintiff's goods upon a commission of per cent, and pursuant to said employment and on or about the day of delivered — designate the particular consignment — to defendant]. II. On information and belief, that thereafter, and before the day of , 19 , the defendant sold said goods for the sum of dollars, which sum he has heretofore received." III. That the proper and reasonable charges of the de- fendant for commissions and expenses therein, amount to dollars, and no more. IV. That on or about the day of ; 19 , the plaintiff demanded of the defendant payment of the sum of dollars, the balance of said amount received, after deducting said charges; ^^ but that defendant wrong- fully refused and neglected to do so, and has paid no part of the same." Wherefore [etc., demand of judgment]. " If the complaint alleges that de- «. Dolsen, 8 Barb. (N. Y.) 337; fendant sold but did not account to Halden v. Crafts, 4 E. D. Smith plaintiff, the plaintiff must prove (N. Y.), 490; s. c. svh nam. Walden that the sale actually took place, i). Crafts, 2 Abbott's Pr. (N. Y.) 301; Elboume v. Upjohn, 1 C. & P. 572, Baird v. Walker, 12 Barb. (N. Y.) 11 Eng. Com. L. R. 476. There must 298. be a direct averment of a sale and the As to the distinction, in respect to receipt of money. Brown v. Stebbins, the necessity of proving a demand, 4 Hill (N. Y.), 154. • between an action for not account- *" In an action against a factor for ing, and an action for not paying the proceeds of goods sold, of which over, see Cooley v. Betts, supra. he apprised his principal, a demand In an action against an agent for must be shown, unless he had instruc- not accounting, etc., a request to tions to remit, or the usage of his account and pay over must be al- business made it his duty to do so leged and proved. Bushnell v. without instructions. The action is McCauley, 7 Cal. 421. founded on a, supposed breach of '* In New York, the refusal by a trust or duty which must be made factor to pay over money received out affirmatively. Cooley v. Betts, is a tort. Britton v. Ferrin, 171 24 Wend. (N. Y.) 203; Ferris v. N. Y. 235. Paris, 10 Johns. (N. Y.) 285; Brink 156 Abbott's Forms of Pleading 161. By Consignor against Bank for Proceeds of Sale of Goods Deposited by Factor in his own Name.^^ I. [AUege defendant's incorporation and character as a bank; see Forms 4^, etc.] II. That plaintiff is a manufacturer of and sends portions of his goods to the city of New York for sale upon commission. III. That W. X., doing business at the city of , as a commission merchant, is the agent of the plaintiff, and as such receives and sells for said plaintiff his goods and wares upon commission. IV. That between the day of , 19 , and the day of , 19 , the plaintiff shipped and consigned to said W. X. as his agent, certain goods, wares and merchandise, for sale upon commission, and that said W. X. received, sold and rendered an account of sale of said goods, as the agent of this plaintiff; and, as the plaintiff is informed and beUeves, said W. X. thereupon deposited the proceeds obtained from the sale of said goods in said defend- ant bank, amounting to the sum of dollars, in the name of W. X., agent, for the sole benefit and as the moneys of the plaintiff. That, thereafter, and in payment of said proceeds so received as aforesaid, less their charges and com- missions, said W. X., agent, drew, delivered and paid to the plaintiff his check directed to the said defendant bank of which the following is a copy: [Insert copy.] V. That said plaintiff thereupon indorsed said check, and presented the same to said defendant bank«for pajmaent, but it was not paid, and the same was duly protested for non- payment and still remains unpaid. VI. That, as plaintiff is informed and believes, the pro- ceeds received by W. X., the agent of the plaintiff, from the '^ As to the right of the consignor and commission agent or factor, in to maintain this action, see Baker v. regard to the amount of money N. Y. Nat. Exchange Bank, 16 Abb. which the principal is entitled to N. C. (N. Y.) 458; Falkland v. St. receive from the sales made of his Nicholas Nat. Bank, 84 N. Y. 145. goods, see Britten v. Ferris, 171 As to the relations of principal N. Y. 235. Money Loaned, Paid, Had and Received 157 sale of plaintiff's said goods, wares and merchandise, and deposited by them in said bank as aforesaid, remained in said bank at the time of drawing and delivery of the said check to the plaintiff, and at the time of the presentation of said check for payment and the demand of the payment thereof, and that said funds have never been withdrawn, either by said W. X., agent, or by the plaintiff, and still remain in said bank as.the funds and property of the plaintiff. Wherefore [etc., demand of jtidgment]. 162. Against Attorney at Law, for Money Collected. I. That at all the times hereafter mentioned, defendant was and now is an attorney at law of the State of , engaged in the practice of his profession at II. That on or about the day of , 19 , plaintiff employed said defendant as such attorney to collect of one M. N. the sum of dollars, then due and owing from said M. N. to plaintiff; that on or about the day of , 19 , said M. N. paid the sum of dollars to defendant upon plaintiff's said claim. III. That plaintiff has heretofore demanded of defendant the payment of said amount,^^ less his charges for such col- lection, but defendant has not paid the same ** or any part thereof [except etc.]. Wherefore [etc., demand of judgment]. 153. The Same; For Money Placed with Attorney for In- vestment.*^ I. [As in preceding form.] *' A demand is essential; 4 Ala. for forms in tort upon similar facts, 493; 2 Sandf. (N. Y.) 141, 77 III. and cases there cited. 337, 5 Kan. 59, 10 Pa. St. 462, 18 An allegation that defendant has Ind. 342; unless excused by delay wrongfully and unlawfully converted tantamount to a refusal; 5 Eng. the money to his own use, to plain- (Ark.) 228, 77 111. 337. tiff's damage dollars, is '* The allegations here given allow improper in this form of action, and no doubt that the action is upon a is insufficient to make the action in breach of contract. Bevins v. Hulme, conversion. See Reed v. Hayward, 15 M. & W. 188. See, post, under 82 App. Div. 416, 81 N. Y. Supp. 608. title Complaints in Conversion, '^-phe complaint shows ground 158 Abbott's Forms of Pleading II. That defendant, while acting as plaintiff's attorney, and on or about the day of , 19 , received from him the sum of dollars for the purpose of in- vesting the same upon bond and mortgage for plaintiff's benefit. III. That defendant has invested no part of said sum, and has not paid said sum to plaintiff; that on or about the day of , 19 , plaintiff demanded of de- fendant that he pay over said sum to plaintiff but defendant has neglected and refused to do so. Wherefore [etc., demand of judgment]. 164. Complaint to Recover Balance of Bank Deposit Made by Plaintiff.^s [Sustained in Shattuck v. Guardian Trust Co., 204 N. Y. 200.] I. [Allege defendant's corporate capacity, as in Forms 4^, etc.] and engaged in the business of banking at the city of II. That at divers times between the day of , 19 , and the day of ; 1^9 , the plaintiff deposited various sums of money with the defendant, which it received on deposit, and agreed to repay to this plaintiff, or to his order, on demand [with interest on balances at the rate of per cent].'^ III. That on the said day of , 19 , there for arrest. Quail v. Nelson, 39 App. of a rule of substantive law, rather Div. 18, 56 N. Y. Supp. 865. than a statute of limitations and See notes to preceding form, and need not be pleaded by defendant. Forms under Conveksiont. in order to be available. Shattuck v. " If the real issue between the Guardian Trust Co., 204 N. Y. 200. parties is that the defendant bank The depositor has no duty to look has paid a forged check, plaintiff for forged indorsements. Metal. Sec. rriay use this form of complaint. Co. v. M. & M. Bank, 171 App. Div. See Shattuck v. Guardian Trust Co., 321, 157 N. Y. Supp. 321. 145 App. Div. 734, 130 N. Y. Supp. " Such deposit creates merely the 658. The requirement of § 326 of relation of debtor and creditor; a the Nego. Instr. Law, that notice fiduciary capacity under N. Y. must be given within one year after Code, § 549, is not shown thereby, the check has been returned to the Buchanan & Co. v. Woodman, 1 Hun depositor, is held to be in the nature (N. Y.), 369. Money Loaned, PaiC, Had and Received 159 remained with the defendant, of the said moneys so deposited as aforesaid, a balance undrawn by this plaintiff of dollars. IV. That on that day the plaintiff duly demanded,^^ from the defendant, the repayment to this plaintiff of the said balance [and accrued interest], but that the defendant re- fused and still refuses to repay the same. Wheeepore [etc., demand of judgment]. 155. The Same — and Accruing Interest, where Deposit was at Interest on Monthly Balance.*' [I and II as in last form, continuing as follows:] III. That when plaintiff made said deposits defendant promised and agreed to and with the plaintiff that it would repay the same upon demand, [and if interest was agreed for state it as thus], and further that it would pay to this plaintiff upon demand interest at the rate of per cent per annum [upon such sums or balances as should from time to time remain upon deposit to his credit upon the first day of each month thereafter, provided the same had so remained for thirty days previously thereto]; that on , 19 , plaintiff had upon deposit in said bank to his credit the sum or balance of dollars, which had so remained on deposit for thirty days previous to said date, etc. [alleging the monthly balances]. IV. That on > 19 , and continuously thereafter imtil and on > 19 , there remained to the credit of this plaintiff upon deposit with said defendant of 'the money ** A demand is necessary and must ment as to rate of interest, it was be alleged. Hales v. Seaman's Bank, merely alleged: "That thereafter 28 App. Div. 407, 51 N. Y. Supp. interest, in the amount of 140; Newburger v. State Bank, 70 dollars accrued upon plaintiff's de- Misc. 46, 127 N. Y. Supp. 956; posits." (See Shattuck v. Guardian Downes v. Bank, 6 Hill (N. Y.), 297; Trust Co., 145 App. Div. 734, 130 Brahm v. Adkins, 77 111. 263. N. Y. Supp. 658.) But if plaintiff 89 The complaint would be suf- has the data upon which to allege ficient, and pr&bably definite enough specifically, as in the form, it may to comply with the requirements in narrow the issue and simplify the this State, if after stating the agree- proof. 160 Abbott's Forms of Pleading aforesaid deposited which had not been repaid to plaintiff nor paid upon his order or by or with his authority or con- sent and which said defendant had received on deposit as aforesaid to the use of this plaintiff the sum of dol- lars, [and the interest due plaintiff upon the monthly bal- ances of deposits as above set forth, which interest on , 19 , at the rate of per cent per annum amounted to the sum of dollars]. V. That on , 19 , at the place of business of said defendant in the city of , and before the com- mencement of this action, plaintiff duly demanded of and from said defendant the said sum of dollars, to- gether with said interest; but no part thereof has been paid. Wherefore [etc., demand of judgment]. 156. Complaint by Executor or Administrator, against Savings Bank for Deposit made by Decedent.^" I. [Allege death, and letters to plaintiff as in Form 61 or 64.] II. [Allege incorporation and business of defendant; see Form^ 44 and 154.] III. On information and belief, that for many years prior to the day of , 19 , said M. N. [decedent] had an account and deposited moneys from time to time, with said defendant, [under the name of G. N,, which said last-mentioned name said M. N. assumed and used for and instead of his own]; that said defendant, on or about the day of , 19 , issued and gave to said M. N., [under said assumed name of G. N.], a book, num- bered , in which such deposits were entered, and that said M. N. ever since and up to the time of his death owned and had possession of said book, and that at the time of the death of said M. N., to wit: on the day of , 19 , the defendant had theretofore received from * Where a deposit is made in the v. Molloy, 153 App. Div. 73, 138 name of two persons, "payable to N. Y. Supp. 67, mod. and afE'd, 209 either, and to the survivor," the N. Y. 167. survivor may recover all. Bonnette Money Loaned, Paid, Had and Received 161 and had on deposit to the credit of said M. N. as aforesaid the sum of dollars. IV. [Allege demand, etc., as in Form 155.] Wherefore [etc., demand of judgment]. 157. Complaint tmder the Statute '* to Recover Back a Wager. I. That on or about the day of , 19 , at in the State of New York,'^ the plaintiff and de- fendant [or, one M. N.] entered into a wager [describe '^ it as thus: depending on the result of the general election in this State in that year, which was thereafter to take place — or, upon the event of a horse-race then about to take place].'* II. That plaintiff then and there paid to defendant the sum of dollars as plaintiff's wager upon said [horse- race], which said sum defendant has not repaid to plaintiff.'^ " N. Y. Penal Law, §§ 991, 994. '^ The place must be alleged, and of course be within the State to render the N. Y. statute applicable. Ithaca Fire Dep. v. Rice, 108 App. Div. 100, 95 N. Y. Supp. 464; Eggers V. Kinsman, 16 Abb. N. C. (N. Y.) 226. Upon a wager made in the State of New York, suit must be brought under the statute, as above. Rockwood V. Oakfield, 2 N. Y. St. Rep. 331, and eases, post. If upon a wager made in another State, it must be determined whether the action rests upon the common- law rule or the statute of that State; if upon the common law, the com- plaint must show the wager to have been on a subject repugnant to pubUc policy, etc. (1 Whart. Cont., § 449) and allege a demand upon de- fendant for return of the amount. Gridley v. Dom, 57 Cal. 78, 11 Pac. Rep. 634. If upon the foreign stat- ute, allege the statute as a fact and bring allegations of the wager, etc., within its provisions. (See next form.) '^ The nature of the wager should be alleged, so as to disclose its pro- hibited character. Id.; Arriatta v. Morrissey, 1 Abb. Pr. N. S. (N. Y.) 439; Langworthy v. Broomley, 29 How. Pr. (N. Y.) 92. '^ It is immaterial that plaintiff made the bet with intent to sue upon it. Moulton v. Westch. Racing Assoc, 95 App. Div. 276, 88 N. Y. Supp. 695. The wager must appear to be dependent on the character of event made unlawful by the statute. See Penal Law, § 991. '* Action sustaineid in Mendoza v. Levy, 111 App. Div. 449, 97 N. Y. Supp. 753; ano. dec, 98 App. Div. 326, 90 N. Y. Supp. 748. No de- mand is necessary before bringing the action. Id.; Ruckman v. Pitcher, 1 N. Y. 392, 20 id. 9. 162 Abbott's Forms of Pleading [Or, if action is against the stakeholder:] II. That while the event upon which said wager was made was still contingent — or, unknown, or, both, — the plaintiff deposited in the hands of the defendant, as stakeholder, the sum of , to abide the event of such wager, no part of which has been repaid to plaintiff.] '^ Wherefore [etc., demand of judgment]. 158. Complaint for Money Lost at Play.*' I. That at the city of , in the State of ,^ and on or about the day of , 19 , the plaintiff and defendant played with each other a game of chance at cards, called poker, for stakes or sums of money, by betting the same upon the chance of the game, [or other- wise state facts bringing the case within the statute].^^ II. [If the game was played in another State allege the law, as thv^:] That by an Act of the Legislature of the State of , entitled [giving title], duly passed and approved , 19 , and continuing in force and effect during the time in this complaint mentioned, it is provided among other things as follows, to wit: [setting forth copy of the statute or giving its substance]. III. That at said time and at such sitting the defendant, at said game of chance, won from the plaintiff, and the plain- tiff lost to the defendant by reason of his said plajdng at cards with said defendant a sum exceeding the sum of twenty-five dollars, to wit, the sum of dollars; and thereupon and at such time and sitting in payment of said plaintiff's losses to said defendant for his winnings aforesaid, said plaintiff then and there delivered and paid to said de- fendant the sum of dollars: [or if paid by check may ^ No demand is necessary. Ruck- not suflBcient to aver that faro is a man v. Pitcher, supra. game of lot or chance, but the facts " Framed under N. Y. Penal Law, must be stated to show whether the §§ 990, 995. case is under § 991 or § 995 of the ^ See note 92 to preceding form. Penal Law. See Rosenfeld v. Hend- 99 In a complaint under the statute erson, 5 Monthly Law Bui. (N. to recover money lost at faro, it is Y.) 2. Money Loaned, Paid, Had and Received 163 say: plaintiff then and there made and delivered to the said defendant his (plaintiff's) certain check in writing on the bank, for said sum of dollars, which check was duly paid upon presentation]. That such payment was within three months before the commencement of this action.^"" IV. Th^t by reason of the premises aforesaid an action has accrued to the plaintiff against the defendant, according to the provisions of the statute against gambling in such cases made and provided, to recover said sum of dollars so lost and paid to defendant. Wherefore, [etc., demand of judgment].'^''} 159. By Employer, to Recover His Money Lost by Clerk at Gambling. 102 I. That between the day of , 19 , and the day of , 19 , one M. N. was the clerk and employee of the plaintiff. II. That on divers days, between said day of , 19 , and the day of , 19 , the said M. N. unlawfully lost at play in a game of chance at cards to the defendant, and the defendant unlawfully won a't said play, and by illegal gambling, and received, from the ""> In an action under the New "" In Benisch v. Mandelbaum, 160 York statute to recover back money App. Div. 206, 145 N. Y. Supp. 91, lost at play, the complaint must an action in equity was held main- allege that a sum of twenty-five tainable by husband and wife to set dollars was lost by the plaintiff at aside an assignment of an insurance one time or sitting. Wilkenfeld v. policy made to secure the payment Attic Club, 74 Misc. 543, 134 N. Y. of a gambUng debt. Supp. 507. It is a defense that no '"^ Action sustained on this com- part of it was paid or delivered within plaint in Causidiere v. Beers, 1 Abb. three calendar months before the Ct. App. Dec. (N. Y.) 333, where it commencement of the action. Id. was held that the action was not See, also, Benisch v. Mandelbaum, founded upon the statute against 160 App. Div. 206, 145 N. Y. Siipp. betting and gaming, but upon the 91; Langworthy ii. Broomley, 29 principle that the plaintiff's money How. Pr. (N. Y.) 92; Arrietta v. was received under such circum- Morrissey, 1 Abb. Pr. N. S. (N. Y.) stances that it could not be retained 439. in good faith. 164 Abbott's Forms of Pleading said M. N., certain moneys, the property of and belonging to said plaintiff, amounting in all to the sum of dollars. III. That all the moneys, aforesaid, were at the time the same were respectively lost by the said M. N. and won by and paid to the defendant, as aforesaid, the actual property and belonging to the plaintiff; that the same were so lost and won, by and at the house of the defendant, at No. street, in the city of , at a certain game of chance at cards known as faro; and that the said M. N. never had or received from the defendant, and the defendant never paid nor gave to the said M. N. therefor any value or valuable consideration whatsoever. IV. That on or about the day of , 19 , the plaintiff demanded from the defendant all the moneys aforesaid, but the defendant wholly refused to deliver, and has not delivered, the same, or any part thereof, to the plain- tiff, but still wrongfully detains and withholds from the plaintiff the same and every part thereof. Wherefore [etc., demand of judgment]. 160. Complaint to Recover Excess Over Legal Rate of Interest under the Statute.^"^ I. That on or about the day of , 19 , at the city of , in the State of New York, plaintiff entered into a corrupt agreement with the defendant, whereby the said defendant, with the corrupt intent of re- ceiving and taking a greater sum for the loan of his money than at the rate of [six] per cent per annum, agreed to loan the plaintiff the sum of dollars, for the period of months, and the plaintiff with the like corrupt intent of paying more than the legal rate therefor, agreed that he would pay to said defendant for the loan of said 103 jj. Y. Gen. Business Law, value of such property. See Gilleran § 372. If the plaintiff gave property v. Colby, 164 App. Div. 608, 150 instead of an excess of interest money, N. Y. Supp. 326. he may sue to recover the excess of Money Loaned, Paid, Had and Received 165 money for the said space of time the sum of dollars, as interest.^"* II. That in pursuance of said corrupt and usurious agree- ment, the plaintiff, besides thereafter repaying said sum of dollars,"* did, on or about said day of ,19 , and within one year before the commence- ment of this action '"* pay, and the defendant corruptly took and received the said sum of dollars for said loan, which was in excess of [six] per cent per annum, for the said period for which said loan was made; that the interest upon said loan of dollars for said period at [six] per cent amounted to dollars, and that by reason aforesaid plaintiff has paid to defendant an excess of interest amount- ing to the sum of dollars. Wherefore [etc., demand of judgment for excess]. 161. For Money Paid under Contract Void under Statute of Frauds. 10^ [Complaint sustained in Graham v. Graham, 134 App. Div. 777, 119 N. Y. Supp. 1013.] That on or about the day of , 19 , the defendant entered into an oral agreement with the plaintiff [state character of agreement, sufficiently to reveal its void character, as:] whereby defendant promised and agreed to "•* See, as to the requirements of of limitations but a limitation of the the charge of usury, Von Haus v. right of action. Gilleran v. Colby, 164 Soule, 146 App. Div. 731, 131 N. Y. App. Div. 608, 150 N. Y. Supp.. 326. Supp. 512; Myers v. Wheeler, 24 "" That this action will lie under App. Div. 327, 48 N. Y. Supp. 611, such facts, see Day v. N. Y. Central affd 161 N. Y. 637; also other forms R. R. Co., 51 N. Y. 683; Reed v. of complaints and answers elsewhere McConnell, 133 id. 425. in these volumes, for which consult The action must be founded upon a index under Ustjuy. concession of the unenforceable char- "s The loan and legal interest must acter of the contract; plaintiff cannot be paid before this action will lie. recover under a complaint for dam- Wheelock v. Lee, 64 N. Y. 246; Lan- ages for the breach of the oral con- deker v. Property Security Co., 79 tract, and an amendment at the Misc. 157, 140 N. Y. Supp. 745, aff'd trial to this action upon implied con- 156 App. Div. 938. tract for money had and received is "" Necessary, as the requirement beyond the power of the trial court, ie not in the nature of a statute Reed v. McConnell, supra. 166 Abbott's Forms of Pleading purchase certain real estate in the town of , county, consisting of , of the value of about dollars, and convey the same to one N. G., the plaintiff's wife, in consideration that the plaintiff would repair the house on said land, improve said premises, pay the taxes and insurance and make a home for plaintiff's wife and children, all of which the plaintiff promised and agreed to do. That thereafter [show plaintiff's expenditure, under the terms of the oral agreement, as:] said premises were purchased by the defendant, and plaintiff moved thereupon and occupied the same, and prior to , 19 , expended the sum of in repairs thereto, [and also performed personal service in the making of said repairs to the amount of dollars]. That on or about the day of , 19 , the defendant repudiated said agreement and refused to [state defendant's obligation thereunder, as:] deed said real estate to said N. G. That plaintiff has demanded of defendant that he repay to plaintiff the amount so expended, but defendant has re- fused so to do. Wherefore [etc.]. 162. To Recover Money Paid to Defendant under Duress.'"' [Complaint sustained in 134th St. Co. v. Wells, 80 Misc. 215, 140 N. Y. Supp. 1051.] ™ For other cases involving a claim For other forms alleging duress, for the return of money paid under see index under Duhess. duress, see Williams v. Rutherford A threat to institute legal pro- Realty Co., 159 App. Div. 171, 144 ceedings to recover an alleged claim, N. Y. Supp. 357; Clancy v. Dutton, or to pursue a legal remedy, is not 129 App. Div. 23, 113 N. Y. Supp. duress upon which can be based an 124; Lawyers' Title, etc., Co. v. action to recover back a sum there- Jones, 113 App. Div. 105, 98 N. Y. after voluntarily paid. McGuire & Supp. 871; Knee v. Yankee Waist Co. v. Vogel Co., 164 App. Div. 173, Co., 167 App. Div. 753, 153 N. Y. 149 N. Y. Supp. 756; Martin v. New Supp. 56; Kamonitsky v. Corcoran, RochelleWaterCo.,11 App. Div. 177, 177 App. Div. 605, reversing 97 42 N. Y. Supp. 893, aff'd 162 N. Y. Misc. 384, 161 N. Y. Supp. 756. 599; Abelman v. Indelli, etc., Co., 170 App. Div. 740, 156 N. Y. Supp. 401. Money Loaned, Paid, Had and Received 167 That prior to the times hereinafter mentioned the Company became the owner of a bond and mortgage cover- ing premises in the city of New York known as No. street. That thereafter the defendants herein, acting as attorneys for said Company, instituted an action to foreclose said mortgage, making the plaintiff in this action one of the defendants in that foreclosure action. That after the commencement of said action and during its pendency, the plaintiff notified the defendants that it would pay off the said mortgage, and that it wished to obtain a satisfaction piece, and the discontinuance of the foreclosure suit. That defendants appeared with said satisfaction piece and discontinuance at the closing of a new loan on the day of , 19 , from the proceeds of which loan said Company was to be paid the amount of its claim. That at said time of closing, the defendants herein, acting as such attorneys for the said Company, arbitrarily, unlaw- fully and illegally refused to deliver up the consent to dis- continue without first receiving from the plaintiff the sum of as costs and disbursements, and that therefore, under protest and duress, plaintiff paid this sum to defendants. That this sum of dollars was illegal, exorbitant, excessive and extortionate, and that the utmost amount of costs and disbursements which defendants were entitled to receive was less than the sum of dollars; that plaintiff has duly demanded the return of the amount in ex- ■ cess thereof, but that defendant has refused to repay the same. Wherefore [etc.]. 163. By Infant, to Recover Moneys Paid under Executory Contract. [Adapted from Rice v. Butler, 160 N. Y, 578.] I. [Allege plaintiff's infancy and appointment of guardian ad litem, as in Form 79.] 168 Abbott's Foems of Pleading II. That on or about the day of , 19 , at , plaintiff and defendant entered into an agree- ment whereby defendant agreed to sell plaintiff [a bicycle] for the sum of dollars, payable in installments of dollars per month, [title to remain in the defendant until said bicycle was fully paid for], and plaintiff agreed to buy said bicycle and pay said sum of dollars therefor. III. That plaintiff has elected to rescind said agreement and has so notified defendant and on the day of , 19 , returned said [bicycle] to defendant [or if not returned, allege: offered to return said bicycle to defendant but he refused to accept it]. IV. That plaintiff has paid to defendant imder said agree- ment the sum of dollars; that the reasonable value of the. use of said [bicycle] is the sum of dollars. Wherefore [etc., demand of judgment for balance]. 164. Complaint by Infant to Recover Money Invested in a Co-partnership. '"^ I. [Allege plaintiff's infancy and appointment of guardian ad litem as in Form 79.] II. That on or about the day of , 19 , the plaintiff at the instance and request of the defendant paid and advanced to said defendant, the sum of dollars, to be invested by said defendant, for their joint benefit in a [certain artistic decorating] business. III. That plaintiff has received no consideration for such advances, or any profits or returns from said business; and that said defendant has appropriated whatever profits if any have been realized therein. IV. That on or about the day of , 19 , plaintiff notified defendant that he rescinded his agreement 109 Adapted from the complaint, Pro., § 549, subd. 4, would bar a re- and its criticism by the court, in covery upon the complaint as it then Sparman v. Keim, 83 N. Y. 245. was framed, without proof of the Since the decision in that case, the fraud alleged, amendment made to N. Y. Code Civ. Money Loaned, Paid, Had and Received 169 to permit the investment of said sum, and demanded of de- fendant the repayment of said sum of dollars, but that no part thereof has been repaid. Wherefore [etc., demand of judgment]. 165. To Recover Money Paid to Defendant by an In- competent Person. [Sustained in Riggs v. American Tract Society, 84 N. Y. 330.] I. That on or about the day of , 19 , one M. N. was, and had been for more than years prior thereto, of unsound mind, and for that cause legally incapable of making the dispositions of his property to the defendant which are hereinafter set forth."" II. [Set forth the method whereby the money was paid to the defendant, as] That on or about said day of , 19 , said M. N. transferred to defendant the sum of dollars, which defendant received and invested or^used in and about its business and for its benefit; that said moneys were so transferred and received under an arrangement by which said M. N., being of unsound mind, as aforesaid, agreed to give, and did give, to the defendant such sum of money, and the defendant agreed to give, and did give, certain assurances in writing, obligating the defendant to pay the interest on said sum every six months to said M. N. during his lifetime, and thereafter to either the executor or administrator of said M. N. for the benefit of his wife, or directly to his wife, and to his sister M., for their benefit, during their lives respectively. III. [Allege plaintiff's appointment as committee of the in- competent, as in Form 87; or, the incompetent's death, and plaintiff's capacity as his administrator, as in Form 61.] iV. That on or about the day of , 19 , plaintiff found said written assurances among the papers of said M. N., [and thereupon obtained from the widow of said "" HeM, in the case above cited, a mental incapacity, as against de- suiBcient allegation of the fact of jnurrer. 170 Abbott's Forms of Pleading M. N. her consent, and the consent of said M. N.'s sister, that plaintiff might surrender said assurances to defendant;] that afterwards, and before the commencement of this ac- tion, plaintiff offered to surrender to defendant [the said consents duly acknowledged, together with] said assurances and all claims of plaintiff based upon them, and demanded the return of said dollars, all of which defendant refused. Wherefore [etc., demand of judgment for said sum]. 166. By or Against Corporation, for Money Paid Under Ultra Vires Contract.^" [Allege plaintiff's corporate capacity, as in Form 44, and its corporate objects as in Form 52,\ That at and on or about the day of ,19 , plaintiff and defendant entered into an agreement wherein and whereby [set forth enough of said agreement to show either that it was ultra vires as to all corpora- tions of plaintiff's character, or that it was beyond plaintiff's charter powers]. That said agreement was and is ultra vires, for the reason that [state reason briefly.] That pursuant to said agreement plaintiff paid to defend- ant on or about the day of , 19 , the sum of dollars. [// plaintiff has received any property from defendant:] That defendant has heretofore delivered to plaintiff under said agreement [state what]. That on or about the day of , 19 , plaintiff notified defendant that it would not continue per- formance of said agreement on the ground that the same was ultra vires, and offered to defendant to return said [property] and demanded of defendant the repajntnent of said "' See, generally, Guarantee Sav- ton Realty Inv. Co., 212 N. Y. 48, ings Loan v. Moore, 35 App. Div. 421, ' reversing 160 App. Div. 449, 145 54 N. Y. Supp. 787; Jacobs v. Mona- N. Y. Supp. 611. Money Loaned, Paid, Had and Received 171 sum of dollars, but defendant refused to accept said [property] or to repay said sum. Wherefore [etc.]. 167. By Tenant to Recover Amount Deposited as Security Upon Obtaining Lease."^ I. [Allege making of lease, as in complaints under Leases.] II. That at the time of the making of the said lease, plain- tifif deposited with the defendant the sum of dollars, as security for the payment of [the last two months' rent to accrue imder said lease] and for no other purpose. III. [If assignment of the lease and deposit was made] : That on or about the day of , 19 , said [lessee] sold, assigned and transferred to plaintiff the said lease, and all his right, title and interest therein, and also the said sum deposited as security as hereinbefore set forth, and all his right, title and interest therein and thereto, and all claim thereto which he then had or which might thereafter arise on account of said deposit. IV. [Allege termination of lease; if through summary pro- ceedings, allege;] That on or about the day of , 19 , defendant brought summary proceedings against plaintiff, and that on or about the day of , 19 , plaintiff was dispossessed under a warrant issued in said proceedings. V. That all the rent reserved under said lease was fully paid to defendant without the application of said sum so deposited as security, and that there is now due and owing from defendant to plaintiff the sum of dollars, being the amount so as aforesaid deposited as security, no part of which has been paid although payment thereof has been heretofore duly demanded. Wherefore [etc., demand for judgment]. "' Adapted from complaint in Mi- with, a breach of covenant is prop- chaels v. Fisher, 169 N. Y. 381, where erly pleaded as a defense and not as a recovery by plaintiff was sustained. the subject of a counterclaim. Schatt- Where the deposit is to be returned man v. Maze Realty Co., 150 App. jf the covenants have been complied Div. 559, 135 N. Y. Supp. 47. 172 Abbott's Forms of Pleading 168. For Repayment of Purchase Price of Article, Con- ditioned on the Same Proving Satisfactory. "^ I. That on or about the day of , 19 , the defendant was the owner of "a certain horse, which he was desirous of seUing to plaintiff. II. That it was thereupon agreed between the plaintiff and the defendant that the plaintiff should pay to the defendant the sum of dollars, and that the defendant should let the plaintiff have the said horse on trial for [two weeks], on the express agreement that if the plaintiff did not upon such trial like the said horse, and declined buying the same, he, the defendant, would take back the said horse, and would return the said sum of money to the plaintiff, when he, the plaintiff, should return and re-deliver the said horse to the defendant. III. That the plaintiff paid to the defendant the said sum of money, and received the said horse on the terms aforesaid. IV. That plaintiff- did not like the said horse on tr3dng the same, and declined to buy the same and so notified de- fendant on the day of ,19 , and has offered and now is ready and willing to return the same to the de- fendant. V. That within said period of [two weeks] and on or about the day of , 19 , plaintiff duly tendered delivery of the said horse to the defendant, and demanded the return to him of the said sum of dollars, but the defendant refused to receive back the said horse from the plaintiff, and refused to repay any part of the said sum of dollars to plaintiff. Wherefore [etc., demand of judgment]. 169. For Prepayment for Goods, which were not De- livered."* [Complaint sustained in Bier v. Bash, 107 App. Div. 429, 95 N. Y. Supp. 281, aff'd 186 N. Y. 565.] '" From Cornell v. Fox, 95 App. "^ The complaint need not refer Div. 71, 88 N. Y. Supp. 482. See, to the fact that the defendant has also, Harrison v. Scott, 203 N.Y. 369. deUvered an inferior quality of goods, Money Loaned, Paid, Had and Received 173 That on or about the day of , 19 , the defendant had and received from plaintiff the sum of dollars belonging to plaintiff, for which defendant promised and agreed to deliver to plaintiff on the day of , 19 , certain goods consisting of [describe goods]. That plaintiff paid said money to defendant on the ex- press promise and agreement of defendant that he would, for such payment, and on said day of , 19 , deliver to plaintiff the [goods] above mentioned. That plaintiff has heretofore demanded that defendant deliver to him the [goods] aforesaid, but that defendant re- fused and has continued to refuse to deliver the same; that plaintiff has demanded of defendant the return of said sum of dollars, but defendant has refused and continues to refuse to return said sum to plaintiff. Wherefore [etc., demand of judgment]. 170. For Advances on a Contract for Services, Unful- filled."^ I. That on or about the day of , 19 , at , the plaintiff entered into an agreement with the defendant, whereby the defendant undertook to render services to the plaintiff as , for the term of , in consideration of the sum of dollars [weekly] agreed by plaintiff to be paid therefor, [in weekly installments at the end of each week of service]. II. That on or about the day of , 19 , plaintiff prepaid to the defendant, at his request, on account of services to be by him thereafter rendered in pursuance of said agreement, the sum of dollars. III. That the defendant has wholly neglected and refused to render said services since said day of , 19 , although plaintiff has been ready to receive the same, and that no part of said sum of dollars has been repaid to plaintiff."^ ^ which he refuses to take back and "* See Libman v. Cohen, 69 Misc. which the plaintiff has refused to ac- 312, 125 N. Y. Supp. 488. cept. Bier v. Bash, supra. "• Demand not necessary, if neg- 174 Abbott's Forms op Pleading Wherefore [etc., demand of judgment, with interest from date of defendant's breach]. 171. For Repayment of Earnest Money Paid on a Contract for the Purchase of Real Estate ; Failure of Vendor to Tender Deed."' I. That on or about the day of , 19 , at , the defendant and the plaintiff entered into a con- tract in writing subscribed by the defendant,"^ whereby it was mutually agreed that the said defendant should sell to this plaintiff "^ certain real estate, to wit, [describing it], and that plaintiff should buy the same and pay therefor the sum of dollars [and execute and deUver to defendant a purchase money mortgage for dollars]; that the defendant should give a good title in fee simple to said premises free from all incumbrances, and should deUver a good and sufficient deed thereof on the day of ,19 , at o'clock on said day at No. street, in the city of , and that the plaintiff should thereupon pay to the said defendant the aforesaid sum i^" lect amounts to a breach. Raymond "' The allegation of a writing antl V. Bearnard, 12 Johns. (N. Y.) 274. of defendant's. subscription would be '" If the sale was at auction, an unnecessary in most jurisdictions, action for money had and received because the contract would be pre- may be maintained by the purchaser sumed in writing as against de- against either the vendor, or the murrer. Under a parol contract, the auctioneer, or both, for money de- action to recover back the deposit lies posited by him according to the only after defendant's refusal to com- terms of sale, with interest from the plete. Venable v. -Brown, 31 Ark. time of his demand, upon failure to 564; Sennett v. Shehan (Minn.), receive a perfect title as agreed. 11 N. W. Reporter, 401; Abbott v. Cockcroft V. Muller, 71 N. Y. 367; Draper, 4 Den. (N. Y.) 51; contra, see, also, 21 Moak's Eng. 790, citing Tucker v. Groves (Wise), 19 Northw. other cases; Heatley v. Newton, 45 Rep. 93. L. T. N. S. 455. Against the aue- "' It is immaterial under such cir- tioneer even, it has been held, after cumstances that the moneys were payment of such deposit to principal, furnished by another person. See Gray v. Gutteridge, 1 M. & %. 614. Osborne v. Hughes, 128 App. Div. The common-law form of declara- 128, 112 N. Y. Supp. 572. tion (Form 143) is insufficient under '™ The covenants are interdepend- code procedure. Distler v. Dabney, 3 ent and concurrent. Jones v. Gar- Wash. St. 200, 28 Pac. Rep. 335. diner, 10 Johns. (N. Y.) 266; Morris Money Loaned, Paid, Had and Received 175 [and execute and deliver said mortgage, or, set out copy of the agreement as in Form 173]. II. That the plaintiff then and there gave to said defend- ant the suna of dollars as and for a part of the said purchase money, to be retained by defendant on a,ccount of the purchase money, if the plaintiff should complete his pur- chase and receive the deed, but to be to and for the use of this plaintiff, and to be returned to him, if the defendant should fail to fulfill his agreement, and fail to give a good and sufficient deed at the time and pursuant to the said agreement. III. That plaintiff has always been ready and willing to do .and perform everything in the agreement contained on his part, and on the said day of , 19 , at the time and place therein specified, was ready and willing, and duly offered to the defendant, to accept and take from him the deed of the premises in fee simple, pursuant to the agreement, [and to duly execute and deliver said mortgage] and to pay the balance of the purchase price thereunder [and demanded said deed, and tendered to him the — said mort- gage and — ^balance of the purchase money due therefor].^" IV. That the defendant on said day of , 19 , refused to give, and he has not at any other time what- V. Sliter, 1 Den. (N. Y.) 59. New Where the covenants are depend- York Code Civil Procedure, §533, ent, the purehaser is not bound to providing a short method of plead- make an absolute tender of perform- ing performance of a condition ance. An offer to perform, condi- precedent, does not, therefore, apply, tioned on the defendant's performing, and the common-law rule, that exact is sufficient. Robb v. Montgom- compliance must be specifically ery, 20 Johns. (N. Y.) 15; Raw- shown, must be followed. son v. Johnson, 1 East, 203; Watter- '^' It is necessary for the plaintiff to house v. Skinner, 2 Bos. & P. 447; aver that he was ready and willing to Wilhelm v. Temple, 31 Iowa, 131 ; fulfill at the time and place ap- Morange v. Morris, 3 Abb. Ct. App. pointed, whether the other party was Dec. (N. Y.) 314; Hartley v. James, ready or not. Ziehen v. Smith, 148 50 N. Y. 38. N. Y. 558. Unless excused by reason But the offer to perform is neces- of an anticipatory refusal commu- sary. An averment of mere readiness nicated to him. (See post, Chapter is insufficient. Lester v. Jewett, 11 29, under Breach of Contract for N. Y. 453; Englander v. Rogers, 41 Sale of Realty.) Cal. 420, and see cases supra. 176 Abbott's Fokms of Pleading . soever, given the plaintiff a deed of the premises pursuant to the agreement, but has refused so to do [or, but has wholly failed so to do, although the plaintiff waited a reasonable time, to wit, days after said , and then offered to receive such deed]."- V. [// expenses of examining title are claimed allege them as in Forms in Chapter 29, under Actions for Damages for Breach of Contract far Sale of Real Estate.] "^ VI. That on or about the day of , 19 , plaintiff duly notified defendant that he rescinded said agree- ment of sale, and demanded "* of the said defendant that "2 Upon failure by the vendor to be ready with the deed, and convey a good title on the day specified, the vendee may rescind the contract and recover back the deposit. A demand of the deposit is a rescission. Domi- nick V. Michael, 4 Sandf. (N. Y.) 426. Applying the equitable principles upon which this action rests, many cases hold that between vendor and purchaser a mere demand of a con- veyance is not enough; where time is not shown to be of the essence of the contract, the purchaser must wait a reasonable time for its preparation and execution, and then offer to re- ceive it. Campbell v. Prague, 6 App. Div. 554, 39 N. Y. Supp. 558, and cases cited; Fuller v. Hubbard, 6 Cow. (N. Y.) 13; Hackett v. Huson, 3 Wend. (N. Y.) 249; Connelly v. Pierce, 7 id. 128; Foote v. West, 1 Den. (N. Y.) 544; Lutweller v. Lin- nell, 12 Barb. (N. Y.) 512; contra, Carpenter v. Brown, 6 id. 147; Flynn V. McKeon, 6 Duer (N. Y.), 203; Driggs V. Dwight, 17 Wend. (N. Y.) 71. If the time for performance has been indefinitely extended, it is neces- sary for the vendee, before electing to rescind, to give the vendor notice and a reasonable time within which to perform; so an allegation of an in- definite extension of time must be followed by an allegation of notice and lapse of a reasonable time. See Darrow v. Cornell, 30 App. Div. 115, 51 N. Y. Supp. 828. "' There may be difference of opinion as to whether the claim for moneys paid to defendant as part of the price, and moneys paid in ex- penses for examining the title are separate causes of action, the one on an implied promise resulting from rescission, the other as damages caused by breach. Under code pro- cedure the better opinion is that both are to be treated as items of special damage in a cause of action on the breach of the contract. Place V. Dudley, 41 App. Div. 540, 58 N. Y. Supp. 671. "* The plaintiff is entitled to re- cover interest from the time of his demand for repayment. Cockroft v. Muller, 71 N. Y. 367; Farquhar v. Farley, 7 Taunt. 592. He may also recover as special damages for the defendant's breach of contract, ex- penses of examination of title (see note 123, and Jones v. Littledale, 6 Ad. & E. 486; Hodges v. Littlefield, 1 Bing. 492); interest on money be- longing to the plaintiff and kept by Money Loaned, Paid, Had and Received 177 he pay to the plaintiff the sum of dollars so de- posited with him and said sum of dollars for ex- penses incurred; but that no part of the same has been paid. Wherefore [etc., demand of judgment]. ^-^ 172. The Same, Where Deed was Rejected on Ground of Unmarketable Title, i^e [I, II, III, as in preceding form.] IV. That thereupon defendant tendered to plaintiff a deed of said premises, which plaintiff declined to accept because said deed would not and did not then and there convey to plaintiff the title to said premises in fee simple, as by said agreement provided, for the following reasons: [set forth briefly each reason for asserting that the title was defective].'^^'' him lying idle, ready to complete the purchase was allowed in Sherry v. Oke, 3 Dowl. Pr. C. 349. But such damages must be specially pleaded. ^^ This form of action is based upon a rescission; plaintiff cannot, therefore, assert a vendee's lien on the property, which is a right under the contract of purchase. Davis v. Rosenweig Realty Co., 192 N. Y. 128; Elterman v. Hyman, 192 N. Y: 113. The demand for judgment must be simply for the money deposited. See notes to Form 692. 1^ Consult notes to the preceding form. Where, on an executory contract for sale of lands, the purchaser re- fuses to accept deed because of de- fect in title and demands repajTnent of money paid by him thereon, and the vendor does nothing to ascer- tain or cure defects, but simply keeps in readiness to give such title as he can, the purchaser is not called upon to make tender in order to recover back pa3rment3. Brokaw v. Duffy, 165 N. Y. 391; Hartley v. James, 50 N. Y. 38. Whether the Municipal Court of New York City may entertain this action, see Heifeman v. Scholder, 134 App. Div. 579, 119 N. Y. Supp. 520. '" Of co.urse plaintiff may only recover on proof that the title was unmarketable. Steinhardt v. Baker, 163 N. Y. 410. If, however, the agreement pro- vides that the title should be such that a specified title company would approve and insure it, the fact that the company will not insure or ap- prove will support the action; the defendant cannot be heard as to whether the refusal was unreason- able. Allen V. McKeon, 127 App. Div. 277, 111 N. Y. Supp. 328; Bein- hauer v. Morris, 142 App. Div. 398, 126 N. Y. Supp. 511. Each reason for the rejection should be alleged. Rosenberg v. Fiermg, 121 App. Div. 190, 105 N. Y. Supp. 812. It may be directly averred that defendant did not have title to the heus in quo, and that the ownership was in another. See Schoefer v. 178 Abbott's Forms of Pleading V and VI. [As in preceding form.] Wherefore [etc., demand of judgment].^^ 173. To Recover Amount Paid on Contract for Sale of Realty, with Allegation of Fraud in Inducing Plaintiff to Make Contract. [Adapted from Freer v. Denton, 61 N. Y. 492.] i^' I. That plaintiff and defendant entered into a contract on or about the day of the date thereof, in the words and figures following, to wit: [Here was set forth in extensu a con- tract for the sale and conveyance by the defendant, to the plain- tiff, of a specified farm described as "including the A. S. lot,"] $800 to be paid on or before ,19 , and the balance of the price on or before ,19 , deed to be given on receiving such payment. II. That to induce the plaintiff to enter into said contract the defendant falsely and fraudulently, prior to the making of said contract, represented to the plaintiff that he was the owner of or authorized to sell the premises which in said contract are called the A. S. lot, and which said lot contained about [seventy-five] acres. i^° III. That the plaintiff relied on said representations and believed them to be true, and was thereby induced to enter into and execute said contract and to pay to the said defend- ant the fiirst installment mentioned in said agreement, to wit, the sum of $800, which was made ,19 . IV. That at the time when the said defendant made the said representation, and at the time when he received from the said plaintiff the said sum of $800, the defendant well Hilliker, 140 App. Div. 173, 124 cover; but the court would have N. Y. Supp. 1014, aff'd 206 N. Y. power to aUow the aUegations of fraud 708. to be stricken out, as surplusage, if '28 See note 125 to preceding form, no remedy of arrest had been ob- '2' The ruling in this case, that tained because of their presence in plaintiff could recover without prov- the' complaint, ing the fraud, has been superseded by "» See as to representations held N. Y. Code Civ. Pro., § 549. Under material in a similar action in Kres- the present statute plaintiff must hover v. Berger, 135 App. Div. 27, establish the fraud in order to re- 119 N. Y. Supp. 737. Money Loaned, Paid, Had and Received 179 knew that the representations which he had made to the plaintiff in regard to the said A. S. lot were false, said de- fendant not being then the owner, nor authorized to con- tract to sell the same^ nor has he ever been such owner, nor authorized to contract for the sale thereof; that such repre- sentations were made with intent to cheat and defraud the plaintiff. V. That said defendant has never carried out the said con- tract or been able to do so, but has expressly refused to carry out the same, and jGbaally notified the plaintiff prior to the commencement of this action that he (said defendant) would neither carry out said contract nor repay to the said plaintiff the said smn of $800 or any part thereof. VI. That on or about the day of , 19 , plaintiff duly notified defendant that he rescinded said con- tract,^" and demanded of defendant that he repay to plain- tiff the said sum of $800. "^ Wheeefore [etc., demand of judgment].''^^^ « 174. Against one to whom Plaintiff Conveys his Real Property under an Agreement to Sell and Pay Pro- ceeds to Plaintiff."^ [Complaint sustained in Harris v. Clark, 94 Iowa, 327, 62 N. W. Rep. 834.] That the defendant is indebted to plaintiff in the sum of dollars, [held by him in trust for plaintiff], that being the amount realized from the sale of the real estate hereinafter described, which said amount defendant at va- rious times after the receipt of the same agreed to pay to plaintiff. >'i Hedges v. Pioneer Iron Works, and counterclaims for specific per- 166 App. Div. 208, 151 N. Y. Supp. formance, the common-law issue 495. should first be tried. Epstein v. •'2 Ip order to show that the action Rockville Centre Imp. Co., 164 is brought for money had and re- App. Div. 177, 149 N. Y. Supp. ceived, the amount and interest 638. should be demanded, not a sum by ''* The court held that the promise way of damages. to pay finds sufficient consideration "' If defendant denies, the fraud, in the existence of the alleged trust. 180 Abbott's Forms of Pleading That said indebtedness arose as follows: Plaintiff did on or about the day of , 19 , convey to said defendant, by warranty deed, the following described prem- ises of the plaintiff, to wit: [description] that the only con- sideration for said transfer was that said defendant agreed to sell the same and turn over to plaintiff the net proceeds arising from the sale thereof. That on or about the day of , 19 , the said defendant sold said prem- ises, receiving therefor, above all liens and incumbrances, the sum of dollars, which he now holds and refuses to pay to plaintiff, or any part thereof. Wherefore [etc., demand of judgment]. 175. To Recover Money Paid under Void Assessment, Where the Assessment has been Vacated.''^ I. [Allege defendant's corporate character as in Form 55.] II. That heretofore and prior to the day of , 19 , the plaintiff was the owner and seized in fee of a cer- tain lot of land situate [etc., describing it]. ' III. That during the year 19 , the defendant, by its officers, trustees and agents, under pretense of effecting certain local improvements in said [village], undertook and entered upon a proceeding for the alleged purpose of grading and regulating two certain proposed avenues in said village, called and known respectively as avenue and avenue, and of assessing the cost and expenses of such grading and regulating upon the lands adjacent thereto, pursuant to and as provided by statute. "* This complaint was sustained The cause of action is for money against demurrer in Bruecher v. Vil- received; a statute imposing the lage of Portchester, 101 N. Y. 240, duty of repayment whenever an 17 Abb. N. C. 361, 4 N. E. Rep. 272, assessment has been annulled {mde, 3 East. Rep. 737, where it was held N. Y. Gen. Munic. Law, § 84) is that no demand was necessary, nor merely declaratory of the existing was it necessary that the assessment rule of law. Dennison v. City of should be first vacated or annulled, N. Y., 182 N. Y. 24. The payment as where the assessment was merely is made under duress. Second Nat. irregular, informal, or unjust, and Bank v. City of N. Y., 213 N. Y. not, as here, utterly illegal and void. 457. Money Loaned, Paid, Had and Received 181 IV. That such proceedings were had in pursuance and under color of the provisions of the said statute, commonly known as the charter of said village, comprising chapter of the Laws of , and the statutes amendatory thereof, that the plaintiff's said premises were assessed for the alleged purpose aforesaid, in the sum of dollars, for grading and regulating said avenue, called avenue, and the further sum of dollars for grading and regulating said avenue called avenue. V. That the said proceedings were prosecuted under color of but in violation of said statutes and in disregard of these provisions, to wit, among other things, in this -..[briefly setting forth alleged violations in procedure, as]; that the commis- sioners of estimate and assessment, appointed under the said acts so known as the charter of said village, as aforesaid, to apportion and assess the expenses of grading and regula- tion of said proposed avenues upon the adjacent premises, did not take the oath required by said statute to be taken, nor did said commissioners, after making their estimates and assessments, publish a notice of the time and place, when and where, interested parties could be heard in manner and form as required by said charter and statutes, ''" whereby and by means of such omission the report of said commissioners and the confirmation thereof, and the said assessment upon said premises were illegal and wholly void in law. VI. That on the day of in the year of 19 , a warrant was issued for the collection of the said as- sessment upon said premises, so as aforesaid, belonging to the plaintiff, and the interest and other expenses incidental thereto, amounting in all to the sum of dollars, and that the said defendant threatened to sell and was about to sell said premises for the payment of said assessment. VII. That thereupon th& plaintiff [having before that time sold said premises, and being under contract to convey the same free from all incumbrances, was unable to do so '" See Second Nat. Bank v. City of N. Y., supra. 182 Abbott's Forms of Pleading while the same were so clouded and incumbered by said charge and assessment, and apparent lien, and while the same remained so, a cloud upon said premises], was com- pelled, [in order to complete the conveyance of said prem- ises], to pay, and did pay, to the treasurer of said village, and into the treasury thereof, the said sum of dol- lars, under protest, nevertheless, and the sum was received by said treasurer and into said treasury, as so paid under protest, [to wit: That the said assessment was utterly void and of no effect, and that all the rights of the plaintiff should be and remain reserved to him, and in no way waived, fore- gone or pretermitted by such payment]. VIII. That the defendant is estopped to deny the allega- tions herein contained, or to deny that the said assessment was utterly void in law, because since the payment of said assessment as aforesaid by the plaintiff, the defendant was impleaded by one M. N., and others, in an action presenting the same identical issues and question presented in this action', to wit: Heretofore, and in the year 19 , the said M. N. and others, owning lots in said village adjacent to the said proposed avenues, and assessed mider and in virtue of said proceedings, brought an action in the Court to restrain the defendant from selling the land owned by them, the said M. N. and others, so in the said village of , under and in virtue of the same identical proceedings herein above set forth and referred to, and to enjoin and perpetually restrain the said defendant from proceeding further under said proceedings to assess the said adjacent lands, upon the ground that said assessment was utterly void, for the reason and upon the ground above set forth and referred to; that the defendant took issue by answer upon said allegations in said action, and that such proceedings were afterwards had in such action in said court, that the same was brought to trial upon the merits, and a judgment was duly entered in said action that the said assessment and all proceedings on the part of said defendant had for the purpose of so assessing said premises and levying assessments thereon were illegal, Money Loaned, Paid, Had and Received 183 void in law and of no eifect, whereby the identical point, question and issue presented in this action was heard and duly determined by a court, having full jurisdiction to hear and determine the same, which said judgment still remains in full force and virtue, as by reference to the judgment roll therein will more fully appear. IX. [Allege presentation of claim as in Form 58.] Wherefoee [etc., demand of judgment]. 176. The Same, where the Assessment was Regular on Its Face.i" I. [Allege incorporation as in Form 55.] II. [Allege title as in Form 175.] III. That on or about the day of , 19 , the board of revision and correction of assessments, by virtue of the powers vested in them by law, confirmed a certain assessment for regulating and paving street from to streets, and an assessment amoimting to the sum of dollars or thereabouts was thereby imposed upon the lands situated within the area of said assessment, including the above described lots, upon which lots an assessment of dollars was thereby imposed. IV. That said proceedings of said board of revision and correction of assessments of the city of , and the said assessment, were apparently within the powers of said board, and said assessment was valid on its face, and con- stituted an apparent lien on said lots, but the same was actually illegal and void by reason of certain defects herein- after named, all of which are dehors the record, and plaintiff was entirely ignorant of the same, nor could he have obtained knowledge thereof by an inspection of the assessment roll, or the papers thereto attached. V. That the said assessment was illegal and void for the following reasons: [set forth illegality as] "' Complaint and action sustained portion of the claimed irregularities in Jex V. City of N. Y., 103 N. Y. are presented in the form. 533, 4 Centr. Rep. 781, but only a 184 ABBotT's Forms of Pleading (1) That, as the plaintiff is informed and beheves, such improvement for which this assessment was laid was a re- pavement of this street, and was never petitioned for by a majority of the owners of the property (who were also the owners of a majority of the front feet) on the Une of the proposed improvement, as required by the Laws of the State of , and by [recite year, chapter and section of law regulating the public improvement in question], and the acts amendatory thereto. That, as plaintiff is informed and believes, by the fraud and conspiracy of some persons, to them unknown, certain papers were presented to the said mayor and aldermen purporting to be such a petition; but that such papers were a fraud and a cheat, and not the genuine petition of a majority of such property owners as required by said laws. (2) Plaintiff further alleges, upon information and behef, that the said improvement involved the expenditure of more than [$150,000]; that said work was not ordered by a vote of [three-fourths] of the members elected to the common coimcil to be done only by contract founded on sealed bills or proposals made in compliance with public notice duly advertised, as provided by the laws of the State of , and by section of the chapter of those laws before cited; but that the contract for the said work was fraudulently, illegally and unlawfully let by the said commissioner of pubUc works at excessive prices without any pubUc notice by advertisement in any paper whatever, and without any public competition or opportunity for the public to know anything about it, or for anyone but the personal friends of said commissioner to bid for said work; by reason whereof the expense of said work was largely increased. VI. That on or about the day of , 19 , plaintiff, who was then wholly ignorant of the facts set out in the last preceding paragraph of the complaint,"^ was re- "' Plaintiff cannot recover if, with pays the amount. Haven v. Mayor, knowledge of the facts rendering the 67 App. Div. 90, 73 N. Y. Supp. 678, assessment void and without duress aff'd 173 N. Y. 611. in fact, though under protest, he ^ Money Loaned, Paid, Had and Received 185 quired to pay, and did pay, under coercion of law and mistake of fact, the assessment upon the aforesaid lots, amounting to dollars, with the interest demanded, amounting to dollars, making in all the sum of dollars, and that the defendant now has said money in its possession. VII. [Allege presentation of claim as in Form 58.] Wherefore, plaintiff demands judgment against the de- fendant [that the said assessment be declared invalid and] for the sum of dollars, with interest from the day of , 19 , besides the costs and disbursements of this action. 177. To Recover from City Amount Paid for Tax Cer- tificates which were Invalid because of Defect in the Assessment. [Complaint sustained in Breevort v. City of Brooklyn, 89 N. Y. 128.] I. That on the and days of , 19 , at public auction held by the collector of taxes and assessments, for the city of , for the sale o^f property for unpaid taxes, pursuant to Chapter of the Laws of 19 , entitled "An act" [etc., giving title], passed ,19 , and the acts amendatory thereof, plaintiff purchased a lot of land assessed for the taxes of 19 , known by the number of , on the register of tax sales, liber , for the term of 100 years, for which he paid the sum of dol- lars, [specify any other purchase at same tim£], amounting to- gether to the sum of dollars, it being then and there expressly agreed by the defendant with the plaintiff that if there were any irregularity in the proceedings prior to the said sale, the said purchase money should be repaid to the plaintiff, provided the certificates which were then and there delivered to the plaintiff and indorsed as aforesaid, be sur- rendered to the collector. That the taxes assessed on the said lots for the year 19 are void because [the assessment roll for that year upon which the said lots were assessed, being the assessment roll of the 186 Abbott's Forms of Pleading ninth ward, at the time it was delivered to the board of super- visors was not sworn to or verified, nor was it at any time sworn to and verified by any of the assessors, otherwise than according to the oath inscribed upon the said roll, a copy of which is hereunto annexed and marked Schedule A]. Nevertheless the board of supervisors did [pursuant to a resolution adopted on the day of , 19 ], take charge of said roll, and by resolution adopted on the day of , 19 > approved the said roll, and by a resolution adopted on the day of , 19 , directed the taxes for which said lots were sold to be appor- tioned upon said lots, and by resolution adopted on the day of , 19 , approved the said roll with the taxes apportioned therein, including the taxes for which said lots were sold respectively. Plaintiff is informed and beUeves, and alleges, that inas- much as said assessment roll was only verified and sworn to in manner and form aforesaid, the said board of supervisors - had no jurisdiction to tax the said lots or either of them, and that the taxes for which the said lots were sold are void. That plaintiff on the day of , 19 , tendered the certificates to the register of arrears in the city of , and offered to surrender the same, and on the same day made the same tender and offer to the collector of taxes and as- sessments of said city, and to the comptroller of said city; that said register, collector and comptroller each refused the said tender and offer, and now the plaintiff brings the said certificates into court and offers to surrender the same to the defendant. [Allege presentation of claim as in Form 58.] Wherefore [etc., demand of judgment], 178. To Recover Money Involuntarily Paid, in Satisfaction of Taxes Levied on Personal Property. ^'^ I. [Allege incorporation of defendant as in Form 55.] "' Action sustained on this com- N. Y. 331. See a later decision ap- plaint in jEtna Ins. Co. v. Mayor, 153 plying the same statute fixing a tax Money Loaned, Paid, Had and Received 187 II. That, on the [second Monday of January], 19 , this plaintiff was the owner and holder of the numbers of shares of stock of the several banks and banking associations duly organized under the laws of the United States and of the State of New York, located in the city of New York, set forth respectively in the first and second columns of the schedule or bill of particulars hereto annexed, and marked "Schedule A." III. That on or about the day of , 19 , the defendant claimed and pretended that it had duly im- posed upon the said respective shares of bank stock owned by this plaintiff in the said several and respective banks a valid tax for the amounts set forth in the third column of said Schedule A against said banks respectively, and that the amount of such tax severally was and constituted a valid lien upon said respective shares of stock owned by this plaintiff, and a personal liability against this plaintiff, which the defendant could enforce against the plaintiff, and that by the laws of the State of New York the duty was imposed upon each of the said respective banks and its ofiicers to retain so much of any dividend or dividends belonging to this plaintiff as should be necessary to pay the amount of said tax upon the plaintiff's said shares in said bank, until it should be made to appear to such oflScers that such tax had been paid. IV. That upon such claim and pretense, the defendant il- legally and wrongfully exacted and collected from each of said respective banks, as such alleged tax upon this plaintiff's bank shares, without the knowledge, direction or consent of the plaintiff, and under compulsion, on or about the days on bank shares, in Second Nat. sary that the assessment be first set Bank v. City of N. Y., 213 N. Y. aside or vacated. 457. See, also, Form 175. Reimbursement of taxes illegally The payment, as here alleged, was collected is provided for by statute held involuntary within the rule. No {tnde, Gen. Munic. Law, § 84, Adams demand need be made prior to com- v. Supervisors, 154 N. Y. 617), but mencement of action, nor is it neces- the relief by this action remains un- impaired. 188 Abbott's Forms of Pleading and dates set forth in the fourth column of said Schedule A, the amounts as set forth in the third column of said schedule, which moneys were wrongfully deducted out of the money in the possession of said bank belonging to this plaintiff against plaintiff's will and without plaintiff's consent or knowledge, and have been received and retained by the de- fendant without right, and said defendant has refused, and still refuses, to pay the same, or any part thereof, to this plaintiff, and the said defendant now holds to the use of this plaintiff the sum of dollars, with interest on the several sums set forth in the third column of Schedule A from the dates set forth in the fourth column of Schedule A. V. That the pretended assessment and levy and collection of said pretended tax, and each and every of them set forth in Schedule A, and all the proceedings taken by the defend- ant and its officers and representatives in connection there- with, were and are illegal and void and without jurisdiction, and in violation of the plaintiff's rights in the premises, be- cause this plaintiff's said bank shares were, and each of them was, by the laws of the United States and of the State of New York, exempt from taxation, and especially that the plaintiff was, at the times herein mentioned, exempted from taxation on its bank shares by virtue of chapter of the Laws of 19 of the State of New York. VI. [When any statutory conditions precedent exist, allege _ them as in Form 58.] Wherefore [etc., demand of judgment]. 179. By Pledgor of Collateral, against the Pledgee, to Recover Excess Received Over the Amoimt of the Debt. I. That on or about the day of , 19 , at , the plamtiff -delivered [or, indorsed and delivered, if a note was transferred by indorsefnent] to said defendant, as collateral security for the payment of the sum of dollars, then loaned plaintiff by defendant, [describe collateral, as] a promissory note made by one M. N. [payable to the Money Loaned, Paid, Had and Received 189 order of the plaintiff j for dollars, bearing date on the day of > 19 , and payable at months after date. II. That at its maturity the said note was collected by the defendant, and the sum of dollars received by him thereupon. III. That after payment of said indebtedness of dollars from plaintiff, together with all accrued interest therein, there remained in the hands of the defendant a balance of dollars, belonging to this plaintiff; pay- ment of which the plaintiff demanded of the defendant on or about the day of j 19 , but no part thereof has been paid. Wherefore [etc., demand of judgment], 180. The Same; by Assignees of a Pledgor, against his Pledgees of a Mortgage as Collateral to Notes on which he was Jointly Liable, the Mortgage Having since been Collected by the Pledgees, to Recover its Excess over the Amount of the Notes, and to have the Notes Delivered up."" I. That, as plaintiffs are informed and beUeve, on or about the day of , 19 , S. W. B. [plaintiff's as- signor] assigned and delivered to the defendants a bond and mortgage executed by one B. P. C, bearing date , on which there was due, or to become due, and unpaid, the sum of , besides interest thereon, which said bond and mortgage were delivered to defendants, to be held by the said defendants as collateral security for the payment of dollars then due them from said S. W. B., as speci- fied in a receipt for the same, then delivered by said defend- ants to the said S. W. B., of which the following is a copy [setting it ovt]: ^*^ '*'This is, in substance, the com- "'A better mode of pleading the plaint in Cahom v. Bank of Utica, debt would be to describe the notes 7 N. Y. 486. It states but a single very concisely, without setting out cause of action. the receipt. 190 Abbott's Forms of Pleading H. That, as plaintiffs are informed and believe, the notes of said B. & R., mentioned and referred to in said receipt, were as follows [describing them]: and that there were"Iio other notes of said B., or of B. & R., indorsed by said C, then in said bank; nor has there been since any other such notes as the notes described in said receipt, except the three notes above specified. III. That on or about the day of , 19 , the said S. W. B., by an instrument in writing, imder his hand and seal, assigned and transferred to the plaintiffs all his goods, chattels, demands, property and personal estate of every name and nature. IV. That, as plaintiffs are informed and believe, on or about the day of , 19 , the full amount of said bond and mortgage due, or to become due thereon, with interest, was paid to the defendants; that the said bond and mortgage were given up and canceled, and that thereupon, by the application of the moneys secm-ed in said mortgage and so paid to the defendants, the said notes were fully paid and satisfied. That the amount so paid on the bond and mortgage was greater than the whole amount due and se- cured by the said notes, so that there remained a balance, after paying and satisfying said notes, of about dol- lars; by means whereof the plaintiffs became entitled to the possession of said notes, and to have the balance of said moneys paid over to them as the assignees of said S. W. B. V. That on or about the day of , 19 , the plaintiffs requested the defendants to account for and pay over to them the balance aforesaid, after deducting the amount due on said notes, and to deliver to them the said notes; but the said defendants have failed and refused so to do. VI. That the said bond and mortgage were the sole and individual property of said S. W. B., and that the said notes of B. & R. were and are due from a mercantile firm which formerly existed, composed of said S. W. B. and one W. R., who has since died, to be paid by them equally, and that Money Loaned, Paid, Had and Received 191 the said notes are now the property of and belong to. the plaintiffs as such assignees. Wherefoee, plaintiffs demand judgment against the de- fendants for dollars, with interest from ; and that the defendants be required to deliver to the plain- tiffs the notes for the payment of which said bond and mort- gage were hypothecated, together with such other and fur- ther relief as may be just. 181. To Recover Fees Collected by Public Officer, not Paid over According to Statutory Direction. [Sustained in Town of Green Island v. Williams, 79 App. Div. 260, 79 N. Y. Supp. 791.] I. [7/ brought by a municipal corporation, allege as in Form 55.] II. That the defendant between the day of , 19 , and the day of , 19 , was [one of the justices of the peace of said plaintiff, having criminal jurisdiction in said town, and having power to impose fines upon persons convicted before him]. III. That ^y [§ 726 of the Code of Criminal Procedure] "^ said defendant was required to pay to the Supervisor of said plaintiff any and all fines received by him as such justice w^ithin thirty days after the receipt of the same, and that upon his failure so to do such fines could be recovered in an action brought by plaintiff. IV. That defendant has failed to pay over to said super- visor fines imposed by him amounting to dollars, although more than thirty days have elapsed since said fines so imposed were paid to and received by him."' Wherefore [etc., demand of judgment]. "2 No reference need be made to '" An allegation that defendant a public statute; if, however, the wrongfully converted the money is direction were contained in a private omitted, ag unnecessary and im- statute, like a village charter, it proper; the court treated it as sur- should be referred to. See forms for plusage. pleading a private statute. 192 Abbott's Forms of Pleading ^ 182. To Recover Fees of Usurped Public Office."* I. That on or about the day of , 19 , plaintiff was duly appointed by , to fill the office of , and thereupon took the official oath, and made and executed the official bond required by law, which bond was duly approved by ; whereby plaintiff became en- titled to hold said office and receive the fees, emoluments and commissions appertaining thereto. II. That at said time defendant was in possession of said office; that plaintiff thereupon gave defendant notice of his appointment and qualification as aforesaid, and demanded of him to relinquish said office to plaintiff, and deUver to him the books and papers belonging to the same, all of which defendant refused to do, but unlawfully, and without right, continued to fill said office, and perform the functions thereof, and to receive the emoluments, fees, and commissions thereof, from said date until about the day of , 19 . III. That defendant, while so unlawfully usurping and performing the functions of said office, collected and re- ceived, as plaintiff is informed and believes, as the emolu- ments, fees, and commissions thereof, the sum of dollars, which rightfully befong to plaintiff, no part of which has been paid to plaintiff although plaintiff has heretofore demanded payment thereof. Wherefore [etc., demand of judgment], 183. Against one who Receives Funds with Knowledge or Notice of Misappropriation. [Complaint sustained in Davenport v. Walker, 132 App. Div. 96, 116 N. Y. Supp. 411.] [Allege corporate capacity of any party.] I. That at all the times hereinafter mentioned one M. N. was the [cashier of the plaintiff bank]. II. That on or about tl;e day of , 19 , 1" Adapted from complaint in Piatt v. Stout, 14 Abb. Pr. (N. Y.) 17§. Money Loaned, Paid, Had and Received 193 said M. N. was indebted to the defendant in the sum of about dollars, by reason of the prior purchase by the defendant for the account of said M. N. of certain bonds and stocks. III. That on or about said day said M. N. drew a cashier's check upon the plaintiff bank for the sum of dollars, and delivered it to defendant, who received it in part pay- ment of said indebtedness; that thereafter said check was duly paid out of the funds of the plaintiff bank to said de- fendant [through the New York Clearing House]. IV. That by means of said cashier's check and its said payment, said M. N. withdrew from the plaintiff bank the said sum of dollars of its funds, and applied the same in part payment of his personal indebtedness to de- fendant as aforesaid, and that the defendant accepted and received said check and said sum with notice and knowledge that said fimds by which said check was to be paid and was paid were the funds of the plaintiff bank. Wherefore [etc., demand of judgment]. 184. To Recover Plaintiff's Money Paid to Defendant, Under Circumstances Putting Defendant on Inquiry, [Sustained in E. Moch Co. v. Security Bank, 166 App. Div. 121, 151 N. Y. Supp. 756.] ^'' [After alleging incorporation of both parties.] I. That on or about , 19 , one M. N. for a val- uable consideration sent to the plaintiff his check on the Bank of , payable- to the order of the plaintiff, for the sum of dollars. II. That on or about ,19 , A. B., who at said time was the president of the plaintiff, said A. B. Company, received said check and indorsed thereon "A. B. Company" "5 See also 176 App. Div. 842, 453; First Nat. Bank v. Nat. Broad- 163 N. Y. Supp. 277, and 157 App. way Bank, 156 N. Y. 459; Rochester, Div. 726, 142 N. Y. Supp. 779; etc.RoadCo. w.Paviour, 164id.281; Empire State Surety Co. v. Nelson, Ward v. City Trust Co., 192 id. 61; 141 App. Div. 850, 126 N. Y. Supp. Schank v. Schuchman, 212 id. 352. 194 Abbott's Forms of Pleading and thereunder "A. B.," and thereafter deposited said check to his personal account in the defendant bank. III. That defendant accepted the said check, and placed it to the personal credit and account of said A. B. and col- lected the same, and afterward applied the proceeds thereof in payment of checks drawn against such proceeds by the said A. B. personally for his personal benefit, and thereby misappropriated the proceeds thereof to the personal use of said A. B. without authority. IV. That defendant had notice that said check and the proceeds thereof were the property of the plaintiff, and with notice putting it upon inquiry, which it failed to make, and which would have disclosed the fact, that said check was placed to the personal credit and account of said A. B. and the proceeds thereof were being by said A. B. withdrawn, nevertheless paid and appropriated such check and proceeds to the personal use of said A. B. without authority. V. That there is now due and owing from the defendant to the plaintiff the sum of dollars, and that no part thereof has been paid, although payment has been demanded by the plaintiff of the defendant. Wherefore [etc., demand of judgment]. 185. To Recover Partnership Fiinds Applied by a Partner to Discharge his Private Debt."^ I. That at the times hereinafter mentioned plaintiff and defendant Y. Z. were and are co-partners, doing business under the firm name of B. & Z. II. [Allege reason for making partner a defendant, as in Form 5.1 "^ III. That on and prior to , 19 , defendant Y. Z. was personally indebted to defendant W. X., in the sum of at least dollars; that such indebtedness was a pri- '^^ Adapted from Baron v. Lakow, '" Unless the guilty partner will 121 App. Div. 544, 106 N. Y. Supp. consent to join as plaintiff, he must 243. be made a defendant, fd. Money Loaned, Paid, Had and Received 195 vate indebtedness of said defendant Y. Z. and did not arise out of any partnership transaction or obligation. IV. That on or about said day of , 19 , the defendant Y. Z., without the [knowledge or] consent of said plaintiff, paid from the funds of said partnership to said defendant W. X. the sum of dollars upon his said private indebtedness. [V. That said defendant W. X. knew that said payment was made to him out of partnership funds, and without plaintiff's consent.] "* VI. That defendant W. X. has refused to return said moneys, although demand therefor has been duly made upon him. Wherefore [etc., demand of judgment]. 186. By Trustee in Bankruptcy to Recover Preferential Payment. "9 [Under National Bankruptcy Act, § 60.] I. [Allege bankruptcy adjudication and appointment of plaintiff as trustee; see Form 115.] II. [Allege preferential payment by bankrupt, as:] That on or about the day of , 19 , said [bankrupt] paid to the defendant the sum of dollars to be ap- plied, and which was received by defendant and applied, on account of [or, in payment of] an indebtedness of said [bankrupt] to the defendant. III. That on said day of , 19 , the date of said payment to defendant, said [bankrupt] was wholly insolvent, and known to be insolvent by the defendant; that said attempted payment created a preference in favor of the defendant against the other creditors of said [bankrupt], and depleted the assets of said bankrupt, and was inade in viola- tion of the United States bankruptcy laws, and defendant •■"Such allegation is probably un- Cohen v. Small, 120 App. Div. 211, necessary. Rogers v. Batchelor, 12 104 N. Y. Supp. 412, aff'd 190 N. Y. Pet. 221-. 568; Benedict v. Deshel, 177 N. Y. '" Adapted from complaints in 1. 196 Abbott's Forms of Pleading had reasonable cause to believe that said payment was in- tended as a preference in his favor. IV. That heretofore, and prior to the commencement of this action, plaintiff, as trustee of the estate of said [bank- rupt], duly demanded in writing the payment to him by the defendant of the said sum of dollars, but the de- fendant has failed to comply with such demand, and refuses to return said sum to plaintiff. Wherefore [etc., demand for judgment]. 187r To Recover Money Paid under Mutual Mistake of Fact; Taxes Erroneously Assessed.^'" I. [Allege defendant's corporate capacity, as in Form 55.] II. That heretofore and on or about the day of , 19 , defendant had and received from plaintiff, erroneously paid by him as and for taxes, the sum of dollars, which the plaintiff erroneously paid as and for taxes for the years [designate] as follows, upon the following described property: [describe property]. III. [Allege mutual mistake of fact, as:] That said lands upon which said taxes were so paid by plaintiff to defendant were mistakenly assumed by them to be, but were not within the limits of the territory of the defendant city, but were wholly within the county of ; and said lands were not liable or subject to tax in or by said city for any purpose whatever, and the defendant had and received said sum from plaintiff without any right thereto. [Notice of presentation of claim, and failure to make adjust- ment, as in Form 58.] Wherefore [etc., demand of judgment]. '™ From complaint in Betz v. City a recovery by plaintiff was sus- of N. Y., 193 N. Y. 625, where tained. See notes to following form. Money Loaned, Paid, Had and Received 197 188. To Recover Amount Over-Paid by Mistake ; ^"^ Bank against Depositor. i°* I. [Allege plaintiff's incorporation as in Forms 44, ^tc] and engaged in the business of banking at II. That on and prior to the day of , 19 , the defendant had an account with the plaintiff b^nk, and made deposits of money with it which plaintiff held subject to the defendant's written order for payment. III. That on or about said day of , 19 , defendant presented to plaintiff his written order to pay to himself the sum of dollars; that on said day the amount held by plaintiff for defendant on deposit as afore- said was the sum of dollars, but that plaintiff be- lieved that said amount was dollars, or more, and by mistake paid to defendant the said sum of dol- lars upon his aforesaid order. IV. [Demand,^^^ etc., as in next form.] Wherefore [etc., demand of judgment]. '*' Money paid under a mistake of Citizens Nat. Bank v. New Amst. fact may be recovered back, however Nat. Bank, 128 App. Div. 554, 112 negligent the party paying may N. Y. Supp. 973, aff'd 198 N. Y. 520; have been in making the payment, Merch. Bank v. Natl. Eagle Bank, unless the payment has caused such 101 Mass. 281; Merchants' Bank v. a change in the position of the other Natl. Bank of Com., 139 Mass. 513, party that it would be unjust to re- lEast. Rep. 271; Meredith v. Haynes quire him to refund. Hathaway v. (Sup. Ct. Pa., 1884), 19 Cent. L. J. County of Delaware, 185 N. Y. 368; 133; Mfrs. Nat. Bank v. Perry BaU V. Shepard, 202 id. 247. (Mass., 1887), 3 N. E. Rep. 927; If a creditor of an estate has re- s. p., Lawrence v. Am. Natl. Bank, ceived from the representative more 54 N. Y. 432; contra, Preston c. than his pro rata share, an action Canadian Bank, 23 Fed. Rep. 179. will lie by the representative for the In Com Exchange Bank v. Gross, overpajTnent. Woodruff v. Claflin 86 Misc. 4, 148 N. Y. Supp. 2, plain- Co., 198 N. Y. 470. tiff recovered the amount not col- 1'' Seedtizens Trust Co. v. Levine, lected of defendant when the latter's 162 App. Div. 184, 147 N. Y. Supp. note was surrendered to him, a lesser 737. amount being then demanded and The action is not confined to one paid by mistake, and the bank having against the drawer, but any payee, made good the mistake to the de- or collecting agent, if still holding the positor. funds, may be held liable, in the ab- "' Should, of course, be for excess sence of any intervening equities. of payment over amount of deposit. 198 Abbott's Forms of Pleading 189. The Same; Erroneous Account Rendered to Plaintiff and Paid.'" I. That the defendant, on or about the day of , 19 , at , rendered an account to the plaintiff of dealings theretofore had between them, between 'and , which account showed an alleged balance due from plaintiff to defendant of dollars. II. That the plaintiff believed said account to be correctly stated and relied thereupon, and on the day of , 19 , paid to the defendant said amount of dollars, in settlement thereof. ^^' III. That said account was not correctly stated; that it overcharged the plaintiff with the sum of dollars, for [specifying the error], which amount plaintiff has overpaid to defendant. IV. That on or about the day of , 19 , plaintiff informed defendant of the aforesaid error and over- payment, and demanded repayment of said sum of dollars,"® but no part thereof has been repaid. Wherefore [etc., demand of judgment]. '** A suit in equity will not lie on is not assignable. Byxbie v. Wood, the facts here alleged even though 24 N. Y. 607. it be alleged that defendant alone '™ A demand is not necesary before kept the accounts between the par- suit for money paid by mistake, in ties. Wisner v. Cons. Fruit Jar Co., case the mistake was not mutual, 25 App. Div. 362, 49N. Y. Supp. 500; where the defendant has received Ward V. Peck, 114 Mass. 121. An money consciously that did not b^ action at law for money had and re- long to him. Martin v. Home Bank, ceived is proper. See note 151 to pre- 160 N. Y. 190. But the party re- ceding form. ceiving money paid under a mutual In Armour v. Sound Shore, etc., mistake of fact is not a bailee or Co., 159 App. Div. 213, 144 N. Y. trustee. Sharkey v. Mansfield, 90 Supp. 340, plaintiff recovered an N. Y. 227. Nor does any duty to overpayment on purchase of land, return it arise until he has been due to mistake of the surveyor. informed of the error. Southwick 156 If the complaint charges fraudu- v. First Natl. Bank, 84 N. Y. 420; lent representations by defendant. Mayor v. Erben, 3 Abb. Ct. of App. by which the plaintiff was induced to Dec. (N. Y.) 255. Interest cannot pay him Jhe. money, this does not be charged until defendant has necessarily stamp the action as in been put in default through de- tort, or show that the cause of action mand for repajonent and refusal. Money Loaned, Paid, Had and Received 199 190. The Same; Upon a Sale of Goods.^" « [After alleging the sale, and the price to be paid, continue:] That by mistake of fact as to the amount which plaintiff should pay defendant for said goods, plaintiff overpaid de- fendant to the extent of dollars, no part whereof has been returned by defendant although demand therefor has heretofore been duly made. 191. To Recover Moneys Deposited under Irrevocable Trust for Plaintiff, and Withdrawn by Donor. ^^^ I. [7/ against donor's estate, allege his death and appoint- ment of representative, as in Form 61 or 64.] II. That heretofore the [defendant's testator], in his life- time, gave to, and held in trust for, plaintiff, by irrevocable gift and trust the sum of dollars [or, where many savings bank deposits are relied on, the following separate sums of money on the following days — stating]. III. Thaf [on or about the respective dates aforesaid] said [testator] did declare, and state and represent, to plaintiff, that he held the amount thereof in trust for plaintiff, and would so continue to hold the same until his death, and that said sums belonged to and were the property of plaintiff, and that on his, [testator's], death the plaintiff should and would have the unqualified possession and control of said sums; that plaintiff consented to the making of said gifts and the creation of the trust as aforesaid. IV. That thereafter, and with the knowledge and consent of plaintiff, said sums aforesaid were, upon the aforemen- tioned dates deposited by said [testator] in the Savings Bank under an account with said bank in the name of said [testator] in trust for plaintiff; that interest on said amount thereafter accrued in the sum of dollars, and was Evans v. Garlook, 37 Hun (N. Y.), "' Adapted from complaint in 588. Tiemey v. Fitispatrick, 195 N. Y. 433. '" Action sustained in Pajme v. See, also, Matthews v. Brooklyn Sav- Wetherbee, Sherman & Co., 132 ings Bank, 208 N. Y. 508; Hem- App. Div. 579, 117 N. Y. Supp. 15. merick v. Bank, 205 id. 366. See notes to two preceding forms. 200 Abbott's Forms of Pleading credited by said bank thereon; that upon the making. of said deposits a bank book was issued by said bank in the name of said [testator] in trust for plaintiff, in which book was credited the amount so held on deposit as aforesaid, and said bank book was thereafter and while said sums so remained on deposit as aforesaid delivered by [testator] to plaintiff. V. That thereafter said [testator] wrongfully and without the plaintiff's consent took said bank book from plaintiff and drew out the moneys so deposited, and said sum so withdrawn was mingled by said [testator] with his own prop- erty; ^''^ that no part of said money so withdrawn has ever been paid to plaintiff. VI. That prior to the commencement of this action plain- tiff duly demanded of defendant as such executor payment of said sum of dollars, but defendant refused and still refuses to pay to plaintiff any part thereof. Wherefore [etc., demand for judgment]. 192. To Recover Insurance Moneys Collected by De- fendant's Testator. [Adapted from complaint in Roberta v. Ely, 113 N. Y. 128.] I. That on or about the month of ; 19 , plaintiff purchased from Y. Z., the defendant's testator [goods], at the agreed price of dollars, said [goods] then being in the custody of the Company. II. That about the same time it was agreed between plaintiff and said colnpany, that the company should hold the [goods] in store for plaintiff and insuue said [goods] for his benefit to the amount of the cost value; that said company subsequently represented to plaintiff that it had so insured the [goods] and rendered plaintiff an account charging the premium thereon as paid. III. That subsequently and on or about * , [a speci- fied part of the goods] was destroyed by fire while in the cus- tody of the company. ''■'Or, if according to fact, allege donor's death. See Matter of Totten, continuance of such deposit at time of 179 N. Y. 112. Money Loaned, Paid, Had and Received 201 IV. That the total value of all the [goods] destroyed, in- cluding that of the plaintiff, and thus insured, was about dollars, of which about [one-seventh] belonged to the plaintiff. That the said company settled with said Y. Z., the defendant's testator, for all the [goods] destroyed, in- cluding the [goods] of the plaintiff; and on or about , said defendant's testator received by reason of the destruc- tion of the part of said goods belonging to plaintiff, about dollars, and was instructed to account therefor to the .plaintiff, the exact amount thus paid being unknown to the plaintiff."" V. That the said Y. Z., defendant's testator, instead of paying over to the plaintiff his share of the said insurance moneys, wrongfully appropriated it to his own use, in fraud of plaintiff's rights. ^*^ VI. [Death of Y. Z., and capacity of defendant as in Form 64.] VII. That on or about the day of > 19 , plaintiff duly demanded of defendant that he account to plaintiff and pay over to him the sum found due thereon, but defendant refused so to do. Wherefoke [etc., demand of judgment]. 193. Against one who has Collected Insurance Loss on Plaintiff's Goods. ^^^ I. That at the times hereinafter mentioned, the defendant "" In the precedent, plaintiff asked recipient of the insurance moneys, for an accounting, but the court held the proper allegation would be merely that the facts alleged in the complaint ■ of previous demand and refusal to Bhowed such an accounting only was pay over. See next form, necessary as could be as readily had ''^ From Fish v. Sleberger, 154 III. in a legal action, and that the legal 30, where it was held that the action limitation of six years applied, to be would lie, although there was no computed from the day deceased agreement by the factor that he received the money. should procure the insurance, or "1 This charge of misconduct by duty on his part so to do, and al- the testator did not affect the char- though the goods were not in fact acter of action against his executors; damaged, if the defendant had been the original 202 Abbott's Forms of Pleading was engaged in the business of selling produce on commission at the city of II. That on or about the day of , 19 , plaintiff shipped to defendant [5,000 pounds of butter] to be by defendant stored and sold for plaintiff's account. III. That defendant received and stored said [butter], and had the same insured, and plaintiff paid the insurance pre- miums therefor. IV. That on or about the day of , 19 , said [butter] was injured by fire, and the defendant thereupon collected the insurance thereon to the amount of [three cents per pound, amounting to] dollars. V. That payment of said sum has been demanded of the defendant by plaintiff, but defendant refuses to pay the same. Wherefobe [etc., demand of judgment]. 194. Against One who has Received Plaintiff's Share of Proceeds of Security upon their Joint Property."^ I. That heretofore plaintiff and defendant bartered or exchanged certain merchandise consisting of dry goods, owned by them in equal shares, for certain real estate, to wit [briefly describing it]. II. That upon the making of said barter or exchange, plaintiff, for convenience, took, in his own name, the con- veyance and title of said property in the interest of the plaintiff and defendant. III. That it was a part of the agreement between plaintiff and defendant, in respect to said barter or exchange, that upon so taking said conveyance plaintiff should execute and deliver to the defendant his bond in the penalty of- doUars, conditioned for the payment of dollars, se- cured by a collateral mortgage upon the said real estate, which bond and mortgage should be thereupon negotiated '''Adapted from Gibbs v. Hich- action defendant was liable to arrest, born, 12 Hun (N. Y.), 480, where Compare N. Y. Code Civ. Pro., it was held that on this cause of § 549. Money Loaned, Paid, Had and Received 203 and sold by the defendant, and the proceeds thereof should be divided between plaintiff and defendant according to the proportions of their said respective interests in said mer- chandise so bartered and exchanged for said real estate, after first allowing to this plaintiff out of the same the expenses incurred by him upon the examination oi,- the title of said real estate. IV. That thereafter and* on or about the day of , 19 , plaintiff made and delivered to the defendant the bond and mortgage as aforesaid, and the defendant negotiated and sold the same and received the full amount thereof. V. That plaintiff necessarily expended the sum of dollars in examination of the title to said real estate; that the proportion of the amount of said bond and mortgage payable to plaintiff by defendant, pursuant to the agreement aforesaid, is dollars, upon account of which defend- ant had at different times paid or caused to be paid to the plaintiff the sum of dollars. VI. That plaintiff had demanded from the defendant at different times the payment and delivery to him of the said portion of said proceeds of said bond and mortgage to which he was so entitled, but the defendant had hitherto neglected and refused to so pay or deliver any part of the same except the said sum of dollars above mentioned. Wherefore [etc., demand of judgment]. 195. Against Executor for Money Received by Decedent. I. That M. N. in his lifetime and on or about the day of , 19 ; received from the plaintiff the sum of dollars, par value, in bonds, for safe- keeping; that thereafter, and about the year 19 , the said M. N. converted said bonds into money, at the request of the plaintiff, and loaned of said proceeds the proceeds of dollars of said bonds but retained the proceeds of the remaining dollars of said bonds, which proceeds were more than the sum of dollars, but what sum 204 Abbott's Fobms of Pleading plaintiff cannot more particularly state, in his hands on deposit as aforesaid. II. That no part of the said dollars has been paid or accounted for, and the plaintiff is informed and believes that said.M. N. thereafter mingled the same with his own private funds and used the same until his death. III. [Allege death of M. N. and appointment of defendant, as in Form 64.] IV. That plaintiff has caused a claim for said dol- lars to be duly presented to said executor, but he has refused to allow the same, and, on the contrary, has heretofore re- jected and disputed the same. Wherefoee, plaintiff, who has heretofore elected to waive the tort and treat the foregoing cause as a debt upon contract, demands judgment that said defendant account and pay over to him the said sums and the income thereof, if it can be traced, and if it cannot be traced that he may have judg- ment against said executor for the sum of dollars, with interest from , 19 , [etc.], 196. For Repayment of a Judgment Paid and Afterwards Reversed."* I. That on or about the day of 19 , judgment was duly given against this plaintiff and in favor of the defendant in the Court, in and for the county of , in an action wherein the defendant was plaintiff, and this plaintiff was defendant, for the sum of dollars. II. That on or about the day of , 19 , the plaintiff was compelled to pay,"'' and did pay [or, simply, '" The powerof an Appellate Court elers' Ins. Co. v. Heath (Pa.), 9 W. to order restitution will usually afford N. C. 516. a remedy which is preferable to this An action will lie upon an express action. See N. Y. Code Civ. Pro., agreement to refund in case of a rever- § 1323, and 2 Abb. Practice & Forms sal of judgment. Valentine «. Central (2d ed.), p. 2109. But the refusal of Nat. Bank, 10 Abb. N. C. (N. Y.) 188. the Appellate Court to order restitu- "^ Coercion under an execution is tion is no bar to this action. Trav- not necessary. Soholey v. Halsey, 72 N. Y. 578. Money Loaned, Paid, Had and Received 205 paid! to the defendant the sum of dollars in satis- faction of said judgment. III. That on or about. the day of , 19 , a judgment was duly given by the Appellate Division of said Court in and for the department [or other Appellate Court] whereby said first-mentioned judgment was duly reversed. ^^^ IV. That on or about the day of , 19 , plaintiff demanded of defendant the return to him of said sum of dollars, but no part thereof has been paid. ^" Wheeefore [etc., demand of judgment]. 197. For Restitution, after Reversal of Order Vacating Attachment against Creditors under Junior Attach- ments, to whom Sheriff had Paid Moneys Levied upon under Senior Attachment."^ [Sustained in Haebler v. Myers, 132 N. Y. 363, 28 Abb. N. C. 175, 44 N. Y. State Rep. 403.] T. That at all the times hereinafter mentioned, the plain- tiffs were co-partners, doing business together under the firm name of H. & Co., and the defendants were co-partners, doing business together in the city of II. That on or about the day of ,19 , the plaintiffs issued to the then sheriff of the county of , '" It is not enough to show that the nal to compel restitution. Whether judgment was erroneous. It must restitution shall be compelled is dis- have been reversed. Walker v. Ames, cretionary. Parker v. Lythgoe, 28 2 Cow. (N. Y.) 428; White v. Ward, 9 N. Y. State Rep. 887, 14 N. Y. Supp. Johns. (N. Y.) 232; and see Roth v. 528. When reversal is ordered in the Schloss, 6 Barb. (N. Y.) 308. Court of Appeals the motion may be The fact that a new trial is ordered made in that court or in the Ap- • does not suspend the right to recover pellate Division of the lower court. back the payment. Sturges v. AUis, Carlson v. Winterson, 146 N. Y. 345, 10 Wend. (N. Y.) 355; Holley v. 40. N. E. Rep. 995, 66 N. Y. State Gibbons, 177 N. Y. 401. Rep. 649. '"' Demand is necessary before ac- The decision above cited holds that tion. Scholey v. Halsey, 72 N. Y. the Code remedy is not exclusive, and 578. that an action lies upon common-law "'New York Code Civ. Pro., principles for money received to plain- § 1323, empowers the appellate tribu- tiff's use. 206 Abbott's Foems of Pleading a warrant of attachment procured by them in an action in the Court of , in which these plaintiffs were plaintiffs and M. N. and others were defendants. III. That the said sheriff levied said attachment, and by- reason of such levy received the sum of dollars in money and held the same under and by virtue of said war- rant of attachment. IV. That on or about the day of , 19 , judgment in said action in the said Court was duly entered in favor of the plaintiffs for the sum of dollars. V. That the plaintiffs issued execution on said judgment to the sheriff to whom the attachment in said action was issued, and said execution was returned by him wholly un- satisfied and said judgment remains wholly unpaid. VI. That prior to the entry of the aforesaid judgment, and on or about the day of > 19 , the defend- ants, as subsequent lienors, obtained an order in said action in the said Court for the plaintiffs to show cause why said attachment should not be vacated and staying the sheriff from paying over to the plaintiffs the money received by him under said attachment. VII. That the motion made by the defendants on said order to show cause was granted, and on or about the day of , 19 , an order was entered by these de- fendants in said action in the said Court, vacating said attachment. VIII. That after said attachment was so vacated, and in consequence thereof, and not otherwise, said sheriff paid over to these defendants, as subsequent Uenors, said dol- lars which he had received under the attachment issued to him as aforesaid by the plaintiffs. IX. That said order of the day of , 19 , vacating said attachment, was affirmed by the Appellate Division of the said Court for the depart- ment, by an order entered in said court by the defendants on or about the day of , 19 . Money Loaned, Paid, Had and Received 207 X. That the plaintiffs thereafter appealed by permission to the Court of Appeals from said order of said Appellate Division, and the Court of Appeals reversed said orders of the Appellate Division and Special Term of the said Court, and denied the motion made by these defendants to vacate said attachment, and said decision of the Court of Appeals was made the decision of the said Court by an order entered therein on or about the day of ,19 . XI. That restitution of said siun of dollars ob- tained by the defendants as aforesaid by reason of the vacat- ing of said attachment, has been demanded of the defendants and they have failed and refused, and still fail and refuse, to make such restitution, either in whole or in part. Wherefore, the plaintiffs demand that the defendants be ordered and decreed to make restitution to the plaintiffs of the said sum of dollars, with interest thereon, from the day of , 19 , besides costs of this action. 198. To Recover Amount Paid on Contract which Plaintiff has Elected to Rescind on Ground of Fraud. ^^' I. That on or about the day of > 19 , plaintiff and defendant entered into an agreement whereby [state character, as] plaintiff agreed to buy and defendant agreed to sell for the sum of dollars [describe prop- erty], and plaintiff then and there paid the sum of dollars on account of the .purchase price thereof. II. That thereafter and on or about the day of '«' Adapted from Walter v. Garland exercised, see Heckscher v. Edenbom, Auto. Co., 164 App. Div. 183, 149 203 N. Y. 217; Vail v. Reynolds, 118 N. Y. Supp. 653; Stem v. Stern, 122 N. Y. 297. 4pp. Div. 821, 107 N. Y. Supp. 900; Plaintiff must first restore, or offer Lambert v. Elmendorf , 124 App. Div. to restore, whatever he received by 758, 109 N. Y. Supp. 574. virtue of the contract, before he can For the various remedies of the sue for the consideration, as in above party defrauded, and the conditions form. Youngman v. Smadbeck, 64 under which each remedy , may be Misc. 60, 117 N. Y. Supp. 1030. 208 Abbott's Forms of Pleading , 19 , plaintiff paid to defendant the sum of dollars, the balance of such purchase price, and defendant thereupon executed and delivered to plaintiff a deed which defendant represented to plaintiff conveyed to plaintiff the aforementioned property, and which plaintiff accepted under the belief that such property was thereby conveyed to him. III. That said deed did not convey the property so pur- chased by plaintiff, and agreed to be sold by defendant, but conveyed other premises, to wit [describe], all of which de- fendant well knew; that thereby defendant intended to de- ceive and defraud plaintiff. IV. That plaintiff has elected to rescind said agreement because of the aforesaid fraud, and has heretofore executed a deed conveying to defendant the property conveyed to plaintiff by the deed aforesaid, and has tendered the same to defendant and demanded of defendant the repayment of said sum of dollars; that defendant has refused to accept or receive said deed, and has refused to repay to plaintiff any portion of said sum. Wherefore [demand of judgment for amount paid and interest].^'"' 199. The Same; After Rescission Because of Defendant's Breach.i" [After alleging the contract as made, and defendant's breach — for which see appropriate forms under Sales of Personal Property {Chapter 27), etc.] That prior to defendant's default as above alleged, and on or about the day of , 19 , plaintiff paid 1™ Davis V. Rosenweig Realty Co., the measure of damage is the amount 192 N. Y. 128; Elterman v. Hyman, paid; in the action for breach of 192 N. Y. 113. contract, the vendee may receive the 1" See Whiting v. Derr, 121 App. value of his contract, which includes Div. 239, 105 N. Y. Supp. 854; not only the purchase price paid but Vollmer v. Hayes Machine Co., 129 also the value of the contract. Tomp- App- Div. 426, 114 N. Y. Supp. 446. kins v. Lamb, 121 App. Div. 366, 106 The vendee may at his election N. Y. Supp. 6, aff'd 195 N. Y. 518. have an action for breach of contract. See form of complaint under Sales In the action based upon a rescission, op Personal Pbopeety, Chapter 27. Money Loaned, Paid, Had and Received 209 to defendant the sum of dollars as an advance pay- ment on account of said purchase price [or otherwise — and in compliance with plaintiff's said agreement so to do]. That thereafter and subsequent to defendant's default as hereinbefore alleged, and on or about the day of , 19 , plaintiff duly notified defendant that he elected to rescind said agreement because bi defendant's said default, and thereupon demanded that defendant repay said sum of dollars so paid by plaintiff, but defendant refused so to do. Wherepoke [etc., demand for judgment]. 200. Against One who has Wrongfully Disposed ot Plain- tiff's Property, Plaintiff Waiving the Tort.i''^ I. That at , and on or about the day of , 19 , plaintiff was the owner of [describe prop- erty]; that the defendant, who had obtained possession thereof, on said day sold and delivered the same to one M. N. [or, to certain persons to plaintiff unknown] and re- ceived therefor the sum of dollars, which said sum was received by defendant to the use of plaintiff."^ [Demand and non-payment as in Form 143.] "2 Under this fonn of pleading, v. Krellman, 89 App. Div. 363, 85 plaintiff is entitled to establish the N. Y. Supp. 945; Doherty ;;. Shields, circumstances of the transaction 86 Hun, 303, 33 N. Y. Supp. 497, and which give him the right to treat the cases cited. But in order to avoid defendant as his agent in making the troublesome questions involving sur- sale and receiving the proceeds. prise, I advise that the complaint in Doherty v. Shields, 86 Hun, 303, 33 code states be framed so as to briefly N. Y. Supp. 497, and cases cited. state the transaction; other forms in The form is adapted from com- this chapter will sufficiently show the plaint in Am. Trust & Sav. Bank v. more desirable method. See, also, Thalheimer, 29 App. Div. 170, 51 Am. Trust & Sav. Bank w.-Thal- N. Y. Supp. 803. heimer, 29 App. Div. 170, 61 N. Y. This form would be unquestion- Supp. 803. ably sufficient to support a verdict "^ Plaintiff thereby elects to receive founded upon the theory that the the true amount received by his money was received by the wrong- agent, and the latter may show a doer under such circumstances that mistake in an account rendered, it would be unconscionable not to Stewart v. Harris, 101 App. Div. 181, require him to pay it over. See Silver 91 N. Y. Supp. 438. 210 Abbott's Forms of Pleading 201. For Money Paid by Plaintiff to Defendant upon Defendant's False Representation. ^''^ I. [Allege transaction with relation to which the false repre- sentation was made, as:] That on or about the day .of , 19 , plaintiff bought of defendant [goods] for which he agreed to pay [I per bale, and the duty on said goods in addition]. II. That defendant represented to plaintiff that the duty on said goods was [forty-five cents per pound] when in fact it was but [thirty-five cents per pound]. III. That plaintiff paid to defendant the said agreed price, and also the full amount of the duty reckoned at the fictitious price of [forty-five cents per pound]. IV. That the amount of the overpayment to defendant because of said false representations as to the duty is dollars; that plaintiff has duly demanded repayment of said amount of the defendant but no part thereof has been re- paid."^ Wherefore [etc., demand for judgment]. 202. To Recover Moneys Paid to Defendant on Fictitious Transactions."* I. [Allegation of corporate capacity, where proper, and allega- tion of defendant's business, as:] and during all the times hereinafter mentioned was engaged" in the business of stock- brokers, in buying and selling stocks, bonds and other secur- ities, and having its principal place of business at "» Adapted, from Ashner v. Aben- plaintiff recovered. See, also, Fuller heim, 83 Hun, 34, 31 N. Y. Supp. 514; v. Same, 117 App. Div. 352, 102 Foote V. Foulke, 55 App. Div. 617, 67 N. Y. Supp. 154, afi'd 192 N. Y. 546. N. Y.'Supp. 267. See next form as to specific allega- '" An allegation of the defend- tions of intent of both parties to par- ant's misappropriation or conversion ticipate in bucket shop transao- of plaintiff's money should not be tions. included. Foote v. Foulke, supra. An action wiU lie on these facts on "' From complaint in Hasbrouck the theory of misapprojjriation of the V. Munic. Tel. and Stock Co., 210 money. See Leach v. Haight, 34 N. Y. 633, where no question of App. Div. 522, 64 N. Y. Supp. pleading was directly involved and 560. Money Loaned, Paid, Had and Received 211 .II. That during the times hereinafter mentioned plain- tiff employed defendant as his broker to buy and sell cer- tain stocks and other securities for his account, and that at such times plaintiff ordered defendant to purchase various shares of stock and various other securities as set forth in the schedule marked A, which is hereto annexed and made a part hereof, and plaintiff paid defendant its charges and commissions for its services in making such purchases and sales. III. That defendant pretended to have executed said orders given to it by plaintiff as aforesaid [and dehvered to the plaintiff certain statements in writing which purported to show such pxu-chases and sales], and that at such times and from time to time thereafter defendant demanded of plaintiff that he deposit various simas of money with it as margins to secure it against loss upon said orders, and the plaintiff in compUance with such demands and on or about said times paid to the defendant the various sums of money particiilarly set forth in said Schedule A, amounting in all to the sum of dollars, which said amount defendant had and received from the plaintiff. IV. Upon information and belief, that the defendant neg- lected and refused to execute said orders of the plaintiff, and did not piirchase or sell any of the said shares of stock for plaintiBf's account. V. That on or about the day of , 19 , plaintiff demanded of defendant the repayment of the money paid to and deposited with defendant as aforesaid, which request was refused by defendant, and no part thereof has been repaid. Wherefore [etc., demand for judgment]. 203. Allegation of the Character of a " Bucket Shop " Transaction. [Sustained against demurrer in Copley v. Doran & Wright Co., 17 N. Y. St. Rep. 601.] ^'] "' It was held that the averments sufficiently showed the transaction to 21^ Abbott's IForms of Pleading^ That the said moneys were paid and dehvered by the plaintiff, and were received by the defendant, as aforesaid, upon a wager or upon a contingency, to wit, upon a future niarket value of wheat, without any intent on the part of the said plaintiff or the defendant to make an actual piu"- chase of wheat for dehvery in August; and the said moneys were received by said defendant without any intent on his part of purchasing any wheat to be delivered to plaintiff, or to any one in his behalf, in August, 19 , but that the same was a transaction in the form of a sale, dependent upon the contingency of the market; and that the said money was received by defendant and paid by plaintiff as and in form of a purchase of bushels of wheat on account of plaintiff, to be delivered in August, but with the intent of having the transaction closed either without notice if the market value of wheat should fall to seventy cents per bushel, or at any other sum above, upon plaintiff's direc- tion; that the transaction should be determined as if upon a sale at the market value as of the time when the transac- tion should be declared closed, and that the defendant should deliver to said plaintiff, if the market should be above seventy-five cents, an amount as if there had been a sale at such amount above said seventy-five cents, Pess an amount to be deducted by defendant as a so-called commis- sion] and that the transaction would then be closed, and profit in form should be paid over to plaintiff. be of the character condemned, citing is merely gambling. See McCarthy Bigelow V. Benedict, 70 N. Y. v. Meany, 183 N. Y. 190. 206. See Form under Answers in actions An action will lie under the statute on bills and notes, for an allegation of against gaming, on the theory that it a transaction in cotton futures. CHAPTER IV COMPLAINTS IN ACTIONS FOR USE AND OCCUPATION ^ PAGE 204. General form 213 205. The same, at an agreed value 215 206. By joint tenant or tenant in common against co-tenant 215 207. For lodgings 216 204. General Form.^ I. That plaintiff at all times hereinafter mentioned was ^ The action for use and occupation lies only when the conventional rela- tion of landlord and tenant exists, i. e., an intention on the part of both to stand in that relation. Castle v. Armstead, 168 App. Div. 466, 153 N. Y. Supp. 266, aff'd 219 N. Y. 615; Edmonson v. Kite, 43 Mo. 176; Aull Savings Bk. v. Aull, 80 id. 190; Coit v. Planer, 51 N. Y. 647; Preston v. Hawley, 101 id. 586; Folsom V. Carii, 6 Minn. 420; Lamb V. Lamb, 146 N. Y. 317; Hennessey V. Hoag, 16 Colo. 460; Nance v. Alexander, 49 Ind. 516. The agree-, ment to stand in that relation may be implied from circumstances. Van Arsdale v. Buck, 82 App. Div. 383, 81 N. Y. Supp. 1017; Preston v. Hawley, 139 N. Y. 296; Rowland v. Pendleton, 11 Ohio St. 664; Despard V. Walbridge, 15 N. Y. 374; Moore v. Harvey, 50 Vt. 297; Stewart v. Fich, 31 N. J. L. 17. Under a complaint declaring for use and occupation the plaintiff can either prove an occupa- tion under a written or parol agree- ment for hiring, or such facts as will raise an implied promise to pay for the occupation of the premises in case there was no express agreement. Waters v. Clark, 22 How. Pr. (N. Y.) 104; Thomas v. Nelson, 69 N. Y. 118; Pierce v. Pierce,-25 Barb. (N. Y.) 243. But an action under a sealed lease should be based upon the in- strument. McLean v. Whitney, 3 Den. (N. Y.) 452; Kiersted v. Orange & Alexandria R. R. Co., 69 N. Y. 343. It is not necessary to show an actual continued occupation to en- title the plaintiff to sustain the ac- tion for use and occupation. West- lake V. De Graw, 25 Wend. (N. Y.) 669; Hall v. Western Trans. Co., 34 N. Y. 284. But the plaintiff is bound to estab- lish that the use and occupation was at the request of the defendant, and by the permission of the plaintiff. Sampson v. Schaeffer, 3 Cal. 190; Hathaway v. Ryan, 35 id. 188; Coit ^ This form is supported by Butler, Inc., V. Dugan, 130 App. Div. 544, 115 N. Y. Supp. 60; Waters v. Clark, 22 How. Pr. 104; Hall v. Southmayd, 15 Barb. (N. Y.) 32; Lamb v. Lamb, 146 N. Y. 317; Bank of Sun City V. Neff, 50 Kan. 506, 31 Pac. Rep. 1054. 213 214 Abbott's Forms of Pleading and now is the owner in fee ^ of premises known as No. street, in , and consisting of a dwelling house and lot [or otherwise describe the locus in quo].''' II. That the defendant used and occupied said premises as a residence [or otherwise] by plauitiff's permission ^ as day of 19 plaintiff's tenant, from the until the day of , 19 . III. That the use of said premises for said period is rea- sonably worth dollars.^ V. Planer, 51 N. Y. 647. It has been held that the action will lie against one whose occupancy is tortious, if plaintiff waives the tort, and sues upon the implied contract, showing defendant's unjust enrichment, at his expense. Lazarus v. Phelps, 152 U. S. 81; Downs v. Finnegan (Minn. Sup. Ct. 1894), 59 N. W. Rep. 981; the contrary is held in Gallagher v. Himelberger, 57 Ind. 63; Ackerman V. Lyman, 20 Wis. 454; Edmonson v. Kite, 43 Mo. 176. In New York it is suggested the recovery should be had as damages for the withhold- ing, incident to an action of eject- ment, or by way of damages in an action for the trespass. Biglow v. Biglow, 75 App. Div. 98, 77 N. Y. Supp. 716. A mere notice that if the trespasser continues in possession he must pay a specified sum, is in- sufficient. Id. * An allegation "that plaintiff is entitled to the rents and profits" of specified premises, without alleging ownership, is a mere conclusion of law. Sheridan v. Jackson, 72 N. Y. 170. No tenancy can be implied under a party who has not the legal estate. Morgell V. Paul, 2 Mann. & R. 303, . 17 Eng. Com. L. R. 303; Evans v. Evans, 3 Ad. & E. 132, 102 Eng. Com. L. R. 80. But one occupying and paying rent to an apparent proprietor as his landlord cannot, when sued, allege that he has only the equitable estate. Dolby v. Hes, 11 Ad. & E. 335, 39 Eng. Com. L. R. 195. Tenants in common may properly join in an action for use and occupa- tion without showing a joint demise. Porter v. Bleiler, 17 Barb. (N. Y.) 149. In an action for use and occupa- tion, demands which accrued in the lifetime of a decedent, and those accruing after his decease, while the tenancy was continued by the execu- tors on account of the estate, are properly joined as one cause of ac- tion, against the executors as such. Pugsley v. Aiken, 11 N. Y. 494. ^A complaint should definitely describe the premises; alleging that defendant "occupied certain premises in the City of Yonkers, owned by plaintiff " is too uncertain and in- definite. Post V. Blazevitz, 13 App. Div. 124, 43 N. Y. Supp. 59; Gus- taveson v. Otis, 57 N. Y. St. Rep. 797, 27 N. Y. Supp. 280. * If the complaint charges that the occupation was a trespass, and yet seeks recovery for use and occupa- tion, it is bad on demurrer. Hurd v. Miller, 2 Hilt. (N. Y.) 540. If a charge of tortious entry be made, the pleader should allege that plaintiff waived the tort and permitted the occupancy. ' A landlord who consents to the Use and Occupation 215 IV. That no part of the same has been paid by defendant [except the sum of dollars, etc.]. Wherefore [etc., demand of judgment], 205. The Same, at an Agreed Value.^ I. That on or about the day of , 19 , the defendant hired from the plaintiff the' [first floor of the warehouse], No. , street, in , at the [yearly] rent of dollars, payable in equal monthly installments of dollars each [on the first day of every month]. II. That the defendant used and occupied the said prem- ises from about the day of , 19 , to the day of , 19 ,' and that such use and occu- pation were reasonably worth the said sum of dollars per month. III. That the sum of dollars, became payable on or about the day of , 19 , for the use and occupation of said premises for the month of , but has not been paid. Wherefore [etc., demand of judgment]. 206. By Joint Tenant or Tenant in Common against Co- tenant. I. That at and on or about 'the day of ,19 , M. N. was the owner in fee of premises tenants holding over, and who sues tion, Thomas v. Nelson, 69 N. Y. for use and occupation, is limited 118; Prial v. Entwestle, 10 Daly to the rate of rental under the former (N. Y.), 398. See, also, notes to lease. Stevens v. City of N. Y., Ill Form 209. If the proof was merely App. Div. 362, 97 N. Y. Supp. 1062. that plaintiff informed defendant ' This is really an action for rent that if he occupied the premises after under a lease, and a recovery may a certain date the rent would be a be had upon the agreement of hiring sum named, from these facts the (Sherman v. Ludin, 84 App. Div. 579, law will imply that the defendant 82 N. Y. Supp. 1032); but the com- assented to the terms imposed and plaint is so framed that if proof of the agreed to pay the rent named, if he express agreement fail, recovery may continued to occupy. Coit v. Planer, be had upon proof of use and occupa- 51 N. Y. 647 (mem.). 216 Abbott's Forms of Pleading [etc., as in Form 204]; that oil said day said M. N. died in- testate, leaving as his only children and sole heirs at law the above named plaintiff and defendant. II. That on said day the defendant entered into posses- sion and occupation of said [farm] and has ever since occu- pied and used the same and appropriated the profits thereof. III. That on or about the day of , 19 , plaintiff demanded of defendant that he permit plaintiff to occupy said premises in common with him, but defendant refused so to do and has continued to wholly exclude plain- tiff from any use or occupation thereof.^ IV. That the use of said premises is reasonably worth the sum of dollars [per year], and there is now due from defendant to plaintiff the sum of dollars as plain- tiff's share of the value of such use since [the day of demand]. Wherefore [etc., demand of judgment]. 207. For Lodgings.8 I. That from on or about the day of , 19 , until about the day of , 19 , de- fendant used and occupied as his lodgings, certain furnished apartments in the dwelUng house owned by plaintiff [or, rented by plaintiff] [No. street, in the city of ,] by permission of the plaintiff, and for which the defendant p'ronused to pay, and which use was reasonably worth, the sum of dollars.^" II. That defendant has paid no part of said sum. Wherefore [etc., demand of judgment]. ' Or, allege an actual agreement to ' For a complaint for board and pay, or an ouster by the. tenant in lodging, see Form 285. occupation. See Willes v. Loomis, ^ See note 7 to Form 206. 94 App. Div. 67, 87 N. Y. Supp. 1086. CHAPTER V COMPLAINT IN ACTION FOR THE HIKE OF PERSONAL PROPERTY ^ PAGE 208. Common form 217 208. Common Form. I. That from the day of , 19 , to the day of ; 19 , the defendant hired ^ from the plaintiff [state what, as: a horse and wagon] for which he promised and agreed to pay to plaintiff the sum of dollars, which was the reasonable valuei thereof. II. That no part of the same has been paid [except the sum of dollars, etc.]. Whijrefore [etc., demand of judgment]. ' If a count is to be added for dam- ages for failure to return as agreed, see appropriate form under Bailees, post. Mere delay in making the re- turn not accompanied by special damage if the chattels were finally restored, could be recovered for as well under an allegation of hiring, embracing both the agreed period • and the period of delay, during which the law would imply a promise to pay the value of the use. Conversion or replevin will he for failure to return as agreed, followed by demand for return. See forms, post, under respective titles. It is probable that no misjoinder results from uniting a count for failure to pay for the hire, and a count for the conversion of the same property. See Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552. ^ "Hired," sufficiently implies a request. Emery v. Fell, 2 T. R. 28. 217 CHAPTER VI COMPIjAINTS IN ACTIONS FOR GOODS SOLD AND DELIVERED ^ PAGE 209. Goods sold and delivered; where the price was agreed upon 219 210. The same, where the price was not agreed upon 221 211. The Same, alleging the contract 222 212. The same, alleging a balance due • 223 213. The same, short form, upon an account 223 214. The same, defendant either td pay for or return goods 224 214a. Where amount and character of goods were to be determined by in- spection under rules of association 225 215. For price after delivery upon trial 226 216. The same, where defendant refuses to accept delivery 226 217. The same, where payment was to be made by means other than pay- ment of money 227 218. The same, alleging the contract, and acceptance of partial perform- ance 227 219. For price to be paid in installments; sale of stock and fixtures of store, and good will 228 220. Sale to defendant and delivery to third person 228 221. Sale and deUvery; anticipating and avoiding defense of payment. . . 229 222. The same, anticipating and avoiding defense of unexpired credit. . . 231 223. Implied sale on waiver of tort; against one wrongfully appropriating plaintiff's chattels 233 1 The forms in this chapter are the vendee. See Form 216; Gross v. appropriate only where there has Ajello, supra. been an executed contract of sale. When no contract relation exists involving delivery of the goods. If and the transaction between the there has been no dehvery, there parties was not in fact a sale, except can be no recovery against objection that by reason of the defendant's upon a complaint alleging sale and possession and retention of the goods, delivery. Cutwater v. Dodge, 7 Cow. the law wiU cast upon him the obU- (N. Y.) 85 (at common law) ; Gross v. gation to pay their reasonable value, Ajello, 132 App. Div. 25, 116 N. Y. it will be better to allege the details Supp. 380 (under Code Procedure). of fact and special circumstances Compare Butler Bros. v. Hirzel, 87 which go to establish the actual App. Div. 462, 84 N. Y. Supp. 693, transaction, rather than rely upon a aff'd 181 N. Y. 520. To constitute simple allegation of sale and delivery a delivery the goods must at least with a claim for their reasonable have been placed in the control of value. See notes to Forms 232 and 237, and see Forms 223 and 224. 218 Goods Sold and Delivered 219 PAGB 224. On implied contract of sale; arising out of defendant's refusal to per- form 233 225. For price of goods, with allegation of fraud in inducing sale 234 226. For necessaries furnished to defendant's wife or infant children .... 235 227. Against husband, for necessaries supplied to wife who is living apart from him 236 228. Against wife who has personally charged herself for necessaries pur- chased . ' 238 229. Against husband and wife for goods sold for her separate estate. . . . 238 230. Against an infant, for necessaries supplied 240 231. Against one who has become liable by novation 241 209. Goods Sold and Delivered; where the Price was Agreed on.^ I. [As in following form, continuing] for which the defend- ant promised and agreed to pay the sum of dollars [and which were of the reasonable value of said sum].^ ^ See note at beginning of this chapter. In the absence of an allegation of the time of payment, the law implies a promise and duty to pay on the delivery of the goods. An unexpired credit under such circumstances is matter of affirmative defense. Heil- broun v. Herzog, 165 N. Y. 98. If in- volved in the construction of a written contract which plaintiff pleads, the objection may be raised under a gen- eral denial. Grabfelder v. Vosburgh, 90 App. Div. 307, 85 N. Y. Supp. 633. An expired term of credit should not be referred to, as serving any useful purpose. ' Either agreed price or value must be alleged, or complaint is demur- rable. Sparks v. Ducas, 123 App. Div. 507, 108 N. Y. Supp. 546. A general practice exists to com- bine in ■ one count the allegations essential to causes of action on an agreed price and for the reasonable value. It is often safer not to base the complaint solely upon an agreed price, but to anticipate a possible failure of proof on that point at the trial, by including also an allegation of value. If on the trial the proofs fail to establish the special contract, but do in fact show an agreement of sale, or an employment, recovery may be had of the value. See Rubin V. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843; Keister v. Rankin, 29 App. Div. 539, 61 N. Y. Supp. 634; Donovan v. Harriman, 139 App. Div. 586, 124 N. Y. Supp. 194; Meissner v. Brennan, 39 N. Y. St. Rep. 443, 15 Supp. 671; Stokes v. Taylor, 104 N. C. 394, 10 S. E. Rep. 566; Roberts v. Demens Wood Working Co., Ill N. C. 432, 16 S. E. Rep. 415; see, also, note on this point to Form 232, and addi- tional cases there cited. An improper commingling of causes of action is ground only for motion to separately state and number them, not demurrer [Freer v. Denton, 61 N. Y. 492; Gunn v. Fellows, 41 Hun (N. Y.), 257], and such an objection is waived if not raised promptly. Of course such a complaint should 220 Abbott's Forms of Pleading II. That [plaintiff has demanded of the defendant pay- ment of said sum/ but that] no part of said sum has been paid ^ [except the sum of dollars].^ Wherefore [etc., demand of judgment]. properly contain two separate counts, but the convenience of the com- mingling, and the uselessness of en- forcing a separation, h^ve led to the general practice as above. Or, the allegation of value may be considered as surplusage (though that would defeat the purpose of its inclusion). See Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843. In Vedder v. Leamon, 70 App. Div. 252, 75 N. Y. Supp. 413, while the conclusion reached was un- doubtedly correct, the prevailing opinion fails to appreciate that an express contract may exist which fails to fix the price of the goods. See Donovan v. Harriman, 139 App. Div. 586, 124 N. Y. Supp. 194. Under this form of complaint, no recovery will be allowed if there was no agreement between the parties; if plaintiff seeks to recover upon the theory of quasi-contract, or unjust enrichment, he should plead the facts. See notes on this subject to Form 232. An election between agreed price and reasonable value ought not to be compelled at the trial. Byrne v. Gillies Co., 144 App. Div. 677, 129 N. Y. Supp. 602. Nor should either allegation be stricken out on motion. Levy V. Roth, 148 App. Div. 241, 133 N. Y. Supp. 8. If only the agreed price is alleged and is denied, plaintiff may recover th^ value (Baumann v. Manh. Con- sumers' B. Co., 97 App. Div. 470, 89 N. Y. Supp. 1088), but the omission of the allegation of value furnishes ground for defendant's claim of surprise and lack of preparation to meet the issue. Such a form as is above given may be used where plaintiff has wholly performed a special contract not under seal, and nothing remains but defendant's duty to pay the stipu- lated price or reasonable value; the common-law rule exists unchanged by the Code. Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843; Columbia Box Metal Co. v. Cohn, 71 Misc. 444, 128 N. Y. Supp. 743; Hosley v. Black, 28 N. Y. 438; Far- ren v. Sherwood, 17 id. 227; Farley V. Browning, 15 Abb. N. C. (N. Y.) 301; Swan Lamp Co. v. Brush Swan El. Light Co., 18 N. Y. Supp. 869; see, also, note on this point to Form 232, and additional cases there cited. ^ Demand is not necessary. A contract to pay, generally, without time or terms specified, creates a debt payable presently, and no pre- vious call or demand of payment is required. Lake Ontario, etc., R. R. Co. 0. Mason, 16 N. Y. 451. On an agreement to pay on de- mand, no demand is necessary to be alleged or proved if the promisor be ' Non-payment must be alleged. See p. 18, note 70, land cases there cited; also note on this point to Form 232, and cases there cited. " To add "and said amount is now due and payable" is merely the statement of a conclusion of law, and no issue will arise upon its de- nial in the answer. Heilbronn v. Herzog, 165 N. Y. 98. Goods Sold and Delivered 221 210. The Same, where Price was not Agreed Upon.'' I. That on or about the day of , 19 ,* [or, between the day of , 19 , and the day of 19 ,] 9 at plaintiff sold the principal debtor; it is necessary if he is a surety. See p. 19, supra; First Nat. Bank v. Story, 200 N. Y. 346; Nelson v. Bostwick, 5 Hill (N. Y.), 37. The object of averring a demand is simply to carry interest. Where goods are purchased at a price fixed by the parties, and without fixing any term of credit, the debt is pay- able at once (Tipton v. Feitner, 20 N. Y. 423); interest is properly chargeable from the time of the de- mand. Beers v. Reynolds, 11 N. Y. 97. Where an account for services, or for goods sold and delivered, pay- able in money although not strictly liquidated, is presented and pay- ment demanded, interest is set running; if not demanded before, the commencement of the suit is a sufficient demand to set the interest running from that date. See Sweeney V. City of New York, 173 N. Y. 414. Interest may be awarded upon breach of an executory contract of sale if the property has a market value, otherwise not. See Sloan v. Baird, 162 N. Y. 327. Against a municipal corporation interest will not be al- lowed until demand for payment has been made. O'Keefe v. City of N. Y., 176 N. Y. 297. ' This form will be appropriate whether the sale agreement was oral or written, as such fact does not have to be alleged. Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843. If, however, plaintiff seeks to re- cover upon quasi-contract, involving no agreement between the parties but resting solely on the obUgation raised by law, this form should not be used, but the facts should be alleged which give rise to the obligation. See notes to Forms 232 and 237, and see Forms 223 and 224. * Time and place of each transac- tion should be alleged with reasonable certainty; if omitted the pleading will be ordered amended in this respect. Peters v. Huppert, 159 App. Div. 829, 144 N. Y. Supp. 1068; see note on page 118. The general rule is that time as a matter of pleading is immaterial, and allegations in that respect do not con- clude the party; the materiality of a variance is entirely a question of whether it operates to surprise the adversary, as ground for an adjourn- ment and imposition of terms upon amendment. See Code Civ. Pro., § 539; Brown v. C>dy, 23 App. Div. 210, 48 N. Y. Supp. 1054, aff'd 164 N. Y. 594; Danzig v. Baroody, 140 App. Div. 542, 125 N. Y. Supp. 797. There are exceptions to this general rule, e. g., when for the purpose of the action or defense it is necessary to show that an act or event preceded or succeeded another act or event. Brown v. Cady, supra. Even in that case, the allegation may be generally, that the act or event was prior to some specified date. See Barclay v. Barclay, 162 App. Div. 557, 147 N. Y. Supp. 597. ' Deliveries upon a running ac- count may be considered as consti- tuting but one transaction and one cause of action. Secor v. Sturgis, 16 N. Y. 548, 222 Abbott's Forms of Pleading and delivered " to the defendant, at defendant's request,^* [here briefly designate the articles ^^ — or,] certain goods, wares and merchandise, particularly set forth in Schedule A here- unto annexed and made a part of this complaint. II. That [defendant agreed to pay therefor and] ^' the same were reasonably worth the sum of dollars." III. That no part thereof has been paid [except, etc.].^^ Wherefore [etc., demand of judgment]. 211. The Same, Alleging the Contract. i« I. That on or about the day of , 19 , at , plaintiff and defendant entered into an agree- ment in writing of which a copy [or, which was in the language, a correct translation of which] is hereto annexed '■" If the goods have not been physically (or symbolically) de- livered, do not use this form, as defendant may urge a variance. See note at beginning of this chapter. • The allegation of sale and delivery- should show that such sale was made to the defendant. See Ballard v. Friedeberg, 177 App. Div. 715. >' Not necessary but almost in- variably included. The allegation "sold and delivered" sufficiently impKes a request. Emery v. Fell, 2 T. R. 28; Glenny v. Hitchins, 4 How. Pr. (N. Y.) 98; Aeomez;. Am. Mineral Co., 11 id. 24; Victors v. Davis, 1 Dowl. & L. 986, 12 M. & W. 760. Details of time and place and man- ner of request are not required to be stated. Smythe v. Cleary, 127 App. Div. 555, 111 N. Y. Supp. 872. '■' The description may be general; proof of the details, and performance in accordance therewith, will be ad- mitted under such pleading. Logan V. Berkshire Apartment Ass'n, 18 N. Y. Supp. 164, aff'd 3 Misc. Rep. 296, 22 N. Y. Supp. 776; Neal v. Showalter, 5 Ind, App, 147, 31 N. E, Rep. 848. " See note 3 to preceding form on joining allegations of agreed price and value. " The allegation of value is mate- rial. Gregory v. Wright, 11 Abb. Pr. (N. Y.) 417. A special contract fixing the price may be proved to show the value. Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843. See note 3 to preceding form. 1^ Non-pa3Tnent should be alleged. See p. 18,' note 70, and cases there cited. An impUed promise to pay is mat1;er of law, and need not be pleaded. Farron v. Sherwood, 17 N. Y. 227. To the same effect Allen v. Patterson, 7 id. 476; Wilkins v. Stedger, 22 Cal. 229; Milliken v. Western Un. Tel. Co., 110 N. Y. 403. " It is not necessary to refer to a special contract, fully performed by plaintiff, the only remaining obliga- tion being defendant's payment. See note 3 to Form 209 and cases cited. It may be better, however, in narrowing the issue, and avoiding a claim of surprise, to set forth the contract as in this form. Goods Sold and Delivered 223 marked "Schedule A" and made part of this complaint." [Or plead according to legal effect, as: ^^ whereby plaintiff agreed — setting forth in detail his stipulations — and in consid- eration thereof defendant agreed — setting forth amount of payment, etc.] II. That plaintiff duly performed all the conditions on his part," [should add, where delivery, and payment are to he con- currently made] and on or about said [stipulated date] deliv- ered said [goods] to the defendant.^" [Non-payment as in Form 209.] 212. The Same; Alleging a Balance Due." [From Qum v. Lloyd, 41 N. Y. 349.] I. [As in Form 209 or 210.] II. That defendant is indebted to plaintiff in the sum of dollars, which is the balance remaining due for said goods after deducting sundry payments made by de- fendant. Wherefore [etc., demand for judgment]. 213. The Same; Short Form, upon an Accoxmt.^^ I. That defendant is indebted to the plaintiff in the sum " See page 6, note 31, as to which shows on its face a failure to effect of annexing a copy of comply with the statute, should al- the contract. It is essential that lege acceptance by defendant as well the annexed instrument be re- as delivery to him. Powder River, ferred to in some such way as in etc., Co. v. Lamb, 38 Neb. 339, 56 the form, in order that it may be N. W. Rep. 1019. An acceptance as considered in support of a cause of well as a delivery is essentigj. Brac- action. Booz v. Cleveland School kett Co. v. Komblum, 71 Misc. 123, Fum. Co., 45 App. Div. 593, 61 127 N. Y. Supp. 1078; Stone v. N. Y. Supp. 407; Mutual Life Ins. Browning, 51 N. Y. 211. Co. V. Robinson, 24 App. Div. 570, 2' Under such a complaint, de- 49 N. Y. Supp. 887. fendant pleading a general denial is '* See p. 17 as to the requirements entitled to show payments in excess of of pleading a contract by this method. those which plaintiff concedes. Quin '' See p. 20, and cases cited, as to v. Lloyd, supra. The form is not to be the character and effect of this alle- commended, but is undoubtedly good gation. against a demurrer. See Allen v. ™ If the contract be oral and within Patterson, 7 N. Y. 496. the Statute of Frauds, a complaint ^"Xhis form is in general use in 224 Abbott's Forms of Pleading of dollars, on an account for goods sold ^^ and de- livered by the plaintiff to the defendant at his request^ on or about the day of , 19 , [or, between two specified days] at , for which he promised to pay said sum. [That annexed hereto, marked schedule A and made a part of this complaint, is a statement of the items of said account, including the days of delivery of said goods and the prices agreed by defendant to be paid therefor.] ^* II. That no part of said sum has been paid [except the sum of ]. , Wherefore [etc., demand of judgment]. 214. The Same; Defendant Either to Pay for or Return Goods.25 I. [As in Form 210, continuing:] and defendant in con- sideration thereof agreed either to return the said [goods] many of the States and although not recommended for use in New York seems permissible under N. Y. Code Civ. Pro., § 631 (Wertheim v. Main- tenance Co., 135 App. Div. 760, 119 N. y. Supp. 909; Smith v. Irvin, 116 App. Div. 359, 101 N. Y. Supp. 904; Hentz V. Miner, 18 N. Y. Supp. 880), and has been sustained against general demurrer in Allen v. Patter- son, 7 N. Y. 476, the latter case being a haven* of refuge for weak pleadings. Omitting the words "on an account," the form is similar to that sustained in Farren v. Sher- wood, 17 N. Y. 227, and Doherty v. Shields, 86 Hun, 303, 33 N. Y. Supp. 497. But a complaint in substan- tially the same form was held in- definite and uncertain in Blanchard v. Strait, 8 How. Pr. (N. Y.) 83, and a similar complaint for commissions due plaintiff was held demurrable in Sampson v. Grand Rapids School Co., 55 App. Div. 163, 66 N. Y. Supp. 815. See, also, Forms 117, 234 and 423, and notes. ^' A complaint when it refers to an account, should indicate the nature and character of the claim, and the period within which it arose. Farcy V. Lee, 10 Abb. Pr. (N. Y.) 143. ^* It may be advisable to annex the schedule to the complaint. A bill of items of the account, if not already annexed, is obtainable by defendant as a matter of right. N. Y. Code Civ. Pro., § 531; Smith v. Irvin, supra. At common law, the declaration itself need not particularize the articles, if they are described in an annexed schedule. Kinder v. Shaw, 2 Mass. 398. When separate accounts between the same parties are separate causes of action, and, therefore, must be separately stated, see Secor v. Stur- gis, 16 N. Y. 548. ^* Adapted from Fraser v. Statso Mills, 143 App. Div. 520, 128 N. Y. Supp. 277. Goods Sold and Delivered 225 within days after delivery [or otherwise according to agreement], or to pay plaintiff therefor the sum of dollars. II. That defendant did not return said [goods] within said period of days,^^ and has paid no part of said sum of ' dollars. Wherefoee [etc., demand of judgment]. 214a. Where Amotmt and Character of Goods were to be Detennined by Inspection under Rules of Associa- tion.27 I. That at all times hereinafter mentioned plaintiff and defendant were members of [the National Hardwood Lumber Association] an association of various dealers in [lumber], and having certain rules for the measurement, inspection and re-inspection of [lumber] which the members of said association mutually agreed to abide by in their dealings with each other. II. [Sale and delivery of goods as in previous forms.] III. That prior to the delivery of said [lumber] by plaintiff - to defendant the same was duly inspected as to amount and character by one of the inspectors of said association, duly authorized by the rules thereof to make such inspection, and which inspection by said rules is binding upon both seller and buyer [unless a re-inspection is ordered, as hereinafter alleged]; that upon said inspection it was certified by said inspector that [state character of certificate]. IV. That after the [lumber] was so delivered to defendant, a re-inspection thereof was ordered by him in accordance with the rules of said association permitting the same; that said rules provide that if upon such re-inspection the result in favor of the party ordering the re-inspection shall be a reduction of less than four per cent in monej^ value from the ^ Or otherwise show that de- Lumber Co. v. Smith, 216 N. Y. 753, fendant's option to return the prop- where plaintiff recovered on a di- erty has fully expired. Id. rected verdict, no question of plead- ^ From complaint in Louisville ing being directly involved. 226 Abbott's Forms of Pleading original inspection, the original inspection shall be binding, and the party so ordering the re-inspection shall pay the expense thereof. V. That said re-inspection so ordered by defendant re- sulted in a reduction in his favor of less than four per cent in money value from the original inspection. VI. That no part of said purchase price has been paid. Wherefore [etc., demand for judgment]. 215. For Price after Delivery upon Trial. ^^ I. That on or about the day of , 19 , at , at the defendant's request, plaintifif delivered to him [briefly specify goods], and defendant, in consideration thereof, agreed to return the same to plaintiff on or before the day of , 19 , or, in case of failure so to return the same, to pay plaintiff the sum of dol- lars therefor. II. That defendant did not return said goods, on or before said day of ,19 ,^' and has paid no part of said siun of dollars. Wherefore [etc., demand of judgment]. 216. The Same, Where Defendant Refuses to Accept Delivery.^" [/ and II as in Form 655.] ^ See, also, Form 214. mit proof of sale without delivery. If the agreement contemplated a Gross v. Ajello, 132 App. Div. 25, present sale, with a privilege of return 116 N. Y. Supp. 380. The objection within a specified period, the latter is may be waived, and will be treated aa merely a condition subsequent which an immaterial variance unless de- plaintiff need not mention. See fendant shows himself misled. But- p. 21 as to pleading condition subse- ler Bros. v. Hirzel, 87 App. Div. 462, quent. 84 N. Y. Supp. 693, aff'd 181 N. Y. "* Plaintiff's acceptance of a return 520. of the goods after such date would be This action is in reality foF breach matter of affirmative defense. of contract to buy, the plaintiff "> It is advisable that the form here having an election to treat the goods given be used when defendant has aa belonging to defendant and suing not accepted delivery, for an allega- for the purchase price. Van Brocklen tion of aak and delivery will not per- v. Smeallie, 140 N. Y. 79, 35 N. E. Goods Sold and Delivered 227 III. That defendant refused to accept or pay for said goods; that thereupon plaintiff duly notified defendant that he elected to treat said goods as belonging to defendant, and thereupon stored the same for his account and subject to his order and so notified said defendant; that said goods remain so stored and subject to defendant's order. Wherefore [etc., demand for judgment]. 217. The Same, Where Payment was to be Made by Means other than Payment of Money." I. [As in Form 210, continuing:] in payment for which defendant promised and agreed to deliver to plaintiff [state vfhat and when to be delivered]. II. That prior to the commencement of this action [or, if delivery was to be made on a day certain, on said day of , 19 ,] plaintiff duly demanded of defendant that he deliver said [property] to plaintiff, but defendant has failed and refused so to do. ^- III. That said [property] is of the reasonable value of dollars. Wherefore [etc., demand of judgment]. 218. The Same, Alleging the Contract and Acceptance of Partial Performance.'^ I. [As in Form 211.] Rep. 415. But for plaintiff to so v. Moore, supra; Pub. Co. v. S. S. elect does not satisfy the require- Co., 148 N. Y. 39; Weil v. Tyler, 38 ment of the Statute of Frauds that Mo. 545; Parr v. Johnson, 37 Minn, there be an acceptance of the goods. 457. See Brackett Co. v. Komblum, 71 ^' If the contract is entire, the Misc. 123, 127 N. Y. Supp. 1078. buyer is not bound to accept or pay " Adapted from Otto Gas Engine for any quantity unless all of it has Works V. Moore, 139 App. Div. 298, been delivered before the expiration 123 N. Y. Supp. 934. Of course of the contract period; payment for a plaintiff may, at his election, sue portion delivered before the contract upon the same facts for -conversion period expires does not operate as a or replevin. waiver of complete performance. See '2 Demand is essential in order that Hilton & Dodge Lumber Co. v. Sizer plaintiff may recover money value of & Co., 137 App. Div. 661, 122 N. Y. the chattel. Otto Gas Engine Works Supp. 306. 228 Abbott's Forms of Pleading II. That on or about the day of ,, 19 , plaintiff deUvered to defendant [450 tons of said iron], and the said defendant received and accepted the same, without objection that the amojint thereof was not the full amount called for by said contract, and as a full compliance and performance by plaintiff of the aforesaid agreement.'^ [Non-payment as. in Form 209. \ 219. For Price to be Paid in Installments; Sale of Stock and Fixtures of Store and Good Will. I. That on or about the day of , 19 , plaintiff sold and delivered to the defendant, at his request, [the stock and fixtures of the drug store. No. , in street, in , and transferred and conveyed to the de- fendant the good will of the business theretofore carried on at said place by said plaintiff], for which defendant agreed to pay plaintiff the sum of dollars, in equal quarterly payments of dollars each, on the days of the months of thereafter. II. That defendant has not paid any part of the install- ments of dollars, coming due respectively on the days of [except the sum of dollars, paid generally upon account thereof].'^ Wherefore [etc., demand of judgment], 220. Sale to Defendant, and Delivery to a Third Person. ^^ That on or about the day of , 19 , at " Adapted from the pleadings be- The non-payment of an install- fore the court in Logan v. Berkshire ment when due is not a breach of the Apartment Asso., 3 Misc. 296, 22 entire contract so as to permit an N. Y. Supp. 776; Scherjckeu. Rowell, action to be brought to recover the 3 Abb. N. C. (N. Y.) 342; Albany, future installments. See McCready etc., Co. V. Lundberg, 121 U. S. 451. v. Lindenborn, 172 N. Y. 400; Whar- '= In an action upon a contract for ton v. Winch, 140 N. Y. 287. the payment of money in install- '« See a-f orm of complaint sustained ments, all installments due at the against demurrer, alleging sale to time of bringing the action must be another on credit on defendant's included. Jex v. Jacob, 7 Abb. N. C. promise to be answerable. Klein v. (N. Y.) 452, 19 Hun, 105. Long, 16 App. Div. 301, 44 N. Y' Goods Sold and Delivered 229 , the pkintiff sold to the defendant, ^^ and delivered to one M. N., at the request of the defendant [continue as in Form 209 or 210].^^ 221. Sale and Delivery, Anticipating and Avoiding Defense of Pa3mient.^' I. [Allege sale as in Form 209 or 210] Supp. 613; Canfield v. Stewart, 151 App. Div. 740, 136 N. Y. Supp. 229. " When goods claimed to have been sold to defendant are delivered to a third person, for the exclusive use of such person, his authority to receive them, and their delivery to him, are material and issuable facts, which the plaintiff, in an action against the purchaser, is bound to prove upon the trial; but the pleader may allege merely that the goods were sold and delivered to the de- fendant. See Frazer & Haughton, Lim., V. Mott, 118 App. Div. 791, 103 N. Y. Supp. 851; Thayer v. Cable, 19 App. Div. 558, 46 N. Y. Supp. 850, aff'd 165 N. Y. 632. 58 This form would be wholly in- appropriate when the sale as well as delivery had been made to the third person, and the defendant had merely promised to pay the indebtedness. See Cox v. Halloran, 64 App. Div. 650, 72 N. Y. Supp. 302; Booth v. Newton, 46 App. Div. 175, 61 N. Y. Supp. 727. A single count in a com- plaint cannot properly be framed so as to seek to hold defendant both as promisor and guarantor. Part- ridge V. Haley, 20 N. Y. Wkly. Dig. 320. 5' The pleader will do well to be cautious how he undertakes to an- ticipate and avoid in his complaint a probable defense; as his privilege to do so musT be claimed rather from the indulgence of the court shown by reason of the exigencies of the plain- tiff's (?ase, than from any distinct authority in the Code. In pleading in equity the conlplain- ant is allowed to anticipate a defense by setting it up in the charging part of the biU as a pretense of the de- fendant, and averring matters in opposition to it. Stafford v. Brown, 4 Paige (N. Y.), 88. And this was the common practice in New York prior to the Code. MorreU v. Mor- reU, 3 Barb. (N. Y.) 236; Hetfield v. Newton, 3 Sandf. Ch. (N. Y.) 564; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; see Equity Rule 5 of 1847. The complainant, however, was not bound to do so, even where the defense was the Statute of Limi- tations. Radcliff V. Rowley, 2 Barb. Ch. (N. Y.) 23. Under Code practice his right to do so is not settled. The plaintiff is not bound to anticipate a defense, and he may prove any facts con- stituting a common-law avoidance of new matter in defense, although not pleaded by him. Seely v. Seely, 164 App. Div. 650, 150 N. Y. Supp. 66; Arthur v. Ins. Co., 78 N. Y. 462; Met. Life Ins. Co. v. Meeker, 85 id. 614; Keeler v. Keeler, 102 id. 30; Van Demark v. Van Demark, 13 How. Pr. (N. Y.) 372. Whether, in all cases, he is entitled to anticipate a defense may not be considered as settled. In Everett v. Conklin, 90 N. Y. 645, it was held that plaintiff, 230 Abbott's Fobms of Pleading II. That on or about the day of , 19 , the defendant delivered to plaintiff, as in payment of said suing to recover the amount paid on an accommodation note for defend- ant, might also allege in his com- plaint that if defendant sought to prove that the note was to be applied on a land contract, that he, plaintiff, had rescinded that contract. The court say: "We can see no impro- priety in such a mode of pleading." So, in Herrington v. Davitt, 155 App. Div. 831, 140 N. Y. Supp. 944, where plaintiff had alleged new promises avoiding the Statute of Limitations, and defendant had denied their making, an issue was treated as having regularly arisen under the pleadings. But in Minzesheimer v. Brans, 1 App. Div. 324, 72 N. Y. St. Rep. 586, 37 N. Y. Supp. 261, and Butler v. Mason, 5 Abb. Pr. (N. Y.) 40, it was held that plaintiff could not properly allege matters only important by way of anticipat- ing and avoiding a defense which it is wholly optional with the defendant to interpose in his answer, or to waive, — e. g., the Statute of Limita- tions. And the same rule was ap- plied in Sands v. St. John, 36 Barb. (N. Y.) 328, 23 How. Pr. (N. Y.) 140, 29 id. 574 and note. In Bracket v.^ Wilkinson, 13 How. Pr. 102, it was held, however, that he might do so, — e. g., allege that he had been in- duced, by false representations, to receive in payment a worthless check. In Wade v. Rusher, 4 Bosw. (N. Y.) 537, it was held that in an action where the setting aside of a release or account stated is necessary to reach the relief sought, the com- plaint may, after stating the original cause of action, set forth the defense which it is anticipated defendant will interpose, with statements which avoid the defense. So in Thompson V. Minford, 11 How. Pr. (N. Y.) 273, it was held that plaintiff may amend his complaint, in a proper case, by adding allegations necessary to show securities or evidences of debt, taken for the cause of action set out in the original complaint, — -e. g., a foreign judgment recovered upon it. This is not adding a new count. On either view a complaint alleg- ing such facts is regarded as good upon demurrer. Roth v. Palmer, 27 Barb. (N. Y.) 652; CampbeU v. Wright, 21 How. Pr. (N. Y.) 9; At- wiU V. LeRoy, 4 Abb. Pr. (N. Y.) 438. The weight of reason and au- thority is in favor of allowing plain- tiff to plead his common-law avoid- ance, but it is to be taken with the important qualification that if de- fendant does not plead the antici- pated defense, the allegations in- tended in avoidance are left without pertinence, are not admitted by not being denied, and are so much sur- plusage. Hence, • if defendant dis- avows intent to plead that defense, he could move to strike out the antic- ipated avoidance. If, however, defendant does plead the anticipated defense, he makes the allegations in avoidance material, precisely- as in the case of pleading in equity, and he must deny them or they will stand admitted. See Defries v. Firelite, 89 Misc. 209 151 N. Y. Supp. 665. Where, therefore, an anticipated defense can be met by a common- law avoidance and needs no equi- table relief, then if it is expected that defendant will go to issue in any case and contest a recovery, frame the complaint as if the defense did not Goods Sold and Delivered 231 purchase price for said goods, his promissory note due on the day of , 19 ; that said note was duly presented for payment on its said due date, but the same was not paid, and is now in plaintiff's possession,*" and will be produced and surrendered at the trial of this action.*^ III. That defendant has paid no part of said sum of dollars [except, etc.]. Wherefore [etc., demand of judgment]. 222. The Same, Anticipating and Avoiding Defense of an Unexpired Credit.*^ I. [Allege sale as in Forms 209 and 210, substituting as to exist, and reserve the avoidance until trial (plaintiff's right to do this is unquestionable — see, for example, Reilly v. Provost, 98 App. Div. 208, 90 N. Y. Supp. 591); but if the de- fense is supposed to be the only one, and defendant cannot under oath deny either the cause of action or the avoidance, allege the matter in avoidance in the complaint, and then if he pleads that defense he must admit or deny the matter in avoidance. This principle has been applied under the C!ode practice where plaintiff showed in his com- plaint facts raising an equitable es- toppel against the defense of the Stat- ute of Frauds; defendant's plea of the statute, without else, was held de- murrable. Daniels v. Rogers, 108 App. Div. 338, 96 N. Y. Supp. 642. The estoppel would have been equally available, however, without such anticipatory allegations. See McMahon v. Cook, 107 App. Div. 160, 94 N. Y. Supp. 1018. So, also, where the complaint charged that a release given by plaintiff to defendant of the plain- tiff's claim had been obtained by fraud, and the defendant merely pleaded the release, it was held that the answer was demurrable. Defries V. FineUte, 89 Misc. 209, 151 N. Y. Supp. 665. It is with reference to its use in these cases, and not as a theoretically approved mode of pleading, that Forms 221 and 222 are given. *" Dishonor of the note revives the original indebtedness and leaves the creditor free to elect to sue upon the debt. See Cutler v. Parsons, 13 App. Div. 376, 43 N. Y. Supp. 110; Jagger Iron Co. V. Walker, 76 N. Y. 521. *i This the defendant may probably require. See Smith v. Ferguson, 33 App. Div. 561, 53 N. Y. Supp. 1097. " The better practice may be to simply aUege a sale and delivery as for cash; if defendant pleaded the unexpired credit, plaintiff could then upon the trial avoid the credit by establishing the fraud. Heilbroun V. Herzog, 165 N. Y. 98; Wiegand v. Sichel, 3 Keyes, 122, 4 Abb. Ct. App. Dec. (N. Y.) 592; Claflin v. Taussig, 7 Hun (N. Y.), 223; Dietz v. SutcUff, 80 Ky. 650. But see contra, Kellogg V. Turpie, 93 111. 265. See, however, notes to preceding form permitting the plaintiff's anticipation and avoid- ance of an affirmative defense, and making allegations pertinent thereto 232 Abbott's Forms of Pleading payment] for which defendant promised to pay the sum of dollars days after [each] deUvery thereof. II. That in order to induce the plaintiff to allow him said credit upon such sale, defendant then falsely and fraudu- lently, and with intent to deceive plaintiff, stated to plaintiff [describe representations, as] that he, defendant, was worth a large sum, to wit, dollars, over and above all his just debts and liabilities; whereas, in truth, defendant was insolvent; that the said credit given by the plaintiff to the defendant was induced by said false and fraudulent rep- resentations, and on the faith thereof.^' III. That on or about the day of. , 19 , and immediately upon the discovery that defendant's ' said representations were untrue, plaintiff notified defendant of his election to rescind said credit, and demanded immediate payment of said sum of dollars, which was refused. Wherefore [etc., demand of judgment]. admitted unless denied in the an- HotaiUng, Id. 311]; or he may waive swer. the tort and affirm the sale, but Where goods are sold on a credit, rescind the credit; in which case he and are to be paid for by a note or will sue as for goods sold. Cases, bill, and the buyer refuses to give supra. the note or bill, the seller cannot sue " These allegations of fraud are as tor goods Bold and delivered, until not the gravamen of the suit, but go the expiration of the credit; though to show the plaintiff's right to rescind he may sue immediately upon the the credit [Wiegand v. Sichel, 3 refusal, tor damages for the breach Keyes, 122, 4 Abb. Ct. App. Dec. of the agreement to give the note. (N. Y.) 592.] The action is on the Hanna v. Mills, 21 Wend. (N. Y.) contract; but if the complaint con- 90; Yale v. Coddington, Id. 175; tain such allegations of fraud, they Corlies v. Gardner, 2 Hall (N. Y.), must be proven. N. Y. Code Civ. 345; and see Ward v. Begg, 18 Barb. Pro., § 549, though in a justice's (N. Y.) 139. court they may be treated as surplus- But where goods are sold on a age. Dodge v. Eckert, 71 Hun, 257, credit which the buyer fraudulently 24 N. Y. Supp. 1074. If no order of obtained, by false representations, arrest has been obtained by plaintiff, the seller may reclaim the goods, or the code section does not apply. may bring trespass or trover [Ash v. McGuire v. Bansher, 52 App. Div. Putnam, 1 Hill (N. Y.), 302; Gary v. 276, 65 N. Y. Supp. 382. Goods Sold and Deliveked 233 223. Implied Sale on Waiver of Tort; against One Wrong- fully Appropriating Plaiatiff's Chattels." [Sustained in Doherty v. Shields, 86 Hun, 303, 33 N. Y. Supp. 497.] I. That between the day of , 19 , and the day of , 19 , defendant became in- debted to plaintiff in the sum of dollars, for goods, wares, and merchandise, consisting of stone and materials, sold and delivered by plaintiff to defendant, and for goods, wares and merchandise consisting of stone and materials belonging to and owned by plaintiff and received by de- fendant, and for which the defendant promised and agreed to pay. II. That such goods, wares and merchandise, stone and materials, were reasonably worth the sum of dollars; that defendant has paid on accoxmt therefor the sum of dollars, but that no part of the balance of dollars has been paid. III. That an itemized statement of the goods, wares, merchandise and materials, is as follows [here were set forth the items] : Wherefore [etc., demand of judgment]. 224. On Implied Contract of Sale, Arising out of Defend- ant's Failure to Perform. ^^ I. That on or about the day of , 19 , at ** Under this pleading plaintiff was Nevertheless it may be more de- allowed to prove that he had loaned sirable, in order to avoid a claim of certain goods to defendant, which the surprise q^t the trial, to plead the real latter had promised to return on de- transaction. mand, but had wrongfully appro- See the notes at beginning of this priated. It was held by the court chapter and to Form 232, o^i the that plaintiff could waive the tort point that proof of facts raising a and sue in this form of action for legal obligation to pay is not ad- the value of the proijerty, and that it missible under a complaint merely was unnecessary as against an objec- alleging a special contract between tion at the trial to allege the partic- the parties. ular transaction which gave plaintiff *^ See Tabak v. Fettner, 139 App. the right to treat the appropriation as Div. 248, 123 N. Y. Supp. 982. a sale and delivery. It would not be proper to use a 234 Abbott's Forms of Pleading , plaintiff delivered to defendant [state goods,] then the property of plaintiff, in advance payment for defendant's agreement to [state what, as:] do certain work for plaintiff consisting of [briefly describe,] said work to be so performed by defendant [within days thereafter]. II. That defendant has wholly neglected and refused to [do any portion of said work]. III. That said [goods] so deUvered by plaintiff to defend- ant are reasonably worth the sum of dollars, for which sum defendant is indebted to plaintiff on account of his said receipt and retention of said [goods]. Wherefore [etc., demand for judgment]. 225. For Price of Goods Sold, with Allegation of Fraud in Inducing Sale.^^ I. [Allege sale as in Forms 209 and 210] form of complaint on a special con- tract of sale of the goods; proof of the real transaction would not be com- petent upon proper objection. See notes on this point at beginning of this chapter, and to Forms 209, 223, and 232, with authorities cited. « Under N. Y. Code Civ. Pro., § 549, giving to plaintiff the right to an arrest "where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability." Voorhees Rubber Mfg. Co. v. McEwens, 111 App. Div. 541, 97 N. Y. Supp. 942. The Code section has no applica- tion to an action founded on a subsequent liability not directly in- volved in the making of the con- tract, e. g., damages for wrongful discharge under the alleged fraud- ulent contract of employment. Novatsky v. Koslofif, 214 N. Y. 12. The complaint is adapted from Hoboken Beef Co. v. Loefifel, 23 Abb. N. C. 93, 4 N. Y. Supp. 798, where it was held that the action is upon con- tract, and no damages resultant from fraud need be alleged, since plaintiff's purpose in incorporating them into the complaint is merely that he may have the statutory right of arrest and a body execution. See, for a similar holding that the action is on contract, Taylor v. Kleim, 130 App. Div. 615, 115 N. Y. Supp. 445; Cit. Nat. Bank v. Wetsel, 96 App. Div. 85, 88 N. Y. Supp. 1079; McDonough V. Dillingham, 43 Hun, 493. See, also, Form 119. The plaintiff cannot recover upon the complaint as it stands unless he proves the fraud. Code Civ. Pro., § 549; Polo V. D'AchUle, 157 App. Div. 294, 142 N. Y. Supp. 506. It has been held, however, that if no order of arrest has been issued the Code provision does not apply, and the allegation of fraud may be dis- regarded as surplusage. McGuire v. Bausher, 52 App. Div. 276, 65 N. Y. Supp. 382, Goods Sold and Delivered 235 II. That defendant was guilty of a fraud in contracting and incurring the said habiUty to plaintiff; that on or about said day defendant, with the intent to deceive and defraud plaintiff, and to induce plaintiff to sell and deliver to him the aforementioned goods, falsely and fraudulently represented to plaintiff that [briefly specify the character of the representa- tions, as he owned premises known as No. street, in the city of , in the county of , and that said property was free and unincumbered]. III. That the plaintiff relied upon said representations and believed them to be true, and was induced thereby to make the sale hereinbefore alleged. IV. That said representations were false, and were known by defendant to be false; that the defendant did not [own said property] at the time of said representation to plaintiff, nor at any time thereafter, [nor did said defendant own any real property in said city].^' V. That no part of said sum of dollars has been paid.''* Wherefore [etc., demand of judgment]. 226. For Necessaries Furnished to Defendant's Wife or Infant Children/^ [Complaint sustained in Wickstrom v. Peck, 155 App. Div. 523, 140 N. Y. Supp. 570.] ^° " It is not suflScient to charge the *' The fact that no damages are fraud in the language of § 549; the alleged as resultant from the fraud facta constituting the fraud must be indicates the pleader's purpose to alleged. Harrisburg Pipe Bending declare on contract. McDonough v. Co. V. Welsh, 26 App. Div. 515, 50 DilUngham, 43 Hun, 493. N. Y. Supp. 299; see, also, Beadleston " For complaint on the husband's & Woerz V. Furrer, 102 App. Div. liability for necessaries furnished hia 544, 92 N. Y. Supp. 879. (Compare, wife while they are living in a state of however, ElweU v. Russell, 29 App. separation, see Form 227. Defend- Div. 436, 51 N. Y. Supp. 964.) Under ant may be liable through the holding this ruling, the complaint will be out of the woman as his wife, al- practically identical in this respect though the marriage was void, with one charging fraud and deceit. Frank v. Carter, 219 N. Y. 25. *'A further decision in this case is reported in 163 App. Div. 608, 148 N. Y. Supp. 596. 236 Abbott's Forms of Pleading I. That between the day of , 19 , and the day of , 19 , at , the plaintiff furnished to one Y. Z., then the wife [or, infant son, or, infant daughter] of the defendant, at the request of said Y. Z., as defendant's agent," necessaries ^^ for her use, and of which she then stood in need, to wit, [specify — or, specifically set forth in Schedule A hereto annexed and made a part of this complaint], which were of the reasonable value of dollars and which said sum defendant promised and agreed to pay to plaintiff therefor.®' II. That no part of said sum of dollars has been paid. Wherefore [etc., demand of judgment]. 227. Against Husband, for Necessaries Supplied to Wife who is Living Apart from Him.'^^ [Adapted from Hatch v. Leonard, 165 N. Y. 435; The liability of the husband for goods furnished his wife when they are living together, is reviewed in Wanamaker v. Weaver, 176 N. Y. 75. If the articles are used for family consumption, such as groceries, the husband is presumed liable although the articles were ordered by the wife. See Bradt v. Shuil, 46 App. Div. 347, 61 N. Y. Supp. 484. When the husband is primarily liable, no action wUl lie against the wife upon her promise to pay made after goods were furnished. See Thrall Hospital v. Caren, 140 App. Div. 171, 124 N. Y. Supp. 1038. '' Facts showing the agency im- plied by law are admissible under this allegation. Hatch v. Leonard, 165 N. Y. 435. Of course the com- plaint should in some such way negative the inference that the goods were sold to the wife on her own credit. A complaint charging money loaned to the defendant's wife for purchase of necessaries, for which the defendant husband is indebted jointly with her, is insufficient. Ellenbagen V. Slocum, 66 Misc. 611, 121 N. Y. Supp. 1110. ^^ The goods should be alleged to be necessaries. Cousins «. Boyer, 114 App. Div. 787, 100 N. Y. Supp. 290. As to what are "necessaries" within the legal application of the term, see Wickstrom v. Peck, 163 App. Div. 608, 148 N. Y. Supp. 596, and cases reviewed. *' An allegation of sale and de- livery to the husband, defendant, con- taining no reference to defendant's wife or child, is 'sustained by proof of the furnishing of necessaries to the wife. Hatch v. Leonard, 165 N. Y. 435; Jacobs v. Scott, 53 Cal. 74. The use of the form as above given, will, however, obviate a probable claim of surprise, and tend to narrow the issufe. '■* In the Hatch case, supra, though Goods Sold and Delivered 237 Constable v. Rosener, 82 App. Div. 155, 81 N. Y. Supp. 376.] « I. That between the day of , 19 , and the day of , 19 , plaintiff supplied and furnished to one B. Z. certain goods, particularly described in Schedule A, hereunto annexed and made a part of this complaint; that such goods were necessaries,'^ and were of the respective value set forth in said schedule, aggregating the sum of dollars. II. On information and belief, that at all times aforesaid said B. Z. was the wife of the defendant, [and lived separate and apart from him without fault on her part, and defendant, at said times, did not supply his said wife with such goods, nor furnish her with an amount of money adequate for her support and commensurate with his means and her station in life]." III. That on or about the day of , 19 , plaintiff notified defendant that he had supplied said goods as aforesaid, and demanded payment therefor, but defendant refused to make such payment, and no part of said sum has been paid to plaintiff. Wherefore [etc., demand of judgment]. not without a strong dissent, the *' The effect of these bracketed court field that a complaint framed allegations is to anticipate the hus- to charge defendant on the theory of band's defense, and to require his the wife's agency would admit evi- denial of the facts which plaintiff dence to establish that she was living must establish in order to overcome apart from defendant, that said such defense. They may be omitted goods were necessaries, and that de- without impairing the sufficiency of fendant did not supply her with them, the pleading; in fact, the complaint nor with money to buy them. may be in the usual form for goods " Aff'd 178 N. Y. 687, without sold to the husband. Hatch v. opinion. Leonard, 165 N. Y. 435. To insert " See note on this point to Form them may serve to clarify the issue 226. and the burden of proof. See Far- A father is liable for the funeral quharson v. Brokar, 67 Misc. 277, expenses of his infant child, notwith- 124 N; Y. Supp. 476; Quinlan v. standing his separation from his wife Westervelt, 65 Misc. 547, 120 N. Y. who has the custody of the child. Supp. 879. Gobber v. Empting, 72 Misc. 10, See note to Form 221, on anticipat- 129 N. Y. Supp. 4. ing and avoiding an expected defense. 238 Abbott's Forms of Pleading 228. Against Wife who has Personally Charged Herself for Necessaries Sold. [It is not necessary or desirable to plead such a cause of action in other than the usual form for goods sold and delivered to the defendant, as in Form 209 or 210; it cannot he doubted thai such a pleading alleges the ultimate pleadable facts, and that a successful claim of surprise at the proof offered to sustain it cannot be made.] *' 229. Against Husband and Wife, for Goods Sold for her Separate Estate.^' I. That between the day of , 19 , and the day of , 19 , at , the plaintiff furnished to the defendant, W. Z., who was then, and still is, the wife of the defendant Y. Z.,^" [materials used for the building of a house for her, upon, and for the benefit of,*^ ''When husband and wife are living together, the presumption will be that the husband alone is liable. Lindhohn v. Kane, 92 Hun, 369, 36 N. Y. Supp. 665; Wenz v. McCann, 107 App. Div. 557, 95 N. Y. Supp. 462. But the wife may, by special agreement, obligate herself to pay for such necessaries. Valois v. Gardner, 122 App. Div. 245, 106 N. Y. Supp. 808; Tremeyer v. Tumquist, 85 N. Y. 516; Ruhl v. Heintze, 97 App. Div. 442, 89 N. Y. Supp. 1031. If the goods are not necessaries within the rule (see note on this point to Form 226), the wife has no au- thority to obligate the husband, and she alone is primarily liable. 59 This form is rendered useless in New York by Code Civ. Pro., § 450, providing that the husband is not a necessary or proper party in any ac- tion affecting her separate property. See, also, 7 Abb. N. C. (N. Y.) 249, 14 id. 94, 1 N. Y. Civ. Pro. R. 360, 62 How. Pr. (N. Y.) 331. But the form is presented, as well as citations of New York cases under the com- mon law and the earlier statutes, as of value in those jurisdictions where the husband is still a necessary party. «° In the absence of statutory reg- ulation, the husband should be joined with the wife as defendant. Where the action concerns her sep- arate property, the wife may siw alone; but it is only when the action is between herself and her husband that she can be svM alone. Smith v. Scribner, 12 How. Pr. (N. Y.) 501; Francis v. Ross, 17 id. 561. Com- pare, however, Walker ti. Swayzee, 3 Abb. Pr. (N. Y.) 136; Arnold v. Rin- gold, 16 How. Pr. (N. Y.) 158. "' The form above given is adapted from that employed in Dickerman v. Abrahams, 21 Barb. (N. Y.) 551, which was based upon the estab- lished principles, relative to the rights and habilities of married women, which prevailed prior to the acts of 1848 and 1849. The weight of the decisions is, that those acts en- larged only the power of married Goods Sold and Delivered 239 her own separate lands and premises, situated in the town of , in the county of ].^^ II. That the said defendant [wife] in consideration that the plaintiff would furnish such materials as aforesaid, then and there promised the plaintiff that she would pay for the same dollars [or, as much as they should be reason- ably worth], out of her own separate property, and did ap- point the same to be paid for out of her separate property.®^ III. That such [materials so furnished were reasonably worth the sum of dollars, which] sum became due to the plaintiff from said defendant [wife] on or about the day of , 19 , but no part thereof has been paid [except the sum of, etc.]. IV. On information and behef, that the premises above mentioned and hereinafter more particularly described, were, at and before the day of , 19 , [which was the day of the marriage of defendants], and since have been and now are, her sole and separate property; and the same are worth about dollars, and are bounded and described as follows: [description of premises].^* women to hold and convey their ported by Francis v. Ross, 17 How. separate estate, but did not operate Pr. (N. Y.) 561. to subject them to new remedies on As to the proper mode of pleading their personal contracts.' Gates ». in an action on a contract under the Brower, 9 N. Y. (5 Seld.) 205; Switzer acts of 1860 and 1862, compare Cos- V. Valentine, 4 Duer (N. Y.),. 96; terw. Isaacs, 16 Abb. Pr. (N. Y.) 328; Cobine v. St. John, 12 How. Pr. Baldwin v. Kimmel, Id. 353; Young (N. Y.) 333; Coon v. Brook, 21 Barb. v. Gori, 13 id. 13, note; Thompson v. (N. Y.) 546; Dickerman v. Abrar Sargent, 15 id. 452; Aitken v. Clark, hams, Id. 551; Yale v. Dederer, Id. 16 id. 328, note. 286; Lovett v. Robinson, 7 How. Pr. '^ Alleging a sale and delivery to the (N. Y.) 105; Phillips w. Hagadon, 12 husband, instead of alleging a sale and id. 17; Wotkyns v. Abrahams, 14 id. delivery to the wife on the faith of or 191. Nor altfr the mode of pleading. for the benefit of her separate estate. See Phillips v. Hagadon, 12 How. is not sufficient. Arnold v. Ringold, Pr. (N. Y.) 17. Compare, however, 16 How. Pr. (N. Y.) 158. Walker v. Swayzee, 3 Abb. Pr. '^ Merely alleging a sale on the (N. Y.) 136, where a different view credit of her estate, is insufficient on of the operation of those statutes demurrer. Bass v. Bean, 16 How. Pr. was taken by the New York Com- (N. Y.) 93. mon Pleas Court. '* This allegation, which was not in The above form is further sup- the original complaint in Dickerman 240 Abbott's Forms op Pleading Wherefore, the plaintiff demands judgment " that the separate property aforesaid of the defendant [wife] be charged with the payment of the said sum of dollars, with interest from , together with the costs of this action, and that the said property be appHed to the payment of the same, and that a receiver be appointed to take possession of her said separate property, and dispose of it, or of so much thereof as shall be necessary to satisfy the same. 230. Against an Infant, for Necessaries Supplied.^^ I. That on or about the day of , 19 [or, between, etc.], at the request of the defendant and upon his promise to pay therefor, plaintiff [continue, as though agamst an adult defendant, for goods sold, services rendered, hoard and lodging furnished, or the like] ; " that the aforesaid [goods] were of the reasonable value of doUars.^^ V. Abrahams, 21 Barb. (N. Y.) 551, was held necessary in Sexton v. Fleet, 6 Abb. Pr. (N. Y.) 8; Cobine v. St. John, 12 How. Pr. (N. Y.) 333; Coon V. Brook, 21 Barb. (N. Y.) 546. For other averments showing a separate estate, see forms in Chapter II, under title Married Women. '* This demand of judgment is con- formable to the directions given in Cobine v. St. John, 12 How. Pr. (N. Y.) 333; Coon v. Brook, 21 Barb. (N. Y.) 546. See, also, Yale v. Dederer, 22 N. Y. 450, 31 Barb. (N. Y.) 525, 18 N. Y. 265. °' The allegations contained in paragraphs II and III are not essen- tial in those jurisdictions which per- mit a continuance of the common- law form of declaration. That such form is proper (framed exactly as though defendant were an adult, and leaving to him the affirmative de- fense of infancy) is held in Goodman V. Alexander, 165 N. Y. 289; Lynch V. Johnson, 109 Mich. 640; Locke v. Smith, 41 N. H. 346; Trainer v. Trumball, 141 Mass. 527; Thrall v. Wright, 38 Vt. 494; Guthrie v. Mur- phy, 4 Watts (Pa.), 80. If the complaint alleges defend- ant's infancy, anticipatory of that defense, the additional facts neces- sary to avoid such defense must be also alleged, viz., that the claim is based upon necessaries suppHed, and (although Goodman v. Alexander, supra, holds it to be unnecessary) it seems desirable also to allege the fur- ther fact of no responsible parent. See note to Form 221, on pleading facts in anticipation and avoidance of a probable defense. " If for money loaned, there must be a specific allegation that it was furnished for the purchase of neces- saries, stating their general char- acter. The lender is bound to also allege and show that it was^so ap- plied. Gray v. Sands, 66 App. Div. 572, 73 N. Y. Supp. 322. °* The complaint should in no event be based upon the agreed price; the reasonable value must be Goods Sold and Delivered 241 II. That the defendant is an infant, and that said [goods] were necessary to the proper care and comfort of the de- fendant, and of a character suited to his position in Ufe. III. That the defendant has no parent, or other person standing in the place of a parent, who is able to pay for the said [goods]. IV. That no part of said amount has been paid. Wherefore [etc., demand of judgment]. 231. Against one who Became Liable by Novation.*" [Allege sale and delivery to original purchaser, as in Form 209 or 210.] That thereafter said [goods] were by said [original pur- chaser] delivered to the defendant, who, in consideration thereof agreed with plaintiff to pay to him the sum of dollars therefor; that in consideration of such promise on the part of defendant, plaintiff then and there agreed to discharge said [original purchaser] from his obligation to pay for said [goods], and said [original purchaser] agreed that the said [goods] should belong to defendant. [Allege defendants non-payment as in Form 209.] Wherefore [etc., demand for judgment]. alleged, and furnishes the only basis 87 App. Div. 366, 84 N. Y. Supp. for a recovery. Gray v. Sands, supra. 806. If the infant has given a check or a "' From Inman i>. Burt Co., 124 note in payment, the action should App. Div. 73, 108 N. Y. Supp. 210, nevertheless i be based upon the aff'd without opinion in 195 N. Y. goods sold. See Murphy v. Holmes, 558. CHAPTER VII COMPLAINTS IN ACTIONS FOR WORK, LABOR AND SERVICES (and MATERIALS INCIDENTALLY FURNISHED) |For Forms of Complaints in Actions fob Wrongful Dischabqe prom Employment, see Chapter XXIV.] ' PAGE 232. General form 244 233. The same, pleading a written contract 247 234. The same, as upon an account 248 235. On a special contract, completely fulfilled by plaintiff 248 236. The same, where the contract was fulfilled by an assignee 250 237. For value of services rendered under circumstances which raise an implied promise of payment 250 238. To recover value of services rendered under express agreement void under the statute of frauds 251 239. For work, and materials incidentally furnished 252 240. The same, as upon an account 253 241. For an installment of wages or salary 253 242. For extra work done in course of an employment 254 243. For overtime services; rendered under terms of contract made be- tween defendant and labor union 254 244. For services rendered to third person at defendant's request 255 245. Where agreement to compensate by will has been broken 256 246. The same, another form, with more specific allegations, and partial provision made by will 256 247. For wages, where plaintiff was prevented from performing 257 248. By employee, prevented by illness from completing agreement of service 258 249. For part performance of contract, where full performance was pre- vented by defendant 259 250. Breach of agreement to pay for services in specific property 260 251. Where services were to be paid for, partly in cash and partly in profits 261 252. For services rendered in effecting a sale of property 261 253. For services as salesman, under agreement to pay commission on sales 262 254. By salesman, to recover amount of drawing account 263 255. For commissions of stockbroker 264 ' See note at the beginning of that chapter, showing distinction between the two species of action. 242 Work, Labor and Services 243 PAGE 256. By real estate broker, for commissions on sale; sale consummated, or plaintiff's customer accepted .- 264 257. The same, where sale has not been consummated 265 258. The same, for procuring mortgage loan 266 259. The same, where loan was not made 267 260. The same, for commissions on exchange of property . 268 261. The same, where defendant prevented plaintiff completing, by nego- tiating directly with plaintiff's customer 268 262. The same, under agreement for compensation dependent on price secured 269 263. As factor 270 264. For insurance brokerage and for premiums paid by plaintiff 270 265. By an artist, for painting portrait 270 266. For editing a newspaper 271 267. The same, for editing or compiling a book 271 268. By proprietors of a newspaper or periodical, for advertising 271 269. By advertising agent, for services and disbursements 272 270. By an architect 273 271. By an attorney 273 271a. The same, balance due on numerous matters 275 272. The same, where client refuses to prosecute action,- after retainer. . 275 273. The same, more detailed allegations of services, under retainer and modified retainer 276 274. The same, for services as referee 277 275. By a physician 278 276. By an undertaker 279 276a. By undertaker; against husband, for funeral expenses of wife or minor child 279 276b. The same, against personal representatives of decedent 280 277. By an auctioneer 281 278. By a dentist '. 281 279. By master plumber, for work done in a city 282 280. By "private detective 282 281. For services rendered under contract for rescuing vessel from peril of sea 282 282. For procuring and imparting information 283 283. Against corporation, for services as an oflScer 284 284. For tuition and books, to defendant's minor son, at boarding school 285 285. For board and lodging 286 286. For stabling and care of horses 286 287. For freight, against consignor 286 288. For freight, against consignee 287 289. For cold storage '. . .' .'. 287 290; By a parent, for services of a nrinor child 288 291. By married woman, for services 289 292. By husband, for services rendered by wife 289 293. For services rendered to defendant's child 289 294. On building contract fuUyperf ormed ; contract not specifically pleaded 290 244 Abbott's J'orms of Pleading 295. The same, another form, contract specifically pleaded, with claim for extra work , 291 296. The same, contract fully performed, except as modified, with claim for extra work 292 297. .Allegation of facts showing an excuse for non-performance 295 298. The same, another allegation of facts showing excuse 206 299. Allegation of full performance, except that architect's certificate was unreasonably refused 296 SOO. Allegation of waiver of condition 297 301. The same, another form; allegation of express waiver of a stipulation in the nature of a condition precedent 297 302. Allegation of substantial performanfeti : 298 303. For extra work and materials furni^ed, in connection with a build- ing contract : . J^i-. 299 304. Independent collateral agreement, omitted from written agreement 300 232. General Form.^ [From Gordon v. House of N. Y. Supp. 685.] ' I. That between the Childhood, 83 Misc. 74, 144 day of 19 , and ' The essential allegations are: (1) that plaintiff was employed, (2) that he performed the services, (3) their value or agreed price, and (4) non-payment. See Hippie v. Melachrino, 159 App. Div. 741, 144 N. Y. Supp. 966. The above form is appropriate in cases where the services were rendered under a writ- ten agreement not under seal, pro- vided the contract has been fully performed by the plaintiff [Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843; Kronau v. Weisberg, 151 App. Div. 355, 135 N. Y. Supp. 404; Weibert v. Hanan, 200 N. Y. 328; Schulze V. Farrell, 142 App. Div. 13, 126 N. Y. Supp. 678; Farron v. Sherwood, 17 N. Y. 227; Hosley v. Black, 28 id. 438; Hurst v. Litchfield, 39 id. 37'f; Higgins v. Newton, etc., R. Co., 66 id. 605; N. Y. News Pub. Co. V. National S. S. Co., 148 id. 39; Farley v. Browning, 15 Abb. N. C. (N. Y.) 301.] But this is only where nothing remains but the duty on the part of the defendant to pay the stipulated price (cases supra). The written contract must, however, be produced at the trial. Clark v. Smith, 14 Johns. (N. Y.) 326. If de- fendant is left in the dark as to the identity of the claim in suit, under such a pleading, he should move for a bill of particulars. N. Y. News, etc., Co. V. National S. S. Co., 148 N. Y. 39. If the complaiilt is based solely upon an express contract, plain- tiff will not be allowed to recover upon a quantum meruit for extra services outside of the contract. Anderson v. Dickerson, 72 Hun, 556, 26 N. Y. Supp. 112. See Forms 235-6, for complaints setting forth the special contracts. ' Under this complaint plaintiff is entitled to prove an employment by the promoter of a corporation and its subsequent ratification by de- fendant corporation. Case, supra. It would have been better, however, to have pleaded the real facts. Work, Labor and Services 245 the day of , 19 / at , the plain- tiff rendered services to the defendant, at his request,^ * as [state briefly their nature.^ See forms following]. II. That for said services the defendant agreed to pay plaintiff dollars per month,'^ and that the same were reasonably worth said sum.* ■* The time when the services were rendered must be alleged, or defend- ant may have the complaint ordered amended in that respect. Peters v. Happert, 159 App. Div. 829, 144 N. Y. Supp. 1068. * Details as to time, place or char- acter of request will not be required in a pleading. Smythe v. Cleary, 127 App. Div. 555, 111 N. Y. Supp. 872. The fact that the plaintiff has ren- dered valuable services to the de- fendant for which the defendant has refused to pay him, constitutes no cause of actioii. The services must have been rendered in pursuance of an agreement, express or implied, that they were to be paid for. Samel- son V. Mayer, 139 App. Div. 6, 123 N. Y. Supp. 418. Such an agree- ment ji^ill be usually implied when the services were of a beneficial na- ture, and defendant knowingly ac- cepts the benefit. Bassford v. Swift, 17 Misc. 149, 39 N. Y. Supp. 337; Moulin V. Columbet, 22 Cal. 509; Maltby w. Harwood, 12 Barb. (N. Y.) 473; Livingston v. Ackeston, 5 Cow. (N. Y.) 531; Williams v. Hutchinson, 3 N. Y. (3 Comst.) 312; Griffin v. Potter, 14 Wend. (N. Y.) 209; Brunner v. Stout, Hard. (Ky.) 225; Winston v. Francisco, 2 Wash. (Va.) 187; Lee v. Welch, 2 Stra. 792, 1 Selw. (N. P.) 45; and cases, infra. And where a promise to pay, made subsequent to the completion of the services, is shown, it must also be alleged, or be fairly inferable from the provisions of the contract, that the services were rendered at the defendant's request. Hurst v. Cres- son, etc., Co., 86 Hun (N. Y.), 189; . Bartholomew v. Jackson, 20 Johns. (N. Y.) 28; Frear v. Hardenbergh, ■ 5 id. 272; Force v. Haines, 2 Harr. (N. J.) 385; Parker i'. Crane, 6 Wend. (N. Y.) 647; Comstockf . Smith, 7 Johns. (N. Y.) 87; Hayes v. Warren, 2 Stra. 938; Lampleigh v. Brathwait, 1 Smith's Lead. Cas. 67, and note; Spear «. Downing, 12 Abb. Pr. (N. Y.) 437; Winch v. Farmers' Loan & Trust Co., 11 Misc. 390, 32 N. Y. Supp. 244. " A complaint alleging services "as manager, adviser, agent and repre- sentative" states but a single cause of action with a description of the various relations which plaintiff bore to the defendant. Ehrich v. Dessar, 130 App. 110, 114 N. Y. Supp. 271. The nature of the contract must be set forth. Simpson v. Grand Rapids School Co., 55 App. Div. 163, 66 N. Y. Supp. 815. ' Such an agreement for periodical payments of wages during the con- trail period makes the contract 8epai;able, and an action lies to re- coyif one or more installments; but if plaintiff has been discharged dur- ing an incomplete period, he must recover the value of the services ren- dered either in an action for wrongful discharge, or upon quantum meruit. See Walsh v. N. Y. & Ky. Co., 88 App. Div. 477, 85 N. Y. Supp. 83. See notes to Form 610. ' Plaintiff may claim both an 246 Abbott's Forms of Pleading [Or, if there was no stipulation whatever as to amount of compensation, may only allege: agreed compensation and the value of his services, and should not be required to elect between them at the trial. Byrne v. Gillies Co., 144 App. Div. 677, 129 N. Y. Supp. 602; Waterman v. Waterman, 81 Wise. 17. Nor in advance of the trial. Rubin V. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843; Goetz v. Van Au, 12 N. Y. Civ. Pro. R. 104. He may recover on proof of either. Keister v. Rankin, 29 App. Div. 639, 51 N. Y. Supp. 634; Morse v. Can. Knitting Co., 154 App. Div. 351, 139 N. Y. Supp. 634. A complaint is defective which fails to show whether plaintiff sues on an agreed price, or quantum meruit. Samelson v. Mayer, 139 App. Div. 6, 123 N. Y. Supp. 418. See notes to Form 209 under Goods Sold as to the practice of uniting allegations of quantum meruit with those asserting an agreed price, in the same count. Such practice has met the court's approval in Stokes v. Taylor, 104 N. C. 394, 10 S. E. Rep. 566; Roberts v. Demens Wood, etc., Co., Ill N. C. 432, 16 S. E. Rep. 415. An allegation of an agreed price only does not preclude plaintiff from recovering as upon a quantum meruit for the value of the services, if de- fendant's employment as alleged is established. Lockhart v. Hamlin, 190 N. Y. 132; Postal Tel. Co. v. Assoc. Press, 175 App. Div. 538, 162 N. Y. Supp. 4; Sturtevant v. Fiss, etc., Co., 173 App. Div. 113, 159 N. Y. Supp. 399; Baumann v. Manh. Cons. Brewing Co., 97 App. Div. 470, 89 N. Y. Supp. 1088. At most it is a variance which is immaterial unless defendant is misled. Sussdorf V. Schmidt, 55 N. Y. 319. It wiU be better, however, to allege in the double manner, as in the form. See Shirk V. Brookfield, 77 App. Div. 295, 79 N. Y. Supp. 225. But where an action is based upon an express employment, recovery may not be had in the absence of any proof of employment, but wholly rested upon the obligation implied by law from an acceptance of de- fendant's services; the two theories are inconsistent. Dennison v. Mus- grave, 29 Misc. 627, 61 N. Y. Supp. 188; Minuth v. Barnwell, 106 App. Div. 437, 94 N. Y. Supp. 639. See also Miller v. Schloss, 218 N. Y. 400. For form of complaint on an implied obligation see Form 237. An allegation of agreed price is not supported by proof of value of serv- ices. Fuld V. Kahn, 4 Misc. 600, 24 N. Y. Supp. 558; Wernli v. Col- lins, 87 la. 548; but if plaintiff sues on a quantum meruit a specific con- tract may be proved fixing the price and the price so specified then be- comes the value. Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp- 843; Hollander v. Kaufmann, 172 App. Div. 218, 158 N. Y. Supp. 195. In common-law States no recovery can be had under the common counts for damages for breach of a special contract. Bean v. Elton, 44 111. App. 442. It is not improper to allow amendments to the common counts by filing a special count founded on a breach. Mt. Hope Cem. Assoc, v. Weidenmann, 139 lU. 67, 28 N. E. Rep. 834. If both common counts and a special count on the contract are filed, if the evidence only supports the special count, and fails to show value, no recovery on the common Work, Labor and Services 247 II. That said services were of the reasonable value of dollars.^] III. That no part of the sum of dollars for the aforesaid period has been paid,^" although said sum has been due and payable since the day of , 19 . Wherefore [etc., demand of judgment]. 233. The Same, Pleading a Written Contract. I. [Allege the making and annexing of the contract as in Form 4l or, plead the terms of the agreement according to its legal effect] ^^ II. [Allege plaintiff's performance of the agreed services, either specifically, or in the statutory form, viz.:] That plaintiff has duly performed all the conditions of said agreement on his part.^^ III. [Allege defendant's breach, as:] That defendant has failed to pay any portion of said sum of dollars for said services." Wherefore [etc., demand for judgment]. counts can be had. Wyatt t/. Herring, v. Eisle, 76 App. Div. 304, 78 N. Y. 90 Mich. 581, 51 N. W. Rep. 684. Supp. 396. If the express agreement is void '" Non-payment must be alleged, imder the Statute of Frauds, plain- Dickinson v. Tysen, 125 App. Div. tiff's proper form of action is on a 735, 110 N. Y. Supp. 269; Babcock quantum meruit for the services ac- v. Anson, 122 App. Div. 73, 106 tually rendered. Booker v. Heffner, N. Y. Supp. 642; Bacon v. Chapman, 95 App. Div. 84, 88 N. Y. Supp. 499. 85 App. Div. 309, 82 N. Y. Supp. 545; See Form 238, posi. Brickey v. Irwin, 123 Ind. 51, 23 ' Babcock v. Anson, 122 App. Div. N. E. Rep. 694; and cases cited in 73, 106 N. Y. Supp. 642. notes to form 209 under Goods Sold. Plaintiff may sue on a quantum In an action on quantum meruit it meruit, if the express contract has is not incumbent on plaintiff to prove been violated by defendant, or per- non-payment. Ralley v. O'Connor, formance excused, and the work 71 App. Div. 328, 75 N. Y. Supp. either wholly or only partly per- 925, aff'd 173 N. Y. 621. formed. See Braas v. Village of " See p. 17, and cases cited. Springville, 100 App. Div. 197, 91 " See p. 18 and p. 20, and notes to N. Y. Supp. 599; Wolf v. Howes, 20 Form 296. N. Y. 197; Boyd v. Vale, 84 App. "If the written agreement does Div. 414, 82 N. Y. Supp. 1001; Day not specify the time of payment. 248 Abbott's Forms of Pleading 234. The Same, as upon an Account.^^ [From complaint in Farron v. Sherwood, 17 N. Y. 227.] i* I. That the defendant is indebted to the plaintiff on an account in the sum of dollars for work, labor and services performed for the defendant, at his special instance and request, at the city of , by the plaintiff, at divers times between the day of , 19 , and the day of , 19 ,* in and about [state character of service briefly, as dressing, preparing and delivering, to defendant certain building stones, for de- fendant's dwelling on street, in said city of ]." II. That the said work, labor and services were reason- ably worth the sum of dollars, which said sum de- fendant agreed to pay therefor. III. That the defendant has not paid the plaintiff the said smn, nor any part thereof. Wherefore [etc., demand of judgment], 235. On a Special Contract, Completely Fulfilled by Plain- tiff." I. That on or about the day of j 19 , it is to be made only on the comple- of items upon his demand therefor, tion of the work. Delehanty v. It may therefore be more desirable Dunn, 151 App. Div. 695, 136 N. Y. to annex a schedule, and refer to it Supp. 193. as made a part of the complaint, " See notes to Forms 117, 213 and briefly specifying the details of the 423, where the complaint is similarly work done. See Forms 117, 213 and framed upon an account. 423, and notes. " In this case plaintiff's recovery " See first note to Form 232, as upon an express contract was sus- to plaintiff's right to declare generally tained, it appearing that nothing re- without referring to the contract, mained to be done under its provi- If the plaintiff has a claim for extra sions other than the payment of the work done independently of the writ- stipulated price. The form is further ten contract, it may be stated as a supported by Wertheim v. Main- separate cause of action for services tenance Co., 135 App. Div. 760, 119 and materials, etc., as in the preced- N. Y. Supp. 909; see also cases cited ing forms. in notes to Forms 117, 213 and 423, If the contract is set forth and for- and also see first note to Form 232. bids extra work unless expressly au- " Under Code Civ. Pro., § 531, thorized, the plaintiff, to recover the defendant must be given a bill for any special work done, should Work, Labor and Services 249 at , plaintiff and defendant entered into an agree- ment in writing, wherein and whereby plaintiff agreed [set forth substance of his agreement] and in consideration whereof the defendant agreed [set forth his agreement]. [Or, of which the following is a copy — copy contract — or, a copy whereof is hereunto annexed marked "Schedule A" and made a part of the complaint.] II. That the plaintiff duly performed all the conditions on his part.^* III. That on or about the day of , 19 , allege either a special employment, or, if he relies on the defendant's ac- ceptance of it, should show that it was so distinct from the work called for by the contract that the latter might have been accepted without the former. Duncan v. Com. of Miami, 19 Ind. (Kerr) 154. It was held at common law that where a contract was uncertain, the pleader must aid it by alleging what he deepaed its legal effect. Thus, if no time was stated, it must be aven-ed that the performance was to be in a reasonable time, or upon request. Osborne «. Lawrence, 9 Wend. (N. Y.) 135, and see Coonley v. Anderson, 1 Hill (N. Y.), 519. Under the Code this is unnecessary, for that which the law impUes upon the facts need not be alleged; but the allega- tion of performance must meet any terms which the law reads into the contract. Pope v. Terre Haute, etc., Co., 107 N. Y. 61. The only respect in which the contract needs to be aided in pleading is in alleging a consideration, where this is not suf- ficiently expressed or implied in the contract. " This is a sufficient averment of perfonnance of conditions precedent. N. Y. Code Civ. Pro., §533; see page 20, supra. In an action on a contract by which the plaintiff had bound himself to do certain acts, and to procure third parties to do certain acts, he may, under § 533, allege performance by averring that he has duly performed, etc., on his part; and adding that those on whose behalf he acted have also performed, is unnecessary. Rowland v. Phalen, 1 Bosw. (N. Y.) 43. This short method of pleading performance is permissive merely. Where the plaintiff does not aver per- formance in this short mode, but undertakes to set forth the facts showing performance, he must aver them with the certainty required by the rules of pleading before the Code. See general note on alleging per- formance of conditions precedent, p. 20. If the contract has been modified, it is not sufficient to use the above allegation of performance, adding, "except" in such and such particulars, setting out the modifica- tions. In such case the plaintiff should plead the modified contract. See same note; also Form 296. Such an allegation of performance is not sustained by proof that plain- tiff has been excused from full per- formance. See same note. 250 Abbott's Forms of Pleading the plaintiff demanded of the defendant payment of the sum of dollars [being the last installment] in said contract mentioned. IV. That no part of the same has been paid [except, etc.]. Wherefore [etc., demand of judgment]. 236. The Same, where the Contract was Fulfilled by an Assignee. I. [Adapt from preceding Form 235.] II. That thereafter and on or about the day of , 19 , said M. N., with defendant's consent, duly assigned said agreement, and all his rights thereunder, to plaintiff, who thereupon and thereby assiuned the com- pletion and fulfillment thereof. III. That up to the time of said assignment, the assignor had duly performed all the conditions of the contract on his part, and that since said assignment, the plaintiff duly per- formed all the conditions thereof on his part." [Continue as in preceding form.] 237. For Value of Services Rendered xmder Circumstances which Raise an Implied Promise of Pa3rment.^'' [The facts must be alleged upon which the defendant would be held to an obligation to pay the value of the benefits conferred and accepted; the following facts will serve as a precedent to guide the pleader:] I. That at all the times hereinafter mentioned defendant was the owner of premises known as No. street in the City of , and plaintiff was an architect regularly engaged in the practice of his profession therein. "The assignee may allege per- ^"A complaint alleging a special formance by saying that up to the contract of employment is not sus- time of the assignment the assignor tained by proof of facts raising an had duly performed, on his part, all implied obUgation to pay for benefits the covenants of the contract, and accepted. See Minuth v. Barnwell, that afterwards the plaintifif duly 106 App. 437, 94 N. Y. Supp. 649; performed the conditions imposed Dennison v. Musgrave, 29 Misc. 627, by the contract on the assignor. Gal. 61 N. Y. Supp. 188. Steam Nav. Co. v. Wright, 6 Cal. 258. Work, Labor and Services 251 II. That prior to the day of , 19 , plaintiff had prepared plans for [the remodeling of] the build- ing upon defendant's said premises; that on said day at defendant's request plaintiff delivered said plans into the possession of defendant. III. That defendant retained said plans, and subsequently had said building remodelled in accordance therewith; that thereby defendant accepted said plans and received the benefit thereof. IV. That plaintiff's services in the preparation of said plans were reasonably worth the sum of dollars. Wherefore [etc., demand for judgment]. 238. To Recover Value of Services Rendered under Ex- press Agreement Void under the Statute of Frauds." I and II. [May adapt from Form 246.] III. That it was mutually and orally agreed between plaintiff and said [deceased] that plaintiff would render such services in return for, and that [deceased] should make com- pensation therefor, by a provision in his last will and testa- ment [devising to plaintiff his farm at , consisting of about acres — or, otherwise according to express agreement]. IV. [Adapt from Par. Ill of Form 245] V. That the defendant claims and asserts that said agree- ment between plaintiff and said [deceased] is void because the same was not made in writing, and has refused to recog- nize or admit the same as binding upon him for such reason; that plaintiff concedes that such agreement is unenforcible for such reason, and has heretofore presented to said de- fendant a claim against the estate for the reasonable value '' A complaint framed for the re- rendered or goods delivered under covery of damages for breach of a con- the void contract. Banta v. Banta, tract void under the Statute of Frauds 103 App. Div. 172, 93 N. Y. Supp. will not, against objection, permit a re- 393; Reed v. McConnell, 133 N. Y. covery for the value of the services 425. 252 Abbott's Fobais of Pleading of said services as aforesaid, which said claim defendant has heretofore rejected and refused to pay.^^ Wherefore [etc., demand for judgment]. 239. For Work, and Materials Incidentally Furnished. ^^ I. That at the City of , between on or about the day of . , 19 , and the day of ,19 , both dates inclusive, the plaintiff, at the special instance and request of the defendant, performed certain work, labor and services and incident thereto fxu-- nished certain materials [state character of service, as:] in the making of wearing apparel for said defendant. ^^ II. That said work, labor and services performed and ^* If plaintiff has served a com- plaint for damages for the breach of the agreement, to which defendant has pleaded the Statute of Frauds, this paragraph may be changed to allege those facts. See Banta v. Banta, supra. Inasmuch as the de- fense of the Statute of Frauds could be waived, plaintiff should allege defendant's intention to avail him- self of the statute as a defense. See Thacher v. N. Y., etc., R. Co., 76 Misc! 60, 136 N. Y. Supp. 342. *' This is the complaint in Cerlian t>. Bacon, 155 App. Div. 118, 140 N. Y. Supp. 47. The theory of the action is, that the materials furnished were merely incident to the service contracted for. The distinction between a contract of sale and one for services in produc- tion or manufacture is important by reason of the fact that the provision of the Statute of Frauds as to sales does not apply to the latter, and the provision as to contracts by their terms not to be performed within one year, is not likely to apply to the former. If the contract of a portrait painter were deemed a con- tract of sale because the property in the canvas and the oils and pig- ments thereon must sooner or later pass to the sitter, the statute might be fatal to an oral contract by reason of the amount of the payment agreed. The New York rule is to inquire whether the claimant's skill was the thing bargained for; if so, the allega- tion should be of services and ma- terials furnished, and not of a sale. Passaic Mfg. Co. v. Hoffman, 3 Daly (N. Y.), 495; Warren Chem. Co. v. Holbrook, 118 N. Y. 586, 593. Under a complaint for goods sold, a recovery for work and labor in producing them cannot be had against objection and without amendment. Schrimpton & Sons v. Dworsky, 21 N. Y. Supp. 461, 2 Misc. 123, 49 N. Y. State Rep. 29. Nor under such a pleading can a recovery be had merely upon proof of materials found by him and used in services rendered. Collerell v. Appsey, 6 Taunt. 322. "* Where an action is for work done, with an added charge for ma- terials incidentally furnished in the performance of such work, so that both items go to constitute but 9. single cause of action, this should be made to appear. Work, Labor and Services 253 materials furnished were reasonably worth, and defendant promised and agreed to pay therefor, the sum of dollars.-' III. That no part of said sum has been paid although payment has been duly demanded. 240. The Same, on an Account. As in Form 234, inserting at the *, in [here indicate briefly the nature of the services, — e. g., painting the defendant's house in said town, or, in making a carriage for the defend- ant, or, in repairing the machinery in the mill of the de- fendant in said town], and for materials furnished by this plaintiff in and about said work, on the like request [may annex and refer to schedule of the labor and materials, as in Form 117, continuing also as there shown], 241. For an Installment of Wages or Salary. ^^ I. That on or about the day of , 19 , at , plaintiff agreed to render services to defendant as [bookkeeper] beginning on the day of , 19 , and defendant agreed in consideration thereof to pay plaintiff at the rate of dollars per [mgnth payable on the first of every month for the preceding month — or otherwise according to fact]. II. That pursuant to said agreement plaintiff duly ren- dered services as such bookkeeper during the month of ,19 , but defendant has paid no part of the sum of dollars agreed to be paid therefor on the first day of , 19 . Wherefore [etc., demand for judgment]. ^^ It is improper to compel plain- action arises upon the failure to pay tiff to elect whether he will proceed a particular installment. See Leed upon the agreed price or the reason- v. Johnston, 63 App. Div. 340, 71 able value. Byrne v. Gillies Co., 144 N. Y. Supp. 579. All the past due App. Div. 677, 129 N. Y. Supp. installments must, however, be in- 602. eluded. Id.; LoriUard v. Clyde, 122 ™ Under a contract for payment N, Y. 41; Jex v. Jacob, 19 Hun by installments a separate cause of (N. Y.), 105, 7 Abb. N. C. 452. 254 Abbott's Forms of Pleading 242. For Extra Work done in Course of an Employment." [Complaint sustained in Searl v. Am. Tobacco Co., 12 Misc. 201, 33 N. Y. Supp. 271.] I. [Allege the character of employment of the plaintiff by defendant as in preceding Forms 232, etc.] II. That thereafter, and between the day of , and the day of , 19 , while plaintiff was so employed by defendant and attending to his said duties [as assistant bookkeeper,] at the request of the defendant, plaintiff did certain extra work in addition to that for which by his said contract of employment he was employed to do [and for which defendant promised and agreed to pay to plaintiff the reasonable value thereof]. III. That said extra work consisted of [briefly state and show its character to be outside of the stated regular duties under the employment,] and was reasonably worth the sum of dollars. IV. That no part of said sum has been paid. Wherefoke [etc., demand of judgment]. 243. For Overtime Services; Rendered under Terms of Contract Made Between Defendant and Labor Un- ion. ^^ I. That dm-ing the times hereinafter mentioned plaintiff was a member in good standing of the Union, a labor organization located and conducted at II. That on or about the day of , 19 , defendant entered into a contract in writing with said 2^ In Merzbach v. Mayor, etc., of of the contract is fairly debatable, N. y., 163 N. Y. 16, plaintifif, who the employee may comply with the was a public employee of a city, requirement under protest and subse- sued it for notary's fees; held, that quently recover the value of the extra since a notary's fees are due by work. See Borough Const. Co. v. operation of law, the defendant had City of N. Y., 200 N. Y. 149. the burden of establishing that plain- ^ From complaint in Keysaw v. tiff's services were voluntary. Brewing Co., 121 App. Div. 58, 105 When the question whether the N. Y. Supp. 562. service required is within the terms Work, Labor and Services 255 Union, whereby it was expressly agreed [state what, as] in consideration that said Union should supply from its mem- bers all workmen desired by defendant, that the defendant should employ the members of said Union, and pay each such workman at the rate of dollars per week for six days' work of ten hours per day, and for any extra or additional service performed by such member thereof for defendant he agreed to pay -such member at the rate of cents per hour. III. That during the period between the day of , 19 , and the day of , 19 > in pursuance of said agreement, plaintiff, in addition to work- ing for defendant for ten hours per day during each week- day, also performed extra and additional service [state nature thereof] for the defendant dvu-ing a total of hours, which at the said rate of cents per hour for over- time work amounted to the sum of dollars, which said sum defendant promised and agreed to pay to defend- ant but of which no part has been paid. Wherefore [etc., demand for judgment]. 244. For Services Rendered to Third Person at Defend- ant's Request.^' That at , and between the day of , 19 , and the day of , 19 , plaintiff per- formed certain work, labor and services consisting of [specify] for one M. N., at the request of the defendant and upon defendant's promise to pay therefor the sum of dollars [or, at the rate of or, otherwise], and which said services were of the reasonable value of said sum. [Non-payment as in other form^.] 2' An express agreement to pay 596, 116 N. Y. Supp. 776; MacGuire must be shown if the services were v. Hughes, 126 App. Div. 637, 111 not for the benefit of the defendant, N. Y. Supp. 153, aff'd 207 N. Y. 516. or for one for whom he was bound to Form adapted from Mason v. provide. Van Goosbeek v. U. S. Hulbert, 166 App. Div. 370, 151 Lace Curtain Mills, 132 App. Div. N. Y. Supp. 941. 256 Abbott's Forms of Pleading 245. Where Agreement to Compensate by Provision in Will has been Broken.^" I. [State services, as in next form, or adapt from other forms.] II. That said [deceased] promised and agreed to make suitable compensation to plaintiff for such services by a provision for plaintiff's benefit in his will. III. That on the day of , 19 , said [deceased] died intestate [or, leaving a last will, wherein no provision was made for plaintiff, which said will was duly admitted to probate on the day of , 19 , by the Sm-rogate of the County of ] and defendant was on the day of , 19 , duly appointed [executor of said will] by said Surrogate.^' IV. That said services so rendered by plaintiff to said [deceased] were of the reasonable value of dollars, no part whereof has been paid. Wherefore [etc., demand of judgment]. 246. The Same ; Another Form with more Specific Allega- tions, and Partial Provision Made by Will.'^ [From Gillan v. O'Leary, 124 App. Div. 498, 108 N. Y. Supp. 1024.] «' I. That on or about the day of , 19 , '° That this action will He, upon remedy. See complaints under that qxumtum meruil, see Bair v. Hager, subject. 97 App. Div. 358, 90 N. Y. Supp. 27, The measure of damages is the and cases cited; Chambers v. Boyd, value of the services rendered, not 116 App. Div. 208, 101 N. Y. Supp. the value of the expected testamen- 486; Bovee v. Barrett, 116 App. Div. tary provision. Lane v. Calby, 95 20, 101 N. Y. Supp. 322; Lasher „. App. Div. 11, 88 N. Y. Supp. 465. McDermott, 173 App. Div. 79, 158 "See other forms of allegation, N. Y. Supp. 708. The Statute of under Executors and Adminis- Limitations runs only upon the trators, Forms 63, etc. death of the employer. Bair «. Hager, '^ See notes to preceding form; supra. also see Form 238, where express Specific performance may lie, de- agreement is void because oral, pendent, however, upon the inade- '^ Held, that the complaint alleged quacy or impossibility of the legal an implied rather than an express contract. Work, Labor and Services 257 one M. N. requested plaintiff to go and reside with him for the purpose of acting as a companion and to take care of him in his decUning years; that plaintiff thereupon, at the special instance and request of said M. N., went to him and took up her residence with him, and thereafter from said day of , 19 , to the death of said M. N. on the day of , 19 , acted as his companion and housekeeper, cook, secretary and companion. II. That the services so performed by plaintiff for said M. N. were reasonably worth the sum of dollars per month. III. That to induce plaintiff to render such services with- out immediate compensation, said M. N. represented to plaintiff and promised that he would make suitable provision for her in and by his last will and testament, as full compen- sation for such services, and plaintiff performed said services relying upon such statements and promises. IV. [Allege death of M. N., and defendant's appointment as executor, as in Form 64-] V. That by the provisions of said will, plaintiff was given the sum of dollars only ; that the services so rendered by plaintiff to said M. N., as aforesaid, aggregated in value the simi of dollars, and that there is now due and owing from the estate of said M. N. to plaintiff the sum of dollars. VI. [Allege presentation and rejection of claim, when neces- sary; see Form 63.] 247. For Wages where Plaintiff was Prevented from Per- forming.'* I. That on or about the day of , 19 , defendant hired plaintiff for the term of , to render '* Unless the contract has been of the employer's busmess, in the terminated by plaintiff's discharge, absence of any stipulation to the plaintiff may recover wages, not- contrary. Magida v. Wiesen, 114 withstanding he has been prevented App. Div. 866, 100 N. Y. Supp. from working because of suspension 268. 258 Abbott's Forms of Pleading service as , and agreed to pay him therefor at the rate of dollars per [day,] and plaintiff accepted said employment and agreed to render such service for said period. II. That on or about the day of , 19 , the premises wherein plaintiff was performing his said services were destroyed by fire [or otherwise set out the cause for nonr-performance]. III. That during the period from said day of , 19 , to the day of , 19 , plaintiff remained at all times able and wilHng to continue to render said services to defendant under said agreement of employment, as defendant well knew; that during said period defendant's business as , wherein plaintiff was employed, was wholly suspended. IV. That defendant has not paid plaintiff any portion of the wages accruing under said agreement during said period of weeks, and which amovmt to dollars. Wherefore [etc., demand for judgment]. 248. By Employee Prevented by Illness from Completing Agreement of Service.^' . I. [Allege special contract as in Form B47.] II. That on or about the day of , 19 , plaintiff became ill, and was thereby disabled for a period of from continuing to discharge his duties under said employment; that when plaintiff was recovered from said ilbiess, to wit, on the day of , 19 , he duly tendered his services to defendant, but defendant declined to receive them and elected to treat plaintiff's employment as terminated. III. That defendant has not paid plaintiff for his services rendered imder his said agreement, for the period of , between [state], which were of the value of dollars. Wherefore [etc., demand for judgment]. ''Under such circumstances the App. Div. 35, 93 N. Y. Supp. 287; value of services rendered may be Green v. Gilbert, 21 Wise. 395. recovered. Gaynor v. Jonas, 104 Work, -Labor and Services 259 249. For Part Performance of Contract, where full Per- formance was Prevented by Defendant.^* I. That on or about the day of > 19 , at ' , plaintiff and defendant entered into an agreement [annex a copy if in writing, as in Form 4, or plead according to legal effect, as:] wherein and whereby plaintiff agreed to en- grave for and furnish to defendant certain bonds and at- tached coupons, and defendant agreed to pay therefor the sum of dollars. II. That plaintiff duly entered upon the execution of said agreement on his part, and [set forth his partial performance, as] prepared models therefor and engraved and printed a proposed form of bond and coupons and on or about the day of , 19 , submitted proofs thereof to defendant, and [set forth the way in which defendant prevented further performance, as] requested that defendant should furnish plaintiff with further information necessary to the completion of the form of bond and coupon and should indi- cate its approval of said proofs or make directions in regard thereto. III. That more than a reasonable time has elapsed since plaintiff submitted said proofs and requested such informa- tion and directions, but that defendant has neglected and declined to furnish plaintiff with said information and to give plaintiff any. directions with regard thereto, without which information and directions plaintiff, as defendant well knew, would be and is wholly imable to proceed with the completion of said agreement on his part. IV. That plaintiff duly performed all the conditions of said agreement on his part so far as permitted by defendant, and imtil its refusal as aforesaid. V. That the services so performed by plaintiff for de- fendant were of the reasonable value and agreed price of " Adapted from Franklin Bank N. Y. Supp. 34, in neither of which Note Co. f . Mackey, 158 N. Y. 140, cases was any question of pleading and Electro-Tine Eng. Co. v. Am. directly involved. Hand. Co., 130 App. Div. 561, 115 260 Abbott's Forms of Pleading dollars, no part of which has been paid although plaintiff has duly demanded of defendant that it make payment thereof." Wherefore [etc., demand for judgment]. 250. Breach of Agreement to Pay for Services in Specific Property.'* I. [Allege rendition of services as in general form, No. 232, or as in other forms giving allegations in particular employ- ments, continuing) for which services defendant promised and agreied to give plaintiff in payment therefor [state specific property, as] one hundred shares of the common stock of the Company, upon the rendition of such service. II. That more than a reasonable time has elapsed since the completion of plaintiff's services, as aforesaid, but defendant has neglected and refused to deliver to plaintiff said shares of stock, or any part thereof, although plaintiff has heretofore duly demanded its delivery to him. III. That said stock is of the value of dollars [or, if the result would he more favorable to plaintiff: That said services were of the reasonable value of dollars]. Wherefore [etc., demand for judgment]. " Under this theory of action, the compIaiHt alleges an indebted- plaintiff may recover on a quantum ness for services in money, and the meruit, if more favorable to hiui proof shows a breach of defendant's than any price which may have been obligation to pay therefor in prop- stipulated; or, plaintiff may sue for erty. Id. Yet it will be better, to damages for breach of the contract avoid surprise, to plead as in the of employment, claiming as damages above form. the amount of profits he might have Specific performance, to compel earned upon full performance. the delivery of the agreed securities, '■" A breach of defendant's promise or other property, will not lie if the to deliver securities or other property value of the property can be estab- turns the obligation into one for the lished, and in the absence of other payment of money. N. Y. News special circumstances. See Clements Pub. Co. V. Nat. S. S. Co., 148 N. Y. v. Sherwood, 106 App. Div. 325, 95 39. ' N. Y. Supp. 766, aff'd 187 N. Y. There is no material variance when 521. Work, Labor and Services 261 261. Where Services were to be Paid for, Partly in Cash, and Partly in Share of Net Profits.''' I. That on or about the day of , 19 , at , the defendant employed the plaintiff as [spec- ify], and promised to pay him a salary of dollars per , and also to pay and allow him an additional sum amoimting to [one-third] of the net profits of dlefend- ant's business, and that such^employment should continue for the period of from the day of , 19 ; that plaintiff accepted such employment, upon said terms. II. That pursuant to such agreement, plaintiff entered upon his said employment, and continued therein until [the expiration of the said term]. III. That defendant has paid to plaintiff the said salary of ' dollars per [or otherwise, according to fact], but no part of the profits of defendant's business have been paid to him by defendant [except the sum of dollars]. IV. On information and behef , that during the time of said employment, the net profits from defendant's business, amounted to upwards of dollars, of which [one- third] thereof is due and payable by defendant to plaintiff. Wherefore [etc., demand of money judgment], 252. For Services Rendered in Effecting Sale of Property.^" I. That between the day of , 19 , and '" An action to recover compensa- Such an action may be referable, tion measured^ by a certain proper- as involving the examination of a tion of the profits of the employer's long account. See Boisnot v. Wilson, business is an action at law, even 95 App. Div. 489, 88 N. Y. Supp. 867. though an accountirig may be neces- An agreement to pay compensation sary to determine the amount of the in part or wholly measured by the net profits. Lindner v. Starin, 128 net profits of a business does not of App. Div. 664, 113 N. Y. Supp. 201, itself create a partnership relation, and cases cited; Hathaway v. Clen- See cases cited above, and Freeman dening Co., 135 App. Div. 407, 119 v. Miller, 157 App. Div. 715, 142 N. Y. Supp. 984; Oppenheimer v. N. Y. Supp. 797. Van Raalte, 151 App. Div. 601, 136 " From complaint in -Rhodes v. N. Y. Supp. 197. Adams, 113 App. Div. 304, 99 N. Y 262 Abbott's Forms of Pleading the day of , 19 , at the special instance and request of the defendants, plaintiff performed certain work, labor and services for the defendant in procuring the sale of certain real and personal property of defendant consisting of [briefly state]. II. That as a result of plaintiff's services, the sale of said property to one M. N. was brought about and consum- mated.*' III. That the fair and reasonable value of plaintiff's said services is the sum of dollars, which said sum de- fendant agreed to pay to plaintiff, but no part of which has been paid. WiiEREFOBE [etc., demand for judgment]. 253. For Services as Salesman, under Agreement to pay Commission on Sales. ^^ I. That on or about the day of , 19 , at , defendant employed plaintiff as [traveling] salesman, and agreed to pay plaintiff a conmiission of [fivel per cent on all sales made by plaintiff of the defendant's, goods, and a similar commission upon all orders for defend- ant's goods received by him from any tradesman residing within the cities visited by plaintiff [or, otherwise according to the fact,] during the time of plaintiff's employment. Supp. 913; the court held that a bill thereby furnished which makes the of particulars as to details of the defendant's promise to pay com- employment should be ordered, it missions a binding one. Leonardi v. appearing that the property sold Times Sq. Auto. Co., 127 App. Div. belonged to a corporation, and de- 192, 111 N. Y. Supp. 523. fendant claiming to have no knowl- <'It is not necessary (in the ab- edge of plaintiff's employment. See, sence of a special provision) that the also, complaint in McCarry v. Wiarda purchaser should have paid over the & Co., 149 App. Div. 863, 134 N. Y. purchase price, where the offer f» Supp. 667. purchase has been accepted. Smith Other forms are given in this v. Western Pac. R. Co., 154 App. Div. chapter, for services by a real estate 130, 139 N. Y. Supp. 129. broker. « An action cannot be maintained It is not necessary for plaintiff to for an accounting, but an action at allege his reciprocal agreement to law will lie for the commissions due. endeavor to make the sale; when the Chaurant v. Maillard, 56 App. Div. sale is made a consideration is 11, 67 N. Y. Supp. 345. Work, Labor and Services 263 II. That plaintiff accepted such employment, and between the day of , 19 , and the day of , 19 , continued therein and made sales of de- fendant's goods amounting to at least the aggregate sum of dollars,*' and that during said period defendant, as plaintiff is informed and believes, received orders from tradesmen residing in the cities of [which cities plaintiff visited within said period] for an aggregate of at least dollars of his said goods. III. That by reason of such sales made by plaintiff, and such orders received by defendant, plaintiff has earned commissions payable by defendant amounting to at least the sum of dollars, of which defendant has paid plaintiff the sum of dollars, leaving a balance of dollars due and owing. Wherefore [etc., demand of judgment for balance due]. 264. By Salesman, to Recover Amoxint of Drawing Ac- count.** I. That on or about the day of , 19 , at , defendant employed plaintiff as [traveling] " Plaintiff is not required to state that commissions were earned; to his sales made* or the commissions merely allege that defendant is in- earned, with accuracy, and he is debted for commissions, is insuffi- therefore not entitled to an examina- cient. Sampson v. Grand Rapids tion of the defendant to enable him Furn. Co., 55 App. Div. 163, 66 N. Y. to do so. It is sufficient to allege that Supp. 815; Mitchell v. FoUet Time the sales and the commissions earned R. Co., 142 App. Div. 687, 127 N. Y. amount "at least" to sums named. Supp. 709. See Brummer v. Cohen, 47 App. Div. *< Where the agreement is that the 470, 62 N. Y. Supp. 241; Brick v. employer is to advance a specified Shaff, 128 App. Div. 264, 112 N. Y. sum as a drawing account, to be Supp. 642. deducted from commissions to be It is held that the defendant may earned, this amounts to an absolute have a bill *of particulars, setting covenant to pay the stipulated forth the names of the persons to amount, irrespective of the amount whom plaintiff claims to have made of commissions earned. Miller v. sales. Zeigler v. Garvin, 84 App. Blaisdell Mach. Co., 83 Misc. 35, 144 Div. 281, 82 isr. Y. Supp. 769. N. Y. Supp. 792, and cases cited; It is necessary that plaintiff allege N. W. Mut. Life Ins. Co. v. Mooney, that he made sales, or otherwise show 108 N. Y. 119. 264 Abbott's Forms of Pleading salesman, and agreed, in addition to commissions to be paid upon sales made by plaintiff, to allow him a [weekly] drawing account of dollars, the amount thereof to be de- ducted from the commissions to be earned; that plaintiff accepted such employment, upon such terms, and agreed to devote his entire time to endeavoring to make sales of de- fendant's goods. II. That plaintiff has duly performed all the conditions on his part, but defendant has failed and refused to pay to de- fendant the amount of said drawing account for the weeks ending , 19 , amounting to the sum of dollars. Wherefore [etc., demand of judgment]. 255. For Commissions of Stockbroker. As in Form 232, substituting at the*, as a stockbroker, in the purchase [or, sale, or, purchase and sale], for defendant of stocks and bonds, to the amount of dollars. ^^ [Paragraphs II and III as in Form 256. By Real Estate Broker for Commissions on Sale; Sale Consummated, or Plaintiff's Customer Accepted.^" I. That at the times hereinafter mentioned glaintiff was and now is regularly engaged in business as a real estate broker, at II. That on or about the day of , 19 , defendant employed plaintiff to procure a purchaser for certain real property owned by him in the [city] of ri *' This is sufficient as against de- § 380) limits the compensation to one- murrer. Merwin ti. Hamilton, 6 half of one per cent. Defendant need Duer (N. Y.), 244. Particulars show- not plead the statute to make it ing .the specific transactions would available. Buchanan ;;. Tilden, 18 probably b^ ordered given on de- App. Div. 123, 45 N. y. Supp. 417. fendant's application, and for that '■'' A complaint is insufficient which reason it may be desirable to annex alleges an employment to sell certain a schedule of sales to the complaint. real estate, and that plaintiff pro- For services as broker, or other- cured purchasers for parts of it. wise, in procuring loans for another, See Carpenter v. Atlas Imp. Co., 132 the statute (Gen. Business Law, App. Div. 112, 116 N. Y. Supp. 454. Work, Labor and Services 265 and consisting of [briefly describe;] * that defendant promised and agreed to pay plaintiff for his s^:vices a commission of per cent upon the seUing price thereof.''' III. That thereafter plaintiff procured a purchaser for said property, to wit, one M. N., and on or about the day of , 19 , said property was duly sold by defendant to said M. N. for the sum of dollars *^ [or it was mutually agreed between defendant and said M. N. that defendant should sell and said M. N. should buy said property for the sum of dollars]. ""^ IV. That the agreed commission amounting to dollars thereupon became payable by defendant to plain- tiff but no part thereof has been paid. Wherefore [etc., demand for judgment]. 267. The Same; Where Sale has not been Consummated Because of Fault of his Principal.^" I. [As in Form 256] " Where the agreement fixes the amount of the commission and makes it payable "at the closing of the title," the broker's action is not prematurely brought if the day fixed for closing has passed but defendant has been unable to complete because of defects in his title. Morgan v. Calvert, 126 App. Div. 327, 110 N. Y. Supp. 855. If plaintiff's commissions were to be paid out of the purchase price, the complaint must allege defendant's receipt of such price. Nekarda v. Presberger, 123 App. Div. 418, 107 N. Y. Supp. 896. If the commission was payable ^'upon passing of title," its passing must be averred, or defendant's default shown. Reis Co. V. Zimmerli, 155 App. Div. 260, 140 N. Y. Supp. 3. ^ Under an allegation' of the con- summation of the sale, plaintiff will not be allowed to show that it was not consummated because of defec- tive title. See Gatling u. Central Spar Verein, 67 App. Div. 50, 73 N. Y. Supp. 496. • ■■* That the broker is in either event now entitled to his commission regardless of the vendee's subsequent default, see Alt v. Doscher, 102 App. Div. 344, 92 N. Y. Supp. 439, aff'd 186 N. Y. 566. '° When the broker has produced a person ready, willing and able to purchase on the principal's terms, he has earned his commission even though the transaction is not con- summated through fault of the prin- cipal. See Tannebaum v. Boehm, 202 N. Y. 293; Davidson v. Stocky, 202 N. Y. 423. Adapted from pleadings in Corbin V. Mech. & Tr. Bank, 121 App. Div. 744, 106 N. Y. Supp. 573; Sotsfcy v. Ginsburg, 129 App. Div. 441, 114 N. Y. Supp. 114. While a broker is excused from 266 Abbott's Forms of Pleading II. [As in Form 256, Par. II, to the end, continuing:] that the selling price for said property was fixed by defendant at the sum of dollars [cash, — or, of which dollars might remain on mortgage for years at per cent interest — and if other terms or conditions were prescribed hy defendant, allege them]. III. That thereafter and on or about the day of , 19 , plaintiff duly procured a person, one M. N., who was ready, able and willing, and offered to defendant to purchase said premises at the price named and upon the terms and conditions satisfactory to the defendant as theretofore prescribed by him. IV. [State reason for failure of sale, as:] ^^ That defendant refused to make a sale to said M. N. upon the terms and conditions and at the price so as aforesaid prescribed by him, but on the contrary demanded a price of dollars for said premises [or, imposed new and additional terms and conditions viz. — state what — ^which said M. N. declined to accept] and thereupon said M. N. withdrew his offer to purchase." V. That by reason of the premises plaintiff has earned his said commission, amounting to dollars, but defendant has refused to pay any part thereof. Wherefore [etc., demand for judgment], 258. The Same; for Procuring Mortgage Loan. I. [As in Form 256] II. That on or about the day of , 19 , showing his customer's ability if the " It is wholly insuflBcient to allege principal makes a binding contract that the sale was not consummated with the customer, the rule does not "because of the default of the de- apply if the contract made requu-es fendant"; the particular act or the purchaser to procure satisfactory omission on his part which prevented guarantees of his ability to complete. the sale must be alleged. Davis v. Bunnell v. Chapman, 175 App. Div. Silverman, 98 App. Div. 305, 90 855, 162 N. Y. Supp. 488. N. Y. Supp. 589. ''See Form 259, for allegation of defendant's defective title. Work, Labor and Services 267 defendant employed plaintiff to procure for him a [first] mortgage loan of dollars upon premises owned by him in the [city] of , consisting of [briefly describe], and as compensation for plaintiff's services in so doing agreed to. pay plaintiff a commission of per cent on the face amount of said loan [or, dollars]. III. That thereafter and on or about the day of , 19 , plaintiff procured one M. N. to agree to make said loan, and thereupon so notified defendant. rV. That said loan was thereafter made by said M. N. to said defendant upon said property,^' but defendant has failed and refused to pay plaintiff the aforesaid commission amounting to dollars. Wherefore [etc., demand for judgment]. 259. The Same; Where Loan was not Made." [I, II and III, as in Form 258.] TV. That thereafter, and after examination of defendant's title to said premises, said M. N. declined to make said loan upon the groimd [state what, showing fault to he defendant's, as:] that the defendant's title thereto was not marketable; ** [on information and belief] that defendant's title is not marketable for, the reason [briefly state]. That said M. N. was able, ready and willing to make said loan and would have made the same but for such defect in defendant's title. V. [As in Par. V, Form 257.] Wherefore [etc., demand for judgment.] '' Such an allegation does not ad- performance by plaintiff. Gatling v. mit proof that the application for the Central Spar Verein, 67 App. Div.' loan was accepted but subsequently 50, 73 N. Y. Supp. 496. the loan was declined because of In Neftelberger v. Gamer, 125 defective title. Gatling v. Central App. Div. 420, 109 N. Y. Supp. 747, Spar Verein, 67 App. Div. 50, plaintiff recovered where loan was 73 N. Y. Supp. 496. See next prevented because of liens on the form. property which defendant refused to ''* Proof of the failure of the loan remove, because of defendant's fault is not " Hevia v. Lopardo, 127 App. Div. admissible under an allegation of 189, 111 N. Y. Supp. 663. 268 Abbott's Form^ or Pleading 260. The Same; for Commission on Exchange of Property. [Sustained in Hevia v. Wheelock, 162 App. Div. 769, 148 N. Y. Supp. 165.] I. [As in Farm 256] II. That on or about , 19 , defendant employed plaintiff to negotiate and if possible bring about the exchange of a certain parcel of land, situated in the borough of Man- hattan, belonging to him, [briefly describe, by street and num- ber, or otherwise] for other real property situated in said borough, for which services defendant agreed to pay a com- mission of one per cent of the value of the land, which com- mission was afterwards mutually fixed at the sum of dollars. III. That on , 19 , plaintiff brou^t to defend- ant a person acceptable to him, to wit, one M. N., who was the owner of [describe property], and with whom defendant entered into a contract in writing for an exchange of their respective properties. ^^ IV. That defendant has refused to pay plaintiff the sum agreed to be paid for commissions. Wherefore [etc., demand for judgment]. 261. The Same; where Defendant Prevented Plaintiff Completing, by Negotiating Directiy with Plaintiff's Customer." I. That on or about the day of , 19 , plaintiff was employed by defendant as a broker to procure the acceptance of a first mortgage loan for dollars *« The broker's commissions are Nevins, 52 App. Div. 290, 65 N. Y. earned when the contract for the Supp. 84. exchange has been signed by his " From complaint in Astor Mort- principal, and a defect in the title of gage Co. v. Tenney, 157 App. Div. either party under such circum- 361, 142 N. Y. Supp. 265. stances constitutes no defense to a Under the facts here alleged, claim for the commissions. See Kelly plaintiff may also sue on gvantum V. Baker, 132 N. Y. 1; Gilder v. meruit for actual services rendered. Davis, 137 id. 504; Baumann v. WoEK, Labor and Services 269 on defendant's premises known as [describe] and upon terms specified by defendant. II. That plaintiff immediately thereupon opened negotia- tions with the Savings Bank and interested said bank therein to the extent that on or about the day of ) 19 , it offered to consider making the loan if plain- tiff would transmit a formal application signed by defendant inclosing a check for to cover costs of appraisal. III. That plaintiff immediately duly notified defendant and requested him to sign the apphcation, and to inclose his check to be transmitted to the bank to cover the expenses of appraising the property. IV. That defendant wholly failed to comply with said request, and without the knowledge or consent of, and for the purpose of preventing the plaintiff from consimamating said loan, immediately opened negotiations with the bank and obtained the same loan upon the same terms through such direct negotiations. V. That it was agreed that plaintiff should receive per cent of the amount of the loan for his commissions, and that payment of said amount has been duly demanded of defendant and refused. Wherefore [etc., demand for judgment]. 262. The Same, xmder Agreement for Compensation De- pendent on Price Secured. I. and II. [As in Form 266, ending at the *.] III. That the defendant agreed to pay the plaintiff for his services in finding and procuring a purchaser for said land, a commission consisting of [ten] per cent on any amount above dollars that might be realized upon the sale, [and an additional ten per cent on an amount in excess of dollars so realized].** ''Prom Geoghegan v. Chatterton, 154 N. Y. Supp. 321; Morgan v. 113 App. Div. 835, 99 N. Y. Supp. Calvert, 126 App. Div. 327, 110 702. See,, also, Flnkelstein v. Iro- N. Y. Supp. 855. quois Door Co., 168 App. Div. 794, Even though plaintiff does not 270 Abbott's Forms of Pleading IV. That the plaintiff found and procured a purchaser for said land, at the price of dollars, and that said land was sold by defendant to such purchaser for said sum.-*' That by reason of the premises there is now due from de- fendant to plaintiff dollars, the agreed commission on the amount above dollars which said land was sold for, and interest thereon from , no part of which has been paid. Wherefore, [etc., demand of judgment]. 263. As Factor. As in Form 232 substituting at the *, as the factor and agent of defendant, in and about the selling and disposing of [briefly specify the goods sold, and continue as in said Form]. 264. For Insurance Brokerage and for Premiums Paid by Plaintiff for Underwriting. As in Form 232, substituting at the *, as an insurance broker, in drawing and effecting policies of insurance of ships and goods [and for money advanced and paid by the plain- tiff for the defendant, at his request, for premiums on insur- ance of the said ships and goods]. 265. By an Artist, for Painting Portrait.^" I. [As in Form 232 to *, continuing:] as an artist in painting know the character or amount of the allegation that the services were consideration received by defendant, reasonably worth the amount, and it his action is at law, and he must appearing that the corporation was allege the facts showing the amount liable on the contract only because it of his claim; if necessary he should had actually made the sale to the get an examination of defendant in broker's customer, order to frame his complaint. See 5' See notes to Form 256, as to when Stewart v. Auerbach, 148 App. Div. a broker earns his commission though 222, 132 N. Y. Supp. 1021. no sale be effected. In Lyon v. West Side Transfer Co., '" Plaintiff is only required to 132 App. Div. 777, 117 N. Y. Supp. deliver or offer delivery at his studio 648, under a similar agreement as to (unless otherwise especially agreed), compensation between plaintiff and and upon payment of his claim; an officer of defendant, the court Upon non-payment, he may retain permitted a recovery on quantum the painting as security and sue for meruit, the complaint containing an the amount due. Scott v. Miller, Work, Labor and Services 271 for defendant a portrait of , and for which defend- ant promised and agreed to pay the sum of dollars for, the reasonable value of such services]. II. That on or about the day of , 19 , plaintiff completed said portrait, and notified defendant that it was ready for deUvery at plaintiff's studio in where the same had been painted. III. That plaintiff has at all times after said day of , 19 , been ready and willing to deliver said portrait to defendant upon payment of said sum of dollars [or, on payment of dollars which is the rea- sonable value of plaintiff's said services], but defendant has refused and neglected to pay said sum. IV. I'hat plaintiff has retained possession of said por- trait as security for payment to him of said sum. Wherefore [etc., demand of judgment]. 266. For Editing a Newspaper.si As in Form 232, substituting at the *, as editor, in con- ducting and editing the newspaper of the defendants, known as "The ," and in writing and preparing articles and paragraphs therefor. 267. The Same, for Editing or Compiling a Book. As in Form 232, inserting at the *, in compiling and edit- ing a certain book entitled "The ,". and in prepar- ing the same for publication, and revising and correcting the proofs thereof. 268. By Proprietors of a Newspaper, or Periodical, for Advertising.^^ I. That the plaintiff, at the times hereinafter mentioned, 114 App. Div. 6, 99 N. Y. Supp. other services; and that the furnishing 609. of articles for publication at the re- "' The early cases seemed to hold quest of the publisher is not of itself a that a stronger case is required to service for which a promise to pay raise an imphed promise on the part will be implied. of the publisher to pay for the services "^ This is to be treated as a contract of the author, than in the case of for services. Ware Bros. Co. v. 272 Abbott's Fokms of Pleading was the proprietor and publisher of the newspaper known as "The ," published in II. That on or about the day of , 19 [or, if there were several insertions, between the day of , 19 , and- the day of , 19 ], plaintiff rendered services to the defendant, at his request, in publishing in said newspaper an advertisement of the de- fendant [may briefly state its nature; or if the advertising was under a written agreement may allege its terms and compliance therewith by plaintiff]. [Continue as in Form 232, paragraphs II and III.] 269. By Advertising Agent, for Services and disburse- ments. I. That between the day of , 19 , and the day of , 19 , plaintiff rendered services to the defendants, at their request, in causing the defendants' advertisements of their products to be inserted in the fol- lowing named newspapers and periodicals: [names of papers, or annex and refer to a list]. II. That plaintiff, at defendants' request, paid out for such insertions [and incurred liability to pay] the sum of dollars, the amount of which payments, together with a reasonable sum for said services, the defendants promised to pay this plaintiff.*' III. That such services were reasonably worth the sirni of dollars, which sum, with the amount of said dis- bursements, amounting in all to dollars, became due and payable by defendants to plaintiff on the day of , 19 , but no part thereof has been paid [except the sum of dollars]. Wherefore [etc., demand of judgment]. Cortland Cart, etc., Co., 192 N. Y. be advantageously pleaded by copy. 439. See p. 17 as to method and effect of " If the contract was in writing, as such pleading, is usual in large transactions, it may Work, Labor and Services 273 270. By an Architect. I. As in Form 232, inserting at the *, as an architect in form- ing and drawing plans and specifications and making esti- mates for, and superintending the erection of, a dwelling- house known as No. , in ' street, in the city of ."■* II. That defendant promised to pay plaintiff for such services [a sum equal to three per cent of the cost of said building.] ^^ III. That the cost of said building was dollars,** and the sum of dollars became payable to plaintiff by defendant as and for his said services at the rate aforesaid. IV. That defendant has paid no part of said sum of dollars [except, etc.]. Wherefore [etc., demand of judgment]. 271. By an Attorney. [Sustained in Genet v. De Graaf, 27 App. Div. 238, 50 N. Y. Supp. 442; Smythe v. Cleary, 127 App. Div. 555, 111 N. Y. Supp. 872.] I. That plaintiff, at all the times hereinafter mentioned was, and now is, an attorney and counselor at law, practic- ing his profession as such at the City of II. That between the day of , 19 , and the day of , 19 , plaintiff performed °* Form of allegation of complaint «' If he sues for value, plaintiff in Harding v. Rom. Cath. Church of may be required to give a bill of St. Peter, 113 App. Div. 685, 99 N. Y. particulars of the services and their Supp. 945, aff'd 188 N. Y. 631. If respective value. See McGuire v. plaintiff alleges an emplojonent, he Gall, 61 App. Div. 571, 70 N. Y. cannot be permitted to recover on Supp. 795. If plaintiff alleges that the theory merely of an acceptance his services were of the reasonable of his services without employment. and agreed value of a sum stated, Minuth V. Barnwell, 106 App. Div. he may recover the reasonable value. 437, 94 N. Y. Supp. 649. Keister v. Rankin, 29 App. Div. 639, Plaintiffs' negligence does not 51 N. Y. Supp. 634. defeat the action, and must be «« The actual cost must be alleged pleaded by way of counterclaim. and proved as a fact. See Israels v. Lindenburg v. Hodgens, 89 Misc. MacDonald, 123 App. Div. 63, 107 454, 152 N. Y. Supp.- 229. N. Y. Supp. 826. 274 Abbott's Forms of Pleading professional services for said defendant, at his special in- stance and request," [briefly state services,^ as] * in and about recovering possession of certain real property of the defendant known as, etc.,^^ for which defendant promised to pay plaintiff, and which services were reasonably worth, the sum of dollars; ^^ [that plaintiff also expended, in behalf of defendant and upon his promise to repay the same, necessary disbursements in and about such services amounting to dollars]. [Or may allege as in Par. II to *, continuing: that such services, and their nature, and the times when performed, are shown in Exhibit A hereto annexed and made part of this complaint; that said services were reasonably worth, and defendant promised to pay to plaintiff, the sum set opposite to each separate matter in said exhibit, or a total of dollars.] III. That no part of said amount has been paid, and the whole amount thereof is now due and owing by the defend- ant to the plaintiff. Wherefore [etc., demand of judgment]. " A complaint which fails to allege services is sufficient; if defendant a previous request or an employment desires more particularity he may by defendant, shows no considera- ask for a bill of particulars. Smythe tion which will support a promise to v. Cleary, supra; Bums v. Gushing, pay. Bassford v. Swift, 17 Misc. 99 Cal. 669, 31 Pac. Rep. 1134. 149, 39 N. Y. Supp. 337. ™ In suing on a quantum meruit, The complaint is not indefinite the value of each item of service may • because it does not state the time not be required to be shown, even by and place of the request, the form bill of particulars. Gormly v. Smith, in which made, or whether made by 165 App. Div. 169, 150 N. Y. Supp. defendant or another in his behalf. 614. Smythe v. Cleary, 127 App. Div. Although there was a special con- 555, HI N. Y. Supp. 872. tract of retainer, the client may «* The fact that the attorney was cancel it at any time, in which event proceeding under a statute subse- the attorney must recover only on quently declared unconstitutional, quantum meruit. Martin v. Camp, does not deprive him of the right to 219 N. Y. 170. recover the value of his services. The action may be founded on a Sanford v. Robinson, 109 App. Div. guaw^Mm meruii and a special contract 835, 96 N. Y. Supp. 859. of retainer established to fix the '' A general characterization of the value. Hollander v. Kaufman, 172 Work, Labor and Services 275 271a. The Same; Another Form, Covering Balance due on Numerous Matters." [Or, if the services were rendered in numerous matters, sub- stitute for paragraphs II and III of preceding form:] That defendant is indebted to plaintiff in the sum of dollars, being the balance due and owing to him on account of legal services rendered and disbursements made in con- nection therewith between the day of , 19 , and the day of ,19 , a schedule of which services and disbursements showing the agreed price and reasonable value thereof, — and the payments made on account thereof, — is hereunto annexed marked "A" and made a part of this complaint. 272. The Same ; Where Client Refuses to Prosecute Action after Retainer." I. [As in Form 271.] II. That on or about the day of , 19 , the defendant retained plaintiff to bring an action [briefly describe its character] and agreed to pay to him for his legal services % of the recovery. III. That thereafter plaintiff rendered legal services in the preparation of the action, and of the summons and com- plaint, and was prepared to further duly perform all the conditions on his part, but that the defendant refused to prosecute the action further, although requested so to do by plaintiff. rV. That the services heretofore rendered by plaintiff to defendant in and about the said action and retainer are App. Div. 218, 158 N. Y. Supp. framed to recover upon the retainer 195 was properly dismissed. " See note to Form 212. The right of a client to cancel a '^ Adapted from Andrews v. Haas, retainer, is an implied provision in . N. Y. Supp. 394. Sherwood, 21 Hun (N. Y.), 573. 282 Abbott's Forms of Pleading 279. By Master Plumber, for Work done in a City.«^ [Under N. Y. General City Law, §§ 45, 46.] «" That at the times hereinafter mentioned plaintiff was [and now is] conducting the trade, business or calling of a plumber in the city of , as an employing or master plumber, and was at all such times duly registered, and had thereto- fore duly obtained a certificate of competency from the examining board of plumbers in said city as required by Article 4 of the General City Law. [Continue as in any other action.] 280. By Private Detective.*^ [Under N. Y. General Business Law, §§ 70-76.] That at the times hereinafter mentioned plaintiff was engaged in the business of private detective; that plaintiff had theretofore duly obtained from the comptroller of the state a license so to do as required by Article VII of the General Business Law. [Contimie as in any other action for sendees.] 281. For Services Rendered under Contract for Rescuing Vessel from Peril of Sea.*' I. That at the special instance and request of the defend- '* Compliance with the statute is may be registered under the provi- a condition precedent to a recovery, sions of the New York City Building and must be alleged. Schnaier & Co. Code. It must allege the ordinance V. Grigsby, 132 App. Div. 854, 117 and its registration thereunder. N. Y. Supp. 455, aff'd 199 N. Y. 577. Schnaier & Co. v. Grigsby, supra. • K there is no examining board in ^ The requirement that the private existence, comphance is excused. detective must be licensed does not Mead v. Lamarche, 150 App. Div. apply to an occasional employment 42, 134 N. Y. Supp. 479. Such ex- of an individual in a specific instance, cuse should be alleged. but to one engaged in such a business. «« These sections do not apply to Fox v. Smith, 197 N. Y. 527, rev'g 123 the City of New York. But similar App. Div. 369, 108 N. Y. Supp. 181. provisions are made for registration By analogy to cases under the in that city by L. 1913, c. 754, as statute requiring a master plumber extended by the New York City to be registered, comphance with Building Code. See Schnaier & Co. this, statute must be alleged. See V. Grigsby, supra. Form 279 and notes. A corporation cannot be registered ** From complaint in Merritt, etc., under the General City Law, but Co. v. Tice, 77 App. Div. 826, 79 Work, Labor and Services 283 ants, and between the day of , 19 , and the day of , 19 , plaintiff performed cer- tain wrecking services and work and labor and furnished certain materials to the defendants in and about the rescue and floating of the [barge Independence] owned by the de- fendants, which was ashore [off the north shore of Long Island, near ], and bringing said barge to the port of [New York], putting her upon a drydock and delivering her to the defendants. II. That said wrecking services, and materials furnished, were of the fair and reasonable value [and of the agreed price] of dollars, no part of which has been paid. Wherefore [etc.. demand. for judgment]. 282. For Procuring and Furnishing Information.*" I. That at the city of , on or about the day of , 19 , the defendants, for a valuable con- sideration, entered into an agreement [in writing] with plain- tiff, [a copy of which is hereto annexed marked "A" and made a part of this complaint,] wherein and whereby in con- sideration that plaintiff would impart to them certain valu- able information requested by them, to wit, [specify briefly if copy of agreement is not annexed] defendants agreed to pay to plaintiff dollars. II. That thereafter the plaintiff imparted to the said defendants the said information requested by them, and N. Y. Supp. 120; see further deci- inconsistent with a contract for the sions in 97 App. Div. 457, 89 N. Y. rescue of the vessel; such a claim is Supp. 1057, and 118 App. Div. 123, only enforcible in case of the success 103 N. Y. Supp. 333, the latter de- of the attempt at rescue, but a party cision being affirmed without opinion will be liable on his contract for in 192 N. Y. 553. The plaintiff re- services in attempting a rescue with- covered but no question of pleading out regard to its success. Id., and was directly involved, except that cases cited. the averments were sufficient to See form under Answers in enable plaintiff to prove the special Replevin, where defendant asserts contract which would be essential a Hen for salvage of property not to his recovery in a state court. maritime. A claim for salvage must be en- " Adapted from complaint in Ful- forced in the federal court, and is ton v. Vamey, 117 App. Div. 572, 284 Abbott's Forms of Pleading otherwise duly performed all the conditions of said agree- ment on his part.'" III. That no part of said sum of dollars has been paid. Wherefore [etc., demand of judgment]. 283. Against Corporation for Services as an Officer.'^ [From Williamson v. Nat. Elec. Light & Power Co., 48 N. Y. Super. Ct. 541.] '' I. [Allege defendant's corporate capacity as in Forms 44, etc.] II. That on or about the day of , 19 , plaintiff was duly appointed, and from that date to , 19 , plaintiff held the office of [secretary] of said defendant, and discharged all the duties and services appertaining thereto. III. That the salary of the said office, during all said times, was duly and regularly fixed by said defendant at dollars per year. IV. That by reason aforesaid defendant is justly indebted to plaintiff in the sum of dollars, for said salary and services rendered by him as such secretary as aforesaid, 102 N. Y. Supp. 608; Winch v. " An action will lie against a cor- Farmers' Loan & Trust Co., 11 poration to recover for services per- Misc. (N. Y.X 390; again, 12 id. 291. formed outside of plainti£f's duties The form is corrected to comply with as an officer. Bagley v. Carthage, the ruUnga in these cases. See, also, etc., R. Co., 165 N. Y. 179. Mengis v. Fitzgerald, 108 App. Div. Employment by the corporation 24, 95 N. Y. Supp. 1045; Coleman v. may be iriferred from the nature of McClenahan, 149 App. Div. 299, 133 the employment, the importance N. Y. Supp. 885. of the subject-matter, and the action ™ Defendant may, on disputing the of the directors, although no formal meaning of such agreement, show resolution of employment was passed that he had the information from by them. Id. * other sources prior to the date plain- '* This complaint was held suf- tiff claims to have agreed to give ficiently definite against a motion it to defendant. Psaki v. Kissel to correct in that respect. Motor Car Co., 174 App. Div. 36, 160 N. Y. Supp. 107. Work, Labor and Services 285 which sum has been duly demanded, but the same has not been paid, nor any part thereof. Wherefore [etc., demand of judgment]. 284. For Tuition and Books, to Defendant's Minor Son at Boarding School. I. That the plaintiff is the proprietor of a boarding school for boys, known as the School, located at , in the coimty of , and State of II. That on or about the day of , 19 , plaintiff and defendant entered into the following mutual agreement, to wit: that plaintiff, on his part, should furnish at the school aforesaid, for and during the term of the school year following such date, that is, from , aforesaid, to ) 19 , room, board and tuition for M. N., a minor son of defendant, and that defendant should pay plaintiff therefor dollars, dollars thereof on such day of , 19 , and the remaining dollars thereof on the day of , 19 , and should also pay plaintiff for such books and other supplies as should be necessary for said M. N. to enable him properly to take advantage of the tuition so to be provided, and should be furnished by plaintiff. III. That pursuant to such agreement plaintiff has duly furnished such room, board and tuition, and has received the said M. N. at the said school, under such agreement. [Or, That plaintiff has duly perfonned all the conditions on his part.] rV. That annexed hereto marked Schediile A and made part hereof is a list of the books and other supplies neces- sarily supplied to said M. N. by plaintiff to enable hun to take advantage properly of the tuition at said school, and which books and supplies so furnished were each of the reasonable va:lue indicated in said schedule, amounting in all to dollars. V. That defendant has paid no part of said agreed tuition, 286 Abbott's Forms of Pleading and of the reasonable value of said books and supplies [ex- cept etc.]. Wherefore [etc.; demand of judgment]. 285. For Board and Lodging.*' I. That between the day of , 19 , and the day of , 19 ,* the defendant used and occupied, as his lodgings, certain furnished rooms in the dwelhng-house, No. street, in the city of , by permission of the plaintiff, and was fximished by the plaintiff, at his request, with food, attendance, and other necessaries. II. That in consideration thereof, the defendant prom- ised to pay for such board and lodging at the rate of per week [or, that the same were reasonably worth the sum of dollars]. III. That the defendant has not paid the amoimt due for such board and lodging for the period aforesaid, viz., the sum of dollars. Wherefore [etc., demand of judgment]. 286. For Stabling and Care of Horses. I. As in Form 285, inserting at the *, the plaintiff, at the re- quest of the defendant, provided for, kept, and fed two horses belonging to the defendant, at plaintiff's stable, No. street in the City of II and III as in said form. \ 287. For Freight, against Consignor.*^ As in Form 232, substituting at the*, in carrying in plain- tiff's vessel, the , from to , [100 barrels of flour, or, simdry goods and merchandise,] contin- uing as in Forms 232 and 234- '' Not a contract for an interest in '* Of course this and the following lands within Statute of Frauds. forms do not cover the recovery of Wright V. Stavart, 29 L. J. (Q. B.) freight under interstate commerce 161. regulation. Work, Labor and Services 287 288. For Freight, against Consignee. As in Form 232, substituting at the*, in carrying in plain- tiff's vessel, the , from to , [100 barrels of flour, or, sundry goods and merchandise,] which were consigned to the defendant, and by plaintiff delivered to him, on or about the day of , 19 , and by him accepted.'^ Continue as in Forms 232 and 234. 289. For Cold Storage.'^ I. [Allegation of incorporation, if necessary, as in Form 44, continuing:] That at the times hereinafter mentioned plain- tiff was the owner and engaged in the operation of a cold storage warehouse, consisting of a building at , with certain machinery, apparatus and apphances therein con- tained and connected therewith; that there are stored and kept in said building, fruits and other perishable articles of food, in rooms where by artificial means and processes a temperature is maintained which will preserve such arti- cles so stored, and prevent their decay or other deterioration. II. That the defendant is indebted to plaintiff in the sum of dollars, for the stipulated price and reasonable value of the storage of [apples] in plaintiff's said warehouse, from on or about the day of , 19 , to the day of ) 19 , which sum defendant agreed to pay plaiatiff for such service. III. That Schedule A, hereunto annexed and made a part of this complaint, contains a statement of the items of said storage of said apples, of the time each lot was received, the time in cold storage, and the sums promised to be paid by defendant therefor as well as the reasonable value of such cold storage. IV. That the various sums set forth in said schedule A became due and payable from defendant to plaintiff at the " Delivery must be proven to Brook Coal Co. v. Hewson, 158 charge consignee. Moller v. Young, N. Y. 150, where no question of its 5 El. & Bl. 755. sufficiency was directly raised. *■ Adapted from complaint in Fall 288 Abbott's Forms op Pleading time of the removal of the various quantities from storage; that no part of the aggregate amount of dollars has been paid by defendant, and the whole amount thereof is now due and owing, together with interest thereon, as aforesaid. Wherefore [etc., demand for judgment.] 290. By a Parent, for Services of a Minor Child. »' I. That one M. N. rendered services to the defendant, at his request, and with plaintiff's permission, as [a clerk in his store at ,] from , 19 , until , 19 . II. That such services were reasonably worth dollars, {(rr, allege agreed price, as in Form 232.] III. That the said M. N. is the [son] of the plaintiff, and was at the tiiiaes aforesaid, [and is now,] under twenty-one years of age. IV. That no part of the said wages has been paid either to plaintiff, or said M. N. [Or where wages have been improperly paid to minor after notice, allege: That on or about the day of , 19 , plaintiff gave defendant due notice in writing that he claimed such wages, but that defendant has not paid to plaintiff any part of said wages thereafter earned by said M. N.] Wherefore [etc., demand of judgment]. " At common law a parent is en- valid unless the parent or guardian titled to the earnings of a minor child, notifies the employer in writing that in the absence of an agreement, ex- he claims such wages. This changes press or implied, that payment may the common law only when the wages be made to the child; an action for have been in fact paid, and the his services in such case must be parent continues to be the proper brought in the name of the parent. plaintiff in an action for unpaid Shute V. Dorr, 5 Wend. (N. Y.) 204. wages. See Doyle v. Carney, 190 -See also McCoy v. Huffman, 8 Cow. N. Y. 386. But the court will not (N. Y.) 84; Simpson v. Buck, 5 Lans. presume an infant was not entitled (N. Y.) 337. to receive and retain his wages. iJnder New York Domestic Rela- Scott v. Prud. Outfitting Co., 92 tions Law j(Ch.- 14, Consol. Laws) , § 72, Misc. 195, 155 N. Y. Supp. 497. payment of his wages to the minor is Work, Labor and Services 289 291. By Married Woman, for Services. [Under N. Y. Domestic Relations Law, § 60.] [Allege cause of action without reference to fact of 'plaintiff's coverture; see notes to next form.] 292. By Husband for Services Rendered by Wife. [Under N. Y. Domestic Relations Law, § 60.] ^^ I. That at all times hereinafter mentioned M. B. was and still is the plaintiff's wife. II. [Allege services rendered by the mfe to the defendant, as in other forms.] m. That prior to the rendition of said services said M. B. expressly agreed with the defendant that payment for the same should be made to the plaintiff. IV. That defendant has paid no part of said dollars. Wherefore [etc., demand for judgment.] 293. For Services Rendered to Defendant's Child.'^ As in Form 282, substituting at the *, in instructing the de- fendant's child M. N. in various useful branches of learning, and for books, papers, and other necessary things furnished by this plaintiff in and about said work, at the like request [and for the board, lodging, and other necessaries for said ^ The statute confers the right of his interest and jointly with him, the action upon the wife, "in her own husband alone is entitled to recover, sole and separate right," and pro- See Stevens v. Cunningham, 181 vides that the husband shall have N. Y. 454, and cases there cited; no action unless otherwise expressly Briggs v. Devoe, 89 App. Div. 115, agreed; it also creates, the presump- 84 N. Y. Supp. 1063. tion that the right of action is in "* See Dixon v. Chapman, 56 App. the wife "unless the contrary ex- Div. 542, 67 N. Y. Supp. 540, as to pressly appears." a father's Uability for medical serv- The common-law rule probably ices to his infant child rendered at obtains, unaffected by the various request of mother in whose separate enabling statutes, that where the custody the child is. services are rendered by the wife See also notes to Forms 226 and while working for her husband, or 227, for necessaries supplied, are voluntarily rendered by her in 290 Abbott's Forms of Pleading child, provided by the plaintiff during said time, at the like request], continuing as in said form. 294. On Building Contract Fully Performed; Contract not Pleaded, Specifically, i"" I. That heretofore and between the day of , 19 , and the day of , 19 , plaintiff performed work, labor and services for the defendant, and, at his request, in and about the building of [a tannery] on the premises of the defendant in the town of , in the county of , which labor and services were of the agreed price and were reasonably wofth the sum of dollars, and that the plaintiff then and there furnished mate- rials [and paid, laid out and expended money] for the de- fendant at his request in and about the building of said tan- nery, which were of the agreed price and reasonable value of dollars, which the defendant promised to pay the plaintiff."! II. That the defendant, although often requested to do so, has wholly failed to pay the plaintiff for said services, and the materials so as aforesaid furnished [or the said money as aforesaid paid, laid out, and expended], or any part thereof, except the sum of about dollars, and there remains due to plaintiff for such work, labor and service, and mate- rials furnished [and money paid, laid out and expended], as aforesaid, the siun of dollars, with interest from ,19 . Wherefore [etc., demand of judgment]. «»As to the right of plaintiff to This fonn cannot be used if any so plead, after full performance of a of the contract conditions are claimed written contract, see note to Form to have been waived, or plaintiff 232, and cases cited. excused from performance. See So where completion of a contract following forms, for precedents cover- is prevented by defendant, plaintifif ing such situation, may ignore the contract and sue in "i From complaint in Reed v. Mo this form for a quantum meruit. Connell, 133 N. Y. 425. Work, Labor and Services 291 295. The Same; Another Form, Contract Specifically Al- leged, with Claim for Extra Work.io^ I. That on or about the day of , 19 , the plaintiff and the defendant entered into a contract in writing for the erection of a new building as a dwelHng-house for the defendant, at , for the sum of dol- lars, a copy of which contract is annexed to this complaint, forming part thereof, and marked "Schedule A." II. That on or about the day of , 19 , the plaintiff and the defendant entered into a certain other contract in writing for completing and finishing all the joiners' work, carpenters' work, painting stairway and finishing required to make a complete and perfect job upon the same building above referred to, for the sum of dollars, a copy of which contract is annexed to this com- plaint, forming part thereof, marked "Schedule B." III. That on or about the day of , 19 , the plaintiff and the defendant entered into a certain other contract in writing, for building a stable upon said premises, for the sum of dollars, a copy of which contract is annexed to this complaint forming a part thereof, marked "Schedule C." IV. That between the day of , 19 , and the day of ; 19 , the plaintiff performed work, labor and services, and fvirnished materials to the defendant, at his request in and about certain extra work over and above the work provided to be done and per- formed in and by said several contracts in writing of the reasonable value and amount of dollars. That a bill of particulars of said extra work is hereto annexed, marked "Schedule D," and made part hereof. '"2 From an tinreported precedent from the others; it is probable, how- where a motion to compel plaintiff to ever, that each on its face bore such state these claims as separate causes relation to the others as to make but of action was denied, and the denial one complete contract, divided into affirmed on appeal. It would appear several writings, within the principle from the pleading alone, that each stated in the note on extra work in contract was separate and distinct Form 296. 292 Abbott's Forms of Pleading V. That plaintiff dxily performed all the conditions of said contracts on his part."' VI. That the defendant has paid on account of all the said contracts, and extra work, in installments from time to time the aggregate sum of dollars,"^ leaving a balance now justly due and owing upon the same the sum of dollars, no part whereof has been paid. Wherefore [etc., demand of judgment]. 296. The Same; Contract Fully Performed, Except as Subsequently Modified, with Claim for Extra Work."' First. Forafirstcauseof action. I. That on or about the day of ; 19 , plaintiff and defendant made a contract m writing [allege its terms according to their legal effect, or incorporate a copy into the pleading, or, annex and refer to a copy as shown in Form 295]. II. That thereafter and on or about the day of ,19 , at the request of the defendant, said agree- ment was modified so as to require that plaintiff should [allege the character of the modification, as] cover the roof of the building in the above contract mentioned with slate instead of shingles, for which the defendant promised to pay a reasonable sum in addition to the price named in said con- tract, that plaintiff should omit to put bhnds upon the rear of the building, on an agreement with the defendant that a reasonable deduction should be made from the price named in said contract for such omission, and that by the consent of the defendant the time for completing said work was ex- '»' In the unreported case referred '"* It was also held that plaintiff to, it was likewise held that plaintiff should not be required to state what should not be required to substitute payments he claimed to have been for or add to this allegation an allegar made upon each of the contracts and tion in the words of the contract that upon any extra work. No opinion the work had been done and the was, however, rendered, architect's certificate given, or valua- '"* Adapted from complaint in tion of extra work done as provided Mitchell, v. Dunmore Realty Co., for in the contract. See next form, 156 App. Div. 117, 141 N. Y. Supp. note to Par. III. 89. Work, Labor and Services 293 tended for one month after the day named in said contract, to wit, to the day of , 19 . III. That plaintiff has duly performed all the conditions of said contract,"" as so modified,"' on his part. '" Omissions and defects, so trifling as to come under the maxim that the law does not regard trifles, will not prevent a recovery under an allega- tion of full performance. But under the allegation of performance, proof is not admissible of facts excusing performance. Hecla Iron Works v. HaU, 115 App. Div. 126, 100 N. Y. Supp. 696; Rowe v. Gerry, 86 App. Div. 349, 83 N. Y. Supp. 740; Stem V. McKee, 70 App. Div. 142, 75 N. Y. Supp. 157; Schnaier v. Nathan, 31 App. Div. 225, 62 N. Y. Supp. 812; Fox V. Davidson, 36 App. Div. 160, 55 N. Y. Supp. 524. If the architect's certificate is not obtained, or any other condition precedent is unsatisfied, the facts excusing must be stated. Weeks v. O'Brien, 141 N. Y. 199; Bossert v. Poershke,51 App. Div. 381, 64 N. Y. Supp. 733; Conolly v. Hyams, 47 App. Div. 592, 62 N. Y. Supp. 567. See Form 297, for allegation ex- cusing production of architect's cer- tificate. See Form 299, for allegation of un- reasonable withholding by the archi- tect of the certificate. See Form 302, for allegation of substantial performance. See Forms 300 and 301 for allega- tion of waiver of performance. If the contract provides that plain- tiff shall procure an architect's cer- tificate, or that the work shall be done to the satisfaction of an en- gineer or architect and accepted by him before defendant shall make payment, this general allegation of performance is held sufficient, and no special allegation that such cer- tificate or acceptance was obtained is necessai'y. Davis v. Badders, 95 Ala. 348; Wilcox v. Stephenson, 30 Fla. 377; Galbraith v. Chicago Arch. Iron Works, 50 111. App. 247; Ray v. Boteler, 40 Mo. App. 213; Weeks v. O'Brien, 141 N. Y. 199; Smith v. Wetmore, 167 N. Y. 234; Vandegrift V. Burlin, 83 App. Div. 548, 82 N. Y. Supp. 153; Fox v. Cowperthwait, 60 App. Div. 528, 69 N. Y. Supp. 912; Smith v. Gary, 160 App. Div. 119, 145 N. Y. Supp. 99. An allega- tion that the building was completed according to the terms of the con- tract is not a sufficient allegation of performance. Weeks v. O'Brien, supra. "" After a contract is modified, the complaint must not rest upon the original contract alone. Freeman v. Adams, 9 Johns. (N. Y.) 115; Bald- win V. Murih, 2 Wend. (N. Y.) 399; Langworthy v. Smith, Id. 587; Phillips V. Rose, 8 Johns. (N. Y.) 392. But a mere parol extension may not be an alteration which is necessarily material to the cause of action. Crane v. Maynard, 12 Wend. (N. Y.) 408. If a new contract was sub- stituted, the original should not be pleaded. Chesbrough v. N. Y. & Erie R. R. Co., 26 Barb. (N. Y.) 9. If the original contract has been modified or extended, we conceive that the plaintiff may plead in either of two ways: First, he may set forth the contract, not in hcec verba, as originally written, but according to legal effect as modified, and then aver that he "has duly performed all 294 Abbott's Forms of Pleading IV. That the sum of dollars is a reasonable pay- ment to be made in addition to the price named in said con- tract, for covering said roof with slate instead of shingles. V. That the sum of dollars is a reasonable deduc- tion to be made from the price named in said contract for the omission to put blinds upon said building. VI. That on or about the day of ; 19 , payment of the sum of dollars, being the balance due on said contract after making such allowance and such deduction, was duly demanded "of the defendant by the plaintiff, but no part thereof has been paid [except the sum of, etc.]. Second. And for a second cause of action."' the conditions thereof on his part;" or, second, he may set forth a copy of the contract as originally made, and then allege how and when it was modified, and that he has duly performed all the conditions thereof on his part, except as to the points wherein it was so subsequently modified, and that in those points he duly performed all the conditions according to the modifications. But it is not sufficient to allege that the plaintiff has duly performed all the conditions of the contract in every respect, "except in so far as the same were afterwards waived or rendered unnecessary by the posi- tion and action of the defendant" (but without stating what the modi- fications were). Todd v. Union Cas- ualty Co., 70 App. Div. 52, 74 N. Y. Supp. 1062; Smith v. Brown, 17 Barb. (N. Y.) 431. It is held, that where the pleader does not adopt the method of averring perform- ance authorized by Code Civ. Pro., § 633, he will be held to the strictness required by the old rules of plead- ing performance of conditions. It seems to be a fair construction of this section to consider the pleader entitled to aver in this way perform- ance of all the conditions, perform- ance of which he wishes to aver, and to state as exceptions those conditions, performance of which he does not wish to aver, together with his excuse for non-performance of them. He cannot, however, aver full performance, and then seek to show a subsequent modification, and performance under the modified terms. Alexander v. O'Hare, 48 App. Div. 401, 63 N. Y. Supp. 179. See general note on p. 20, on this subject of conditions precedent. For the old rules for averring per- formance of conditions precedent, see Hatch v. Peet, 23 Barb. (N. Y.) 575. Where the plaintiff does not rely on performance of a condition prec- edent, but on facts excusing non- performance, or a waiver, he should aver the excuse, stating the par- ticular circumstances which con- stitute it. See Forms 297-301. "* Whether extra work is to be stated as a separate cause of action or not, must depend upon the cir- cumstances of the case. If it waa done as a consequence of a modifica- Work, Labor and Services day of 295 I. That between the day of , 19 , and the day of ; 19 , plaintiff rendered serv- ices to the defendant at his request in [here state extra work done and materials furnished therefor as in previous forms], of the reasonable value of dollars, of which no part has been paid. Wherefore [etc., demand of judgment]. 297. Allegation of Facts Showing an Excuse for Non- Performance.^"* That plaintiff duly performed all the conditions on his part, until defendant, on the day of j 19 , notified plaintiff that he would take charge of the work and would complete the contract, and [then and there took the work entirely out of plaintiff's control and proceeded to finish the same ^^^ and] refused to permit plaintiff to con- tinue performance thereof; "^ that plaintiff was at said time tion of the contract, it is to be treated as done under the contract, and forming one cause of action with other work done under the contract. If it was done in addition to, but independently of the written con-~ tract, it is more properly to be treated as a second cause of action, based upon an independent contract. Where the extra work is matter of account, it may be better to use Form 303 as a statement of the cause of action. ™ Facts showing excuse for non- performance must be alleged. See note on this point to Form 296 and cases cited. That the facts as alleged above are sufficient, if established, see Smith v. Wetmore, 167 N. Y. 234; Vandegrift V. Cowles Engineering Co., 161 N. Y. 435; Beardsley v. Cook, 143 N. Y. 143; Fraenkel v. Ffiedmann, 199 N. Y. 351. Plaintiff may recover the reason- able value of the work performed, and the profit which he might have earned. Carlin v. City of New York, 132 App. Div. 90, 116 N. Y. Supp. 346; Borup i-. Von Kokeritz, 162 App. Div. 394, 147 N. Y. Supp. 832. Or he may rescind and sue on quantum meruit. Id. A complaint which fails to allege or show that any particular sum was due and unpaid, at the time plaintiff abandoned the work, shows no sufficient justification because of the defendant's failure to make stip- ulated payments. Mitchell v.- Dun- more Realty Co., 126 App. Div. 829, 111 N. Y. Supp. 322. ^i°Held sufficient as against de- murrer to admit proof of the ouster and breach. Ivy Courts Realty Co. V, Morton, 73 App. Div. 335, 76 N. Y. Supp. 687. Ill No aUegation of an offer to per- form or tender of performance is necessary. Id. 296 Abbott's Forms of Pleading ready and willing and had the ability to make full perform- ance of his said agreement, and would have done so except for defendant's acts as hereinbefore alleged."^ 298. The Same; Another Allegation of Facts Showing Excuse. [From Pneum. Signal Co. v. Texas & Pac. R. Co., 200 N. Y. 125.] That the failure of said Railroad Commission to finally approve of this plant and all the work of the plaintiff is not due to any default, neglect or omission on the part of the said plaintiff, or to any failure of plaintiff to comply with the pro- visions of said contract, or to any failure on the part of said plaintiff to furnish proper appliances, labor and material in the erection of said plant, but was wholly due to the default, neglect and omission on behalf of the said defendant, as hereinbefore set forth. 299. Allegation of Fxill Performance Except that Archi- tect's Certificate was Unreasonably Refused.''^ That plaintiff has duly performed all the conditions on his part, except that he has not obtained the architect's cer- tificate of the completion of the work; that after plaintiff had fully completed said work in accordance with the terms of said agreement, he requested said architect to make and "2 Stern v. McKee, 70 App. Div. not admissible under an allegation of 142, 75 N. Y. Supp. 157. performance. Smith v. Wetmore, 41 1" An unreasonable refusal excuses App. Div. 290, 58 N. Y. Supp. 402, plaintiff from securing the certificate aff'd 167 N. Y. 234; see, also, note on (which otherwise is a condition this point to Form 296, and cases precedent, see note on this point to cited. Form 296). MacKnight Flintic As other instances where the Stone Co: v. Mayor, etc., of N. Y., court has sustained the contention 160 N. Y. 72. that a certificate of approval was Adapted from complaint in Becker unreasonably withheld, see N. Y., V. Woarms, 72 App. Div. 196, 76 etc.. Sprinkler Co. v. Andrews, 62 N. Y. Supp. 438, where no question of App. Div. 8, 70 N. Y. Supp. 798, afif'd pleading was directly raised. Evi- 173 N. Y. 25. dence of such unreasonable refusal is Work, Labor and Services • 297 deliver to him his certificate thereof, but said architect un- reasonably refused and still unreasonably refuses so to do. 300. Allegation of Waiver of Condition. ^^^ That the defendant did not employ an architect to super- vise said building construction and from whom plaintiff could have obtained the required certificate, and defendant thereby duly waived the provisions in said agreement [re- quiring that the said work should be done to the satisfaction of the architect representing defendant, to be testified by a certificate under his hand, and also providing that the amounts under said contract agreed to be paid to plaintiff should be paid only as a certificate should be obtained from said architect]. That plaintiff has duly performed all the conditions on his part, except the said provisions so waived by defendant as aforesaid. [That defendants have used the — building — and have accepted the same.] "' 301. The Same, Another Form; Allegation of Express Waiver of a Stipulation in the Nature of a Condition Precedent. [Sustained in Clark v. West, 193 N. Y. 349.] "" That plaintiff duly performed all the conditions on his '" From Feldmaa v. Goldblatt, 75 A waiver is not provable unless it Misc. 656, 133 N. Y. Supp. 945; Fox has been affirmatively alleged. Gran- V. Powers, 65 App. Div. 112, 72 N. Y. ger Co. v. B. K. Iron Works, 204 Supp. 573. N. Y. 218; Kelly v. St. Miphael's R. C. An allegation "that defendant Church, 148 App. Div. 767, 133 N. Y. waived " a specified condition, with- Supp. 328. out disclosing any facts showing such "' From Vacuum Cleaner Co. v. waiver, cannot be considered as pre- Broadway, etc., Co., 78 Misc. 174, senting a pleadable fact. See note 137 N. Y. Supp. 889. on "waiver" on p. 26 and cases "'In this precedent defendant cited. Upon application defendant agreed to pay a specified sum per should be furnished with a bill of page for the writing of a legal treatise, particulars of any acts and state- and a further specified sum per page ments upon which an alleged waiver if during the writing plaintiff totally is predicated. Fox v. Davidson, 44 abstained from the use of intoxicating App. Div. 283, 60 N. Y. Supp. 678. liquor, The action was brought to 298 * Abbott's Forms of Pleading part except that [he did not totally abstain from the use of intoxicating liquor during the continuance of said con- tract.] That defendant waived plaintiff's breach of the stipulation to so totally abstain from the use thereof; that long before the completion of the work by plaintiff under said contract defendant had full knowledge of the plaintiff's breach of said stipulation, that with such full knowledge defendant repeatedly avowed and represented to plaintiff [that he was entitled to and would receive said royalty pay- ments in said additional amount per page] and plaintiff believed and relied upon such representations, and that at all times during the performance by plaintiff of his work under said contract and the acceptance thereof by defend- ant, it was mutually understood, agreed and intended by both parties thereto that notwithstanding the said breach of said stipulation plaintiff was nevertheless entitled to re- ceive and would receive [the additional royalty.] 302. Allegation of Substantial Performance."^ That plaintiff intended in good faith to fully perform said recover the additional sum, notwith- has been held that plaintiff may standing the breach of the condition, recover therefor under a complaint and the complaint weis held good on alleging performance. Rowe v. Gerry, demurrer. 112 App. Div. 358, 98 N. Y. Supp. Such a waiver was held to require 380, aff'd 188 N. Y. 625. In Fox v. no consideration moving to the Davidson, 36 App. Div. 159, 55 party waiving, nor prejudice or N. Y. Supp. 524, plaintiff alleged that injury to the party asserting the he had "substantially performed" waiver; also, that while defendant the work; it does not appear that could not insist upon strict per- defendant sought to have the allega- formance of the contract, he would tion made more definite and certain, be allowed to assert by way of The plaintiff must show that the counterclaim any damages sus- variance is in fact unsubstantial, tained. and that the defects and omissions '" If the plaintiff must rely upon a may be supplied for a comparatively substantial, aa contrasted with a small sum. He must also show that complete performance, it seems better he in good faith intended to f uUy to so allege, and thus present the issue perform. See Spence v. Ham, 163 plainly and obviate a claim of sur- N. Y. 220; Van Clief v. Van Vechten, prise. But since substantial per- 130 id. 571; Woodward v. Fuller, 80 formance is performance in law, it id. 312; Mitchell v. Dunmore Realty Work, Labor and Services 299 agreement, and has duly performed all the conditions . on his part, except that by inadvertence and unintentional oversight the following sUght and trivial defects and omis- sions in full performance exist: [describe them]; that said de- fects may be remedied and said omissions suppUed at a cost not to exceed dollars, which said sum plaintiff de- ducts from the balance due on said agreement as aforesaid. 303. For Extra Work and Materials Furnished, in Connec- tion with a Building Contract."* I. [Briefly refer to the contract between the parties, in connec- tion with which such extra work was done, as:] That on or about the day of > 19 > plaintiff agreed with the defendant to do and perform for the defendant certain work and furnish certain materials for the erection and completion of a building to be used as a [state] on prem- ises [state], for the sum of dollars; that plaintiff duly entered upon the performance of said work, and furnishing of said materials, and duly finished and completed the same, and that the same was duly accepted by said defendant, and paid for in full by him [Or otherwise, according to the fact — and see Farm 296 for a precedent for complaint on the contract, united with a claim for the extra work.] II. That during the course of the aforesaid erection and completion of said building, plaintiff was requested by de- fendant to fximish certain extra materials and to perform certain extra work, outside of and in addition to said con- tracts and the requirements thereof. Co., 126 App. Div. 829, 111 N. Y. App. Div. 527, 80 N. Y. Supp. 864 Supp. 322. (14%); Fox v. Davidson, 36 App. A failure to perform to an extent Div. 159, 55 N. Y. Supp. 524 (20%); equal to ten per cent of the contract Gompert v. Healy, 149 App. Div. 198, price does not admit of a claim of 133 N. Y. Supp. 689 (25%). substantial i)erformance. Witt v. "'See, generally, Forms 294-301, Gilmour, 172 App. Div. 110, 158 and the notes thereto, covering the N. Y. Supp. 41; Rochkind v. Jacob- various matters involved in, or asso- son, 126 App. Div. 357, 110 N. Y. ciated with, this precedent. The Supp. 583; Mitchell v. Williams, 80 form is adapted from Van Note v. 300 Abbott's Forms of Pleading III. [If provisions in contemplation of extra work have been incorporated in said building contract, allege them so far as per- tinent, as:] That the aforesaid contract provided as follows: [may quote provisions, or plead them according to legal effect.] IV. [If the provisions of the contract as set forth require an architect's certificate, or other condition precedent exists, allege performance, as:] That plaintiff has duly performed all the conditions on his part. V. That said extra work performed, and extra materials furnished by plaintiff, were of the reasonable value and agreed price of dollars; that the items thereof, and the agreed prices and reasonable value thereof, are set forth in Schedule A hereunto aimexed and made part of this complaint. VI. That no part of said sum of dollars has been paid by defendant, although payment thereof has been duly demanded. Wherefore [etc., demand for judgment]. 304. Independent Collateral Agreement, Omitted from Written Agreement."' That in addition to the written agreement entered into between plaiatiff and defendant, it was also a part of their mutual agreement, and upon which promise by defendant plaintiff was induced to enter into the said written contract, that [state the omitted agreement, as;], the plaintiff should have the use of the defendant's dock, opposite said premises, for the purpose of landing building materials. Cook, 171 N. Y. 659, where no ques- Gibbons v. Bush Co., 52 App. Div. tion of pleading was directly involved, 211, 65 N. Y. Supp. 215, afiF'd 169 but plaintiff recovered. • N. Y. 574, where a recovery by "' Adapted from complaint in plaintiff was sustained. CHAPTER VIII COMPLAINTS IN ACTIONS FOUNDED UPON EXPRESS PROMISES TO PAY MONEY UPON VARIOUS CONSIDERATIONS PAGE 305. To recover a reward 301 306. To recover liquidated damages 302 307. Upon withdrawal of an action 304 308. The same, for withdrawing opposition to the probate of a will 305 309. Upon agreement to forbear to sm; 300 310. Upon promise made to third person to pay his indebtedness to plain- tiff ... . 307 311. Upon a promise made to a third person, to pay money to the plaintiff 307 312. On a promise to pay for the surrender of a lease 308 313. For the unpaid consideration-money of a conveyance 309 314. For part of the consideration for a general release theretofore de- hvered 309 315. On an express promise, in consideration of a precedent debt _. 310 316. On a debt barred by the Statute of Limitations, or a discharge in Bankruptcy, and revived by a new promise 310 317. On a debt released through a voluntary composition with creditors, but with express reservation of moral obligation to pay 312 318. On a royalty agreement 314 319. On promise to pay share of net profits, for assignment of patent . . . 316 320. Complaint on stipulation to refund money deposited to stay execu- tion c 316 321. Upon a promise to pay drafts for expenses drawn by plaintiff while an employee 319 322. On agreement to pay in consideration of plaintiff's not competing in Ijusiness 320 323. Upon ante-nuptial settlement 321 324. By wife against husband upon agreement for support after separa- tion 322 325. The same, after husband's death 323 326. Against putative father, upon agreement for support of child 324 305. To Recover a Reward. ^ I. That on or about the day of , 19 , ' Form adapted from complaints Armstrong, 102 App. Div. 601, 92 in Sheldon v. George, 132 App. Div. N. Y. Supp. 596. 470, 116 N. Y. Supp. 989; Atwood v. 301 302 Abbott's Forms of Pleading at , defendant made [or, caused to be publishedl an offer to give to any person a reward of dollars, for [state for what, as:] the arrest, or information leading to the arrest, and conviction of one M. N., a former cashier of the defendant. II. That said offer came to the knowledge of plaintiff,^ and in reUance upon the terms of such offer of reward plain- tiff [show compliance with the requirements of the offer, as:] gave to the defendant information which led to the arrest and subsequent conviction of said M. N. III. That plaintiff has heretofore duly demanded pay- ment to him of said reward, but defendant has failed and refused to pay the same, or any part thereof. Wherefore [etc., demand for judgment.]^ 306. To Recover Liquidated Damages.^ I. [Allege, so far as relevant, the circumstances under which, and the agreement by which, the liquidated damages were to he paid, as:] That on and prior to the day of , 19 , plaintiff and defendant were copartners at , in the business of ; that on or about said date, they mutually agreed that the defendant should sell his interest in said copartnership to the plaintiff for the sum of dollars, and the plaintiff should buy the same and pay said sum therefor. 2 It is necessary that plaintiff have rights, and may apportion the reward knowledge of the reward, before he if the efforts of several persons con- renders the services, in order to tributed thereto. Id. establish a contract of payment. See ■• From Corwin v. Hawkins, 42 Fitch V. Snedaker, 38 N. Y. 248; App. Di'v. 571, 59 N. Y. Supp. 603, Howland v. Lounds, 51 id. 604; where no question of pleading was Broadnax v. Ledbetter, 100 Tex. 375, directly raised, but plaintiff re- 9 L. R. A. (N. S.) 1057. covered. See, also, Hammerstein v. ' The action may properly be Constantino, 220 N. Y. 634; Liotta brought against a county which of- v. Abruzzo, 82 App. Div. 429, 81 fers the reward. Rogers v. McCoach, N. Y. Supp. 877; Posner v. Rosen- 66 Misc. 85, 120 N. Y. Supp. 686. berg, 149 App. Div. 272, 133 N. Y. If several persons claim the re- Supp. 704; Syenite Trap Rock Co. v. ward, and intervene in an action, the Williams, 167 App. Div. 774, 153 court may determine their respective N. Y. Supp. 74. Promises to Pay on Various Considerations 303 II. That at the time of the making of such agreement, and as a part thereof, and as a part of the consideration moving to the plaintiff and inducing him to make the said purchase, defendant also agreed that he would not engage in the said business of , at said , for the period of years from the said day of , 19 , and that in case defendant should so engage in such business during said period he should and would pay to the plaintiff the sum of dollars as liquidated damages, and not as a penalty, for his violation of his said agreement, and that upon such violation said sum of dollars should be and become immediately due and payable from him to the plaintiff. III. [Allege plaintiff's performance of conditions precedent, as:] ^ That plaintiff duly purchased of said defendant his said interest in said copartnership, and duly paid to defendant the agreed sum of dollars therefor, and plaintiff has duly performed aU the conditions of said agreement on his part. IV. [Allege defendant's violation of the agreement, as:] That defendant, in violation of his agreement, afterwards and on or about the day of , 19 , engaged in said business of , at said , and ha,s thereafter solicited and received custom and trade from plaintiff's customers and from other persons who would have been plamtiff's customers, and has greatly injured and damaged plaintiff in his said business. V. That by reason of the preroises defendant has become indebted to plaintiff in the said sum of dollars, liquidated damages as aforesaid, no part of which has been paid.^ Wherefore [etc., demand for judgment]. 61 ' Performance must be alleged, or ' An allegation of non-payment facts alleged excusing performance. is essential. Posner v. Rosenberg, Lighthall v. McGuire, 20 App. Di^'. supra. 248, 46 N. Y. Supp. 987. 304 Abbott's Forms of Pleading 307. Upon Withdrawal of an Action. I. That on or about the day of , 19 , an action was pending between the parties to this action in the Court of this State, brought by the plaintiff to recover from the defendant the sum of dollars, [state the character of claim, briefly, as] '^ upon a certain certif- icate of insurance issued by it and payable to plaintiff upon the life of plaintiff's husband; that plaintiff's said husband had disappeared more than years theretofore and was believed by plaintiff to be dead. II. That in consideration that the plaintiff would dis- continue her said action, and would accept dollars in satisfaction of said claim', the defendant on the day afore- said promised to pay the plaintiff the sum of dollars on the day of , 19 , [which said sum was not to be returned in any event, and the further siun of dollars on the day of , 19 , if prior to said last mentioned day plaintiff's husband was not shown to her to be aUve.] III. That the plaintiff accordingly, and in consideration of defendant's said promise, did discontinue said action.' IV. That no part of said [first mentioned] sum of dollars has-been paid.' Wherefore [etc., demand of judgment]. ' A complaint on a promise in con- stated, the discontinuance cannot sideration of a compromise, should support a promise as no consideration show that there was some shadow of is shown. Steuer v. Hart, 175 App. a claim [Dolcher v. Fry, 37 Barb. Div. 829, 162 N. Y. Supp. 489. (N.Y.) 152]; though it need not show 'The complaint must allege full that the plaintiff had an absolutely performance in the statutory form valid claim. Palmer v. North, 35 (Code Civ. Pro., § 533) or aver that id. 282. Compromises of disputed the litigation was discontinued ac- claims fairly entered into are final, cording to the compromise. Dolcher and will be sustained by the courts v. Fry, 37 Barb. (N. Y.) 152. without regard to the validity of the ' In the precedent (Sears v. Grand claims. Sears v. Grand Lodge, 163 Lodge, 163 N. Y. 374) plaintiff had N. Y. 374; Minehan v. Hill, 144 App. judgment notwithstanding her hus- Div. 854, 129 N. Y. Supp. 873. band had reappeared before the first Unless the nature of the action be payment. Promises to Pay on Various Considerations 305 308. The Same, for Withdrawing Opposition to the Probate of a WiU. I. That heretofore one M. N. died at , leaving him surviving A. B., this plaintiff, his [son] and one of his heirs at law [or, next of kin]. II. That after his death the defendant produced and pro- pounded for probate, in the Surrogate's Court of the county of , an instrument purporting to be the last will and testament of said M. N., whereby [a part of| the estate to which the plaintiff would have succeeded, if said M. N. had died intestate, as one of his heirs at law and next of kin, was devised and bequeathed to the defendant.^" III. That plaintiff in good faith had doubts as to the validity of said devises and bequests [or, of the execution of said will, or both], on the ground [briefly state], and that the plaintiff mtended in good faith to oppose its probate on that account [or, filed objections to the probate of said will by said surrogate upon said groimds]." rV. That in consideration that the plaintiff would with- draw opposition to the probate of said willj and would con- sent to its probate by said surrogate, the defendant, on or about the day of , at , promised that he would pay to the plaintiff the sum of dollars [on, etc.]. V. That the plaintiff accordingly withdrew all opposition to the probate of the will, and consented to its probate, and it was thereupon duly admitted to probate by said surrogate. In Kelly v. Baker, 26 App. Div. ton v. Cantwell, 108 N. Y. 255; Trus- 217, 49 N. Y. Supp. 973, the com- tees of Amherst College v. Ritch, 91 plaint in an action upon a promise to Hun (N. Y.), 509. pay a sum for a general release is " It need not be alleged that the held sufficient. will was void. A substantial right '" The plaintiff should show that he to oppose it is enough. Seaman t>. would have derived a benefit from Seaman, 12 Wend. (N. Y.) 381; setting aside the will. Seaman v. Sea- Palmer v. North, 35 Barb. (N. Y.) man, 12 Wend. (N. Y.) 381; s. p., Hor- 282. 306 Abbott's Forms of Pleading [Or, V. That the plaintiff has duly performed all the con- ditions thereof on his part.] VI. That no part of said sum has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 309. Upon Agreement to Forbear to Sue.^^ I. [State briefly the character of plaintiff's claim, upon which he threatened action, as:] That on or about the day of , 19 , plaintiff was injured by being struck by an automobile operated by the defendant; that plaintifif in good faith beheved he had a good claim and cause of ac- tion against the defendant for compensation for such in- juries on the ground of defendant's negligence; and plaintiff intended and threatened to bring an action against defend- ant to recover therefor." II. That thereafter, and on or about the day of ,19 , defendant promised and agreed that if plaintiff would refrain from commencing any action against defendant, he, defendant, would pay to plaintiff on [or before] the . day of , 19 , the sum of dollars. III. That relying upon and in consideration of said promise of the defendant made to plaintiff as aforesaid, plaintiff promised and agreed to and did refrain from in- stituting said suit against the defendant. IV. That defendant has paid no part of said agreed sum of dollars. Wherefore [etc., demand for judgment]. '■^ Adapted from Lockwood v. Title advantage, and, instead of being Ins. Co., 73 Misc. 296, 130 N. Y. annoyed with an action, he escapes Supp. 824. from the vexations incident t,o '' "If a man bona fide believes he it. . . It would be another matter ' has a fair chance of success, he has a if a person made a claim which he reasonable ground for suing, and his knew to be unfounded, and, by a forbearance to sue will constitute a compromise, obtained an advantage good consideration. When such a under it: in that case his conduct person forbears to sue he gives up would be fraudulent." Callisher v. what he believes to be a right of ae- Bischoffsheim, L. R., 5 Q. B. 149, tion and the other party gets an 452. Promises to Pay on Various Considerations 307 310. Upon Promise made to Third Person to Pay his Indebtedness to Plaintiff.'^ That on or about the day of , 19 , one M. N. was indebted to plaintiff in the sum of dollars for money theretofore loaned to him by plaintiff which had not been repaid. That on said date in consideration of the transfer by said M. N. to defendant of certain property consisting of [briefly specify], defendant agreed to pay the said indebtedness of M. N. to plaintiff within months thereafter. That no part of said indebtedness of dollars has been paid to plaintiff, either by defendant, or said M. N. Wheeefore [etc., demand of judgment]. 311. Upon a Promise Made to a Third Person to Pay Money to the Plaintiff." I. That on or about the day of , 19 , " Such a promise is not one to pay the debt of another, but to pay the debt of the promisor, and is therefore not within the Statute of Frauds. Naylor v. Davis, 130 App. Div. 311, 114 N. Y. Supp. 248. The creditor may sue either the debtor, or the promisor. Zeiser v. Cohn, 144 App. Div. 825, 129 N. Y. Supp. 629. See next form and notes thereto. " The form rests upon the theory of Lawrence v. Fox, 20 N. Y. 268, which holds that an action lies in favor of a third party upon a promise made for a valid consideration for the benefit of such third party, although he is not privy to the consideration passing between the parties to the contract. This case has long been regarded as the foundation of the so- called "American doctrine," now generally adopted in this country. Later cases, however, have somewhat limited the apparent scope of this decision with the result that now, to enable such third party to sue, there must be a legal obligation on the part of the promisee to such third party, the theory of the cases being that such an obligation so connects him with the contract as to be a sub- stitute for any privity with the promisor. See Vulcan Iron Works v. Pittsburg Eastern Co., 144 App. Div. 827, 129 N. Y. Supp. 676; Eigney v N. Y. Central R. Co., 217 N. Y. 31; Durnherrw. Rau, 135 N. Y. 219; Barlow v. Myers, 64 N. Y. 41; Vrooman v. Turner, 69 id. 280; Haefelin v. McDonald, 96 App. Div. 213, 89 N. Y. Supp. 395; Pond v. New Rochelle Water Co., 183 N. Y. 330; Rochester Dry Goods Co. v. Fahy, 111 App. Div. 748, 97 N. Y. Supp. 1013, aff'd, without opinion, 188 N. Y. 629. Or, the relation of husband and wife, or parent and cl^ild, will support the agreement made with the one for 308 Abbott's Forms of Pleading one M. N. was, and now is, indebted to the plaintiff in the sum of dollars. [Or otherwise show a legal obligation, or such a relation as husband and wife — See note beldw.] II. On information and belief, that on or about said day, the said M. N. was the holder of a bill of exchange {de- scribing it], and indorsed and delivered the same to the de- fendants, in consideration whereof the defendants then and there promised M. N. that they would endeavor to collect the same, and that when collected they would pay over the sum of dollars to plaintiff in payment of said in- debtedness of said M. N. to the plaintiff. III. That afterwards, and on or about the day of ,19 , the defendants collected and received the amount of said draft. IV. That no part of the same has been paid to the plain- tiff, although payment has been heretofore demanded. Wherefore [etc., demand of jvdgment].^^ 312. On a Promise to Pay for the Surrender of a Lease." I. That at the times hereinafter mentioned, the plaintiff had a lease of premises known as , in the city of , for a term commencing on the day of ,19 , and ending on the day of , 19 , under which he was entitled to the possession and occupation of said premises. II. That on or about the day of , 19 , the defendant, [who was then the owner of — or, who had theretofore purchased the reversion of said premises, subject to the unexpired term of the lease], promised the plaintiff that in consideration that he, the plaintiff, would surrender to the defendant the unexpired term and the possession of said premises, he would pay the plaintiff the sum of dollars [on, etc.]. the benefit, of the other. See Buch- H. Canal Co. v. West. Co. Bank, 4 anan v. Tilden, 158 N. Y. 109, and Den. (N. Y.) 97. cases reviewed. " This form is supported by Am- '« The form is adapted from D. & bfer v. Owen, 19 Barb. (N. Y.) 145. Promises to Pay on Various Considerations 309 III. That the plaintiff thereupon accordingly surrendered the unexpired term and the possession thereof to the de- fendant. [Or, III. That the plaintiff duly performed all the condi- tions thereof on his part.] IV. That no part of said sum has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 313. For the Unpaid Consideration Money of a Convey- ance.*'' I. That on or about the day of , 19 , this plaintiff sold and conveyed to the defendant, at his request, certain premises in the city of , in the county of , known as: [designate the premises]. ^^ II. That the defendant agreed to pay plaintiff [in part consideration] therefor the sum of dollars, on the day of , 19 . III. That no part of the same has been paid [exc^t the sum of, etc.]. Wherefore [etc., demand of judgment]. 314. For Part of Consideration for General Release, Theretofore Delivered. ^^ I. That on or about the day of , 19 , at , in consideration that plaintiff would execute and deliver to defendant a general release of all claims against him [and particularly, etc., describing any definite claim men- '* Assumpsit will lie for the con- Johns. (N. Y.) 210; Bowen w. Bell, 20 sideratioa money of an agreement to id. 338; Thomas v. Dickinson, 12 N. sell land which has been performed on Y. 364. plaintiff's part by the delivery of the " A description sufficient to iden- deed, although there was no valid tify the premises is necessary to give contract therefor under the Statute the complaint the requisite definite- of Frauds [Thomas v. Dickinson, 12 ness and certainty. N. Y. 364;Elyu. McKnight, 30How. ^o Action sustained in Wenz v. Pr. (N.Y.) 101]; notwithstanding the Meyersohn, 59 App. Div. 130, 68 deed contains a receipt for the con- N. Y. Supp. 1091. sideration. Shephard v. Little, 14 310 Abbott's Forms of Pleading timed therein], defendant would pay to plaintiff dollars upon the execution thereof, and dollars on the day of ,19 [or otherwise according to thefact].''^ II. That in reliance upon defendant's said promise plaintiiff duly executed and delivered said release to the defendant.^' III. That defendant has failed to pay said sum of dollars which he agreed to pay on said day of ,19 [or otherwise show defendant's breach]. Wherefore [etc., demand for judgment]. 315. On an Express Promise, in Consideration of a Pre- cedent Debt. 2^ I. That on or about the day of , 19 , the defendant, who was then indebted to the plamtiff in the sum of dollars for [here state concisely the considera- tion, e. g., goods theretofore sold and deUvered by the plain- tiff to the defendant, at his request], in consideration thereof promised the plaintiff that he would pay him said sum on the day of ,19 [or, on demand, or other- wise, as the case may be]. II. That no part thereof has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 316. On a Debt Barred by the Statute of Limitations, or a Discharge in Bankruptcy, and Revived by a New Promise.^^ [Plead the original cause of action as in an action upon it, and continue:] ^' If the agreement is to continue livered, and plaintiff is suing for the plaintiff in employment, or support breach of the agreement, a tender of him until able to work, plaintiff's ac- the release must be alleged. Mo- tion will be for damages caused by Gammon v. Kaiser, 218 N. Y. 46. the breach. See Maloney v. Hudson ^' This form is supported by Har- Riv. W. P. Co., 133 App. Div. 499, lem Canal Co. v. Spear, 2 Hall 117 N. Y. Supp. 601; Syzmanski v. (N. Y.), 510. An action based di- Chapman, 45 App. Div. 369, 61 rectly upon the debt itself is prefera- N. Y. Supp. 310. ble and usually chosen. '2 If the release has not been dc- ^* This form should not be used Pkomises to Pay on Various Considerations 311 without consideration, for its pro- priety turns upon diverse provisions of different Codes and unsettled questions. There is much conflict in the au- thorities as to the proper mode of pleading a debt which has been barred by the Statute of Limitations, or by a discharge in insolvency or bankruptcy. It is settled in New York that in an action under the Code upon a demand which, but for a new promise, would be barred by the Statute of Limitations, the complaint may be upon the original demand; and if the Statute of Limitations is interposed as a defense, the new promise or acknowledgment may be given in evidence to avoid it, without being alleged in the pleadings. Es- selstyn v. Weeks, 12 N. Y. 635, 2 Abb. Pr..(N. Y.) 272, aff'g 2 E. D. Smith, 116; Clark v. Atkinson, Id. 112; Sands v. St. John, 23 How. Pr. (N. Y.) 140. This is also the rule in New York after a claim has been dis- charged in bankruptcy and a new promise to pay given. Herrington v. Davitt, 220 N. Y. 162; Tompkins v. Hazen, 30 App. Div. 369, 51 N. Y. Supp. 1003; Scheper v. Briggs, 28 App. Div. 115, 50 N. Y. Supp. 869; Dusenbury v. Hoyt, 53 N. Y. 521. Contra, Smith v. Richmond, 15 Cal. 501, where the new promise was held to be the cause of action. In Her- rington V. Davitt, supra, is a dictum that in New York the action might properly be founded on the new promise, and to do so is said to be more accurate in view of the fact that all remedy in the original claim is barred by the bankruptcy discharge. It was also the rule at common law that the action might be on the original demand, and if the Statute of Limitations were interposed the de- fendant might set up the new promise by replication; and the same rule appUed in the case of a debt revived by a new promise after a discharge in bankruptcy or insolvency. Hopkins V. Ward, 67 Barb. (N. Y.) 452; Ship- pey V. Henderson, 14 Johns. (N. Y.) 178; Depuy v. Swart, 3 Wend. (N. Y.) 135; Fitzgerald v. Alexander, 19 id. 402; and see McNair v. Gilbert, 3 id. 344. In California it is held that where a demand, barred by the Statute of Limitations or by a discharge in in- solvency, is revived by a new prom- ise, a new contract is made, whereof the original contract is the considera- tion; hence the action must be upon the new promise. Chabot v. Tucker, 39 Cal. 438. In Ohio the rule seems to be that where a new promise or acknowledg- ment has been made, the plaintiff may state the demand barred, as a consideration of the new promise, and allege the new promise in writing as the cause of action. Sturges v. Bur- ton, 8 Ohio St. 215. In Iowa the new promise must be alleged. See 12 Iowa, 294. But in the case of a voluntary re- lease and a subsequent new promise reviving the debt it was held in Steams v. Tappin, 5 Duer (N. Y.), 294, that the action must be upon the new promise, and that a variance be- tween the allegation of a subsisting note, as a cause of action, and the evidence of a new promise to pay a note which has been extinguished by a release, cannot properly be disre- garded on the trial. The only cause of action alleged in the complaint, viz., the note, is in such case dis- proved in its entire scope and mean- ing by the release. Proof of the new promise would substitute a new cause of action, which the defendant had not been required to answer, and 312 Abbott's Forms of Pleading II. That thereafter on or about the day of ,19 ,^Mn consideration of the foregoing facts, the de- fendant promised in writing ^^ to the plaintiff that he would pay such indebtedness. III. That no part of the same has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment].^'' 317. On a Debt Released Through a Voluntary Composi- tion with Creditors, but with Express Reservation of Moral Obligation to Pay. [Sustained in Straus v. Cunningham, 159 App. Div. 718, 144 N. Y. Supp. 1014.] 28 to which the defense in his answer was not at all directed. This question will be much simpli- fied by a more exact use of the term "cause of action." It may be urged with reason that where an indebted- ness against which the statute has run or which has been released in any way so as to leave a debt of imperfect obligation which the law will not en- force, but which is a sufficient con- sideration for the new promise, and a new promise is thereupon made, the original debt and the new promise are not separate causes of action. The plaintiff has not two causes of action; there is but one. He has two sets of facts, either of which might perhaps support his action; but averring both classes of facts, like assigning two breaches of a bond, only states a single cause of action. Alleging both the original debt and the new promise may make a double issue, but it does not make a double cause of action. The Code does not disallow double issues. The above form is not sanctioned by authorities, for all cases; but upon any view it might be sustained on demurrer, even in those States where it is held necessary to rely on the new promise. In Smith v. Richmond, 15 Cal. 501, where the complaint framed in this way after alleging a note, went on to state that defendant having afterwards obtained a dis- charge in insolvency, subsequently made a new promise, it was held that the new promise should be deemed the cause of action, and the note merely inducement. The new promise is properly al- leged, even though the action is on the original claim. Herrington v. Devitt, 220 N. Y. 1G5. "^ In pleading a subsequent prom- ise, in order to avoid the Statute of Limitations, it is necessary to aver definitely the time of such promise; a general averment of repeated ac- knowledgments amounts to nothing. Bloodgood V. Bruen, 8 N. Y. 362; reversing s. c, 4 Sandf. 427. ^ Where a promise to pay a debt is relied on to take a case out of the Statute of Limitations, it is not neces- sary, in pleading, to allege that it was in writing, signed by the party. Lynch V. Musgrave, Hayes & Jones, 821. - " See note to following form. ^ Held, that while a discharge of an Promises to Pay on Various Considerations 313 I. That in , 19 , the firm of , of which defendant was a member, owed the plaintiff the sum of dollars. II. That said firm on or about said date entered into a composition agreement with certain of their creditors wherein and whereby said creditors for certain consideration therein expressed agreed to release said firm and the members thereof from all their legal obUgation to pay the debts and obligations due to said creditors; that plaintiff signed said agreement and became a party thereto. III. That prior to and simultaneously with the making of the said agreement, the defendant expressly reserved from the operation of the said agreement and release his moral obligation to pay the debt of the plaintiff, amounting, as aforesaid, to the sum of dollars and interest, and duly acknowledged and recognized said moral obligation as then existing and continuing to exist thereafter. IV. That thereafter and on or about the day of , 19 , the defendant, recognizing his said moral obligation to pay to the plaintiff the said debt of dollars, and, in consideration thereof, did then and there promise that he would pay to the plaintiff the said sum of dollars with interest from ,19 , as follows : dollars on or about ,19 , and the balance within a year thereafter, the said defendant, however, to be credited on account of said payment with all sums which the plaintiff might receive from the trustees or assignees under said composition agreement. V. That thereafter, from time to time, the defendant made payments upon account of the said sum agreed to indebtedness based upon a composi- time of such moral obligation from tion between a debtor and his the operation of the agreemfet pre- creditors generally, the discharge vents the application of the rule and having been voluntary, leaves no furnishes a consideration for the moral obligation on the part of the promise. See, also, Taylor v. Hotoli- debtor sufficient to support a subse- kiss, 81 App. Div. 470, 80 N. "i". quent promise of payment of the Supp. 1042, aff'd 179 N. Y. balance, an express reservation at the 546. 314 Abbott's Forms of Pleading be paid by him, as aforesaid, in the amouots and at the times set forth in the annexed schedule, which is marked Schedule "A" and made a part thereof, and the plaintiff received various sums from the trustees or assignees under said com- position agreement at the times and in the amounts also set forth in said schedule "A." VI. That of said sum of dollars, there still re- mains unpaid to plaintiff the sum of dollars. Wheeefore [etc., demand for judgment.] 318. On a Royalty Agreement. =' I. That plaintiffs [and defendants] were, on the day of , 19 , and still are the owners of a certain patented invention known as [stating character of invention] ; [that plaintiffs were the owners of an undivided one-half of said invention, and defendants were the owners of the re- mainder]. II. That on or about the day of , 19 , the said defendants, being desirous of obtaining the exclu- sive use and control of said invention, agreed with plaintiffs, in consideration that plaintiffs would not use or Ucense other parties to use said invention, that the defendants would manufacture [stoves] with said invention attached, and would pay to this plaintiff the sum of fifty cents for each [stove] so manufactured and sold by them. [Or otherwise as royalty agreement provides.] III. That up to and prior to the day of , 19 , said defendants did manufacture and sell [stoves] ^ The precedent is adapted from The action is at law; no action for Marston v. Swett, 66 N. Y. 206. an accounting will lie. If plaintiff The state courts have undoubted requires it, he may examine defend- jurisdiction in matters involving ant to ascertain the account so as contracts based upon patent rights, as to frame the complaint. Karst v. distinguished from matters which Prang Educational Co., 132 App. involve the construction or adminis- Div. 197, 116 N. Y. Supp. 1049; tration of the Federal Patent Laws. Moore v. Coyne, 113 App. Div. 52, Wise V. Tube Bending Machine 98 N. Y. Supp. 892; C. & C. Elec. Co. Co., 194 N. Y. 272, and cases v. Walker Co., 35 App. Div. 426, 54 cited. N. Y. Supp. 810. Promises to Pay on Various Considerations 315 under said agreement, to the number of , and for that period did pay to this plaintiff the sum of dollars. IV. [On information and belief] That since the said day of , 19 , and up to the day of , 19 , said defendants manufactured and sold [stoves] so made and under said agreement to the number of at least , whereby the said defendants became liable to pay to this plaintiff the sum of dollars; that during the period last aforesaid, the said defendants have paid to this plaintiff the sum of dollars, only.^" V. That the defendants have not paid the balance of dollars to plaintiff, though often requested. Wherefore [etc., demand of money judgment].^^ 319. On Prbmise to Pay Share of Net Profits for Assign- ment of Patent. '= [Sustained in Dalzell v. Fahys Watch Case Co., 138 N. Y. 285.] I. That heretofore there were issued, in due form of law, to plaintiff by the United States of America five several letters patent, as follows: [specifying them by numbers and date of issue,] being the same letters patent mentioned in the contract duly made, executed and delivered between the parties hereto, a copy of which said agreement is here- unto annexed marked A and made a part hereof. II. That thereafter, and under and by virtue of said agreement, plaintiff did, on or about the day of '" Sales in excess of royalties paid have a reassignment directed by the must be alleged. Moore v. Coyne, court, if the contract so provides supra. upon a breach. Boyer v. Met. Sewing " A complaint is demurrable which Mach. Co., 128 App. Div. 458, 112 demands judgment for a discovery, an N. Y. Supp. 817. accounting, and for any sum found But a failure to pay royalties as due. Cons. Rubber Tire Co. v. agreed gives no right of action in Firestone Tire, etc., Co., 135 App. equity to declare the contract re- Div. 805, 120 N. Y. Supp. 128. scinded. Henderson v. Dougherty, If plaintiff has assigned his inven- 95 App. Div. 346, 88 N. Y. Supp. 665. tion or patent to defendant he may '^ See note 29 to Form 318. 316 Abbott's Forms of Pleading J 19 , duly assign, transfer and set over unto the defendant, or for its use, and at its request, the letters pat- ent aforesaid. III. That thereafter and ever since, the defendant, as plaintiff is informed and believes, has manufactured and sold under said letters patent and agreement, upwards of of the commodities thereby covered and referred to, and that after all the deductions authorized by said agreement from the proceeds of such sales, there remains received by defendant and being net profits, the sum of at least dollars. IV. That plaintiff has duly performed all the conditions on his part to be done and performed under said agreement, and has demanded from said defendant his said share of net profits thereunder, but the defendant has refused to pay over said share, which share amounts to at least *the sum of dollars. Wherefore [etc., demand of judgment]. 320. Complaint on Stipulation to Refund Money Deposited to Stay Execution. [Sustained in Valentine v. Central Nat. Bank, 10 Abb. N. C. (N. Y.) 188.] [After alleging capacity of parties.] I. That on or about the day of , 19 , an action was commenced in this court by the above-named defendant, the Bank of the city of New York, against T. E. M. and C. A. M., as members of the firm of M. & Co., and F. A. M., W. H. W. and these plamtiffs, as members of the firm of M., V. & Co., said actions being founded upon three promissory notes, alleged to have been made by the firm of M. & Co. and indorsed by the firm of M., V. & Co.; that these plaintiffs appeared in said action and served an answer in which they set up as a defense to their Uability upon said notes that the indorsement of the same in the firm name of M., V. & Co. was made by said F. A. M. after the dissolution of said firm, and without the Promises to Pay on Various Considerations 317 knowledge, consent or authority of these plaintiffs, and that the said bank had notice of the dissolution of said firm; that none of the other defendants appeared or answered in said suit; that thereafter the said suit came on for trial before the court without a jury, and the court found in favor of the said bank on the issues so raised between said bank and these plaintiffs, and thereafter and on or about the day of , 19 , a judgment was entered in favor of the said Bank and against all the defendants in said suit, including these plaintiffs, for the sum of dollars. II. That these plaintiffs were advised by their' counsel that error was committed by the court, on the trial of said suit, and in its findings of fact and law, and these plaintiffs desired to appeal from said judgment to the Appellate Divi- sion of this court. III. That these plaintiffs, desiring to avoid the necessity of giving an undertaking, and desiring to prevent the issuing of an execution pending the appeal, entered into an agree- ment and stipulation in writing with the said bank, the de- fendant herein, on or about the day of , 19 , [a copy of which agreement and stipulation is hereto annexed.] IV. That in and by said agreement and stipulation it was mutually promised and agreed between these plaintiffs and the defendant, the said bank, that said bank would accept payment of said judgment in cash, as follows: One-third of the amount of the judgment and all of the costs and dis- bursements at the time of signing the said stipulation, and one-third in cash in two months, with interest, for which a note made by M., V. & Co. in liquidation, indorsed by D. V. & Co., should be given at the same time, and the balance •in cash, in four months, with interest, for which a note of the same description should be given at the same time; and it was further stipulated and agreed that the giving of such cash payment and of such notes should not prejudice the rights of these plaintiffs or either of them, to appeal from 318 Abbott's Forms of Pleading said judgment and from the order denying the motion for a new trial in said suit, and it was further stipulated and agreed that if final judgment for the defendants should be had in said suit, said bank, the defendant herein, would refund to the said defendants, the plaintiffs herein, the cash payments made to said bank, together with such, if any, of said notes as should not have been paid; and if such notes, or either of them, should have been transferred, the said bank should protect the makers and indorsers thereof; that said agreement and stipulation was duly executed by the defendant herein and delivered to these plaintiffs. V. That thereafter in pursuance of the said agreement and stipulation and on or about the day of , 19 , the defendant herein, said Bank, received the sum of dollars in cash, and on or about the day of , 19 , the further sum of dollars, making in all the sum of dollars, the said amount of cash being one-third of the amount of the judg- ment with interest, and the taxed costs in full and interest thereon, and said bank also received two notes of M., V. & Co., in liquidation, indorsed by D. V. & Co., dated , 19 , each for dollars, with interest, one at two and the other at four months after date. VI. That plaintiffs thereafter appealed from the said judgment to the Appellate Division of this court, and on or about the day of , 19 , an order was entered by said Appellate Division reversing said judg- ment and directing a new trial, the costs to abide the event. VII. That thereafter and on or about the day of ,19 , the said suit was tried a second time at Trial Term before Mr. Justice , without a jury, a jury having been waived by the consent of the parties,, and thereafter and on or about the day of , 19 , a decision was duly signed by the said justice and filed in the said action, directing judgment in favor of these plaintiffs, V., W. and K., defendants in that action, and Promises to Pay on Various Considerations 319 against the defendant, the said Bank, the plaintiffs in that action, dismissing the complaint upon the merits as to each of said defendants in said action, V., W. and K., and awarding costs to said V., W. and K. VIII. That thereafter and on or about the day of , , 19 , judgment was duly entered in favor of said defendants in said action, dismissing said complaint upon the merits and awarding them dollars, the costs and disbursements of said action; that thereafter these plaintiffs duly demanded from the defendant, the said bank, the re- funding of the cash payment made to the said bank under the agreement and stipulation hereinbefore referred to, and the return of the notes delivered to said bank under said agreement and stipulation, as hereinbefore set forth, said notes being still unpaid, or that said bank should protect and indemnify these plaintiffs against said notes; and these plaintiffs aver, on information and belief, that said bank has transferred said notes and is not now the owner or holder thereof. IX. That the defendant has wholly failed, neglected and refused to comply with the terms of the agreement and stipu- lation hereinbefore referred to, either by refunding said cash payments or by returning said notes or by protecting or in- demnifying these plaintiffs against the same; to the damage of these plaintiffs in the sum of dollars. Wherefore [etc., demand of judgment] 321. Upon a Promise to Pay Drafts for Expenses Drawn by Plaintiff while an Employee." [Sustained in Levy v. Curtis, 1 Abb. N. C. (N. Y.) 189.] I. That at the times hereinafter mentioned plaintiff was '' The action should preferably be titled to recover, by reason of the brought upon the indebtedness for breach of the agreement to pay the money paid, if the object was to re- drafts, the above action is proper, cover the amount of expenses paid by See decision in Levy v. Curtis, 1 Abb. plaintiff. But if special damages N. C. (N. Y.) 189. have accrued which plaintiff is en- 320 Abbott's Forms of Pleading "employed by defendant as a traveling salesman, and was at such times engaged in traveling in his behalf. II. That defendant had promised and agreed with, and had instructed and authorized plaintiff, while so engaged, to draw [sight] drafts upon him for his necessary traveling expenses, and that defendant would pay them. III. That pursuant to such agreement and authority, plaintiff, on or about , 19 , at , drew his sight draft on defendant for the sum of dollars, which amount was necessary for plaintiff's traveling expenses as such traveling salesman for defendant. IV. That defendant did not pay said draft, but that plain- tiff was obliged to, and did pay, the amount thereof. Wherefore [etc., demand of judgment]. 322. On Agreement to Pay, in Consideration of Plaintiff's not Competing in Business. [Sustained in Stover v. Gamewell Fire Alarm Tel. Co., 164 App. Div. 155, 149 N. Y. Supp. 650.] I. [Allegations showing similar business conducted by plain- tiff and defendant prior to agreement, and in competition with each other, may be presented especially if the agreement con- stituted a part of the terms of a sale to defendant of the plaintiff's business.] II. That on or about the day of , 19 , it was mutually agreed by and between plaintiff and defend- ant, that plaintiff within the period of years there- after would not engage in any business competing with de- fendant [in the city of ], and in consideration thereof that defendant would pay to plaintiff [ dollars per month during said period, or until his earlier death]. III. That plaintiff has duly performed all the conditions of said agreement on his part. IV. That defendant has paid no portion of the [monthly payments for the months of , 19 ]. Wherefore [etc., demand for judgment] Promises to Pay on Various Considerations 321 323. Upon Ante-nuptial Settlement. [From Logan v. Whitley, 129 App. Div. 666, 114 N. Y. Supp. 255.] " I. That on or about the day of , 19 , at , plaintiflf and M. N. entered into an agreement in con- templation of marriage, wherein it was provided that plaintiff, if she should survive said M. N., should accept and receive from his estate the sum of dollars in lieu of dower and of her distributive share of his personal estate, and that said M. N. should hold all the real estate which he at that time owned or might thereafter acquire free from any claim of plaintiff for dower, inchoate or otherwise, and said M. N., in and by said agreement, promised and agreed that plaintiff should be paid said sum of dollars if she should sur- vive him as his lawful widow, as soon after his decease as might be practicable, and that said sum should constitute a charge upon his entire estate, real and personal, of which he might die seized and possessed. [Or otherwise ac- cording to stipulations in agreement; or, annex and refer to a copy.] II. That thereafter and on the day of , 19 , plaintiff and said M. N. intermarried, and that upon his death, as hereinafter alleged, plaintiff became his lawful widow. III. [Allege death of M. N., and appointment of defendants as personal representatives, as in Form 63 or 64-] IV. That plaintiff has heretofore duly presented her claim as above set forth to the defendants, but they have refused to allow or pay the same and have rejected and dis- puted it.' Wherefore [etc., demand of judgment]. '■* Where, in an action brought by ing him by his wrongful act in kiUing the wife's administrators, it was al- her; held, there was no such incon- leged in one count that she survived sistency as resulted in a misjoinder the husband, and in a second count of causes of action, and that the that she was prevented from surviv- second count stated a cause of action. 322 Abbott's Forms op Pleading 324. By Wife Against Husband upon Agreement for Sup- port after Separation.^'' [Action sustained in Winter v. Winter, 191 N. Y. 462.] I. That at all times hereinafter mentioned the defendant and the plaintiff were and now are husband and wife. II. That on or about the day of , 19 , and for prior thereto, said plaintiff and defendant were Uvuig separate and apart from each other [and an action to procure a judicial separation was then pending]. ^^ III. That on said day at defendant agreed that he would pay plamtiff dollars per [week] thereafter for her support and maintenance during the remainder of her natural life, in consideration whereof plaintiff agreed to receive such sum in full settlement and satisfaction of all claim on her part against him for support or main- tenance. IV. That defendant has failed to pay to plaintiff the sum of dollars, becoming due under said agreement be- '* The agreement is valid if the breach. Barnes v. Klug, 129 App. parties have theretofore separated, Div. 192, 113 N. Y. Supp. 325; though made without the interven- Recknagel v. Steinway, 184 N. Y. tion of a trustee, and the action is 614; Randolph v. Field, 165 App. held properly brought at law in Div. 279, 150 N. Y. Supp. 822. Of Winter v. Winter, 191_ N. Y. 462; course the trustee could sue as trus- Effray v. Effray, 110 App. Div. 545, tee of an express trust under N. Y. 97 N. Y. Supp. 286. Code Civ. Pro., § 449; the action Such an agreement is against would not be in equity. Reardon v. pubUc policy it made while the par- Woemer, 111 App. Div. 259, 97 ties are living together, where it is N. Y. Supp. 747. The wife "may made directly between the husband assign her rights, and the assignee and wife and it is an essential part may sue. Spence v. Woods, 134 thereof that they should thereafter App. Div. 182, 118 N. Y. Supp. separate. Maney v. Maney, 119 807. App. Div. 765, 104 N. Y. Supp. 541; ^' It is entirely immaterial whether Boyd V. Boyd, 130 App. Div. 161, legal grounds for separation existed. 114 N. Y. Supp. 361. McCormack v. McCormack, 127 Even if the agreement appointed App. Div. 406, 111 N. Y. Supp. 563. a trustee, whose power was limited That the separation action is still to the receipt and paying over of the pending cannot be pleaded in abate- installments, the wife is the real ment. Hoffman v. Nestel, 146 App. party in interest and may sue for a Div. 305, 130 N. Y. Supp. 775. Promises to Pay on Various Considerations 323 tween the day of , 19 , and the day of , 19 . Wherefore [etc.]. 325. The Same, after Husband's Death. [Sustained in Barnes v. Klug, 129 App. Div. 192, 113 N. Y. Supp.325.]" [I, II and III, substantially as in preceding form, except alleging that said M. N. (husband), for himself and his exec- utors and administrators agreed to pay plaintiff etc.] [rV. Allege death of husband, and appointment of defend- ants as the personal representatives, as in Form 63, or 64-] V. [// husband left a will: That said last will contains no provision for the support of the plaintiff during the remainder of her life, and no provision for the carrying out of such separation agreement as to the continuance of the monthly payments to accrue thereunder]. That the property and estate in the hands of the defendants, over and above all debts and liabilities of the said deceased which may be en- titled to prior consideration, are sufficient in amount to warrant and permit the payment to plaintiff during the re- mainder of her life of said sum of dollars per month as by the said agreement provided. VI. That the defendants claim that all legal liability under said separation agreement ceased on the death x)f plaintiff's said husband. That plaintiff has no means in the Surro- gate's Court of adjusting her claim, or of preventing in that court a distribution of the deceased's estate, or of compelling the defendants to retain in their possession a fund sufficient to meet the said monthly payments as long as plaintiff shall live. Wherefore, plaintiff demands judgment: that it be adjudged that plaintiff is entitled to receive out of the estate " Held, that in the absence of ex- to continue after his death; that an press words, it will be presumed that equitable action would lie. the husband intended the payments 324 Abbott's Forms of Pleading of said M. N., deceased, the sum of dollars per month in monthly payments as long as she shall Uve; that plaintiff be paid in money such installments as shall not have been paid up to the time of the trial of this action; that such a sum be set apart from the assets of the estate of said M. N., deceased, as will produce such monthly amoimt, and directed to be held by the defendants, or other persons to be ap- pointed by the court, as trustees, and such monthly amount be directed to be paid to plaintiff thereafter by said trustees during the remainder of her life; and for such other and further relief as may be just. 326. Against Putative Father upon Agreement for Support of Child. 58 I. [Allege infancy of plaintiff, and appointment of guardian ad litem, as in Form 79.] II. That the defendant is the father of the plaintiff by M.N. III. That defendant at various times and particularly on or about the day of , 19 , at , entered into and reaffirmed an agreement with said M. N., wherein and whereby in consideration of the promise of said M. N. to care for and provide for the support and main- tenance of plaintiff (then of the age of about years),'* as defendant should direct, defendant promised and agreed [state what, as:] to pay to plaintiff the smn of dollars for his benefit, support and maintenance, such payment to be made [in monthly payments of dollars commenc- ing, etc.] IV. That said M. N. has duly performed all the condi- tions of said agreement on her part. ''Adapted from complaint in Ros- ''Such a promise made as an in- seau V. Ross, 180 N. Y. 116, where a ducement to future meretricious rela- judgment for plaintiff was reversed tions is void, as against public policy, on errors not relating to the pleading. Randolph v. Stokes, 125 App. Div. See, also, Todd v. Weber, 95 N. Y. 679, 110 N. Y. Supp. 20. 181. Promises to Pay on Various Considerations 325 V. That defendant has not paid to plaintiff any portion of said sum of dollars [monthly payments for the months of , 19 ], although payment thereof has been heretofore duly demanded of defendant on his behalf. Wherefore [etc., demand for judgment]. CHAPTER IX COMPLAINTS IN ACTIONS ON PROMISSORY NOTES BADE I. NON-NKGOTIABLE PROMISSORY NOTES. 327. General form; pleading by copy 328 328. The same, pleading by legal effect 329 329. The same, another form, the instrument showing a considera- tion 330 330. Another form, the instrument containing also a stipulation. . 330 II. Negotiable promissory notes; by payee against maker. 331. On note in ordinary form; pleading the legal effect thereof. . 331 332. The same, under statute permitting the setting forth of a copy of the note 334 333. On note payable on demand ^335 334. On a renewal note 336 335. On a note signed by an agent 336 336. On partnership note 337 337. By plaintiffs as partners, on a note payable to the order of the firm 338 338. By a surviving partner, on a note payable to the order of his late firm 339 339. By payee against the surviving member of the firm making the note 340 340. By payee, against representatives of deceased partner, or joint maker 341 341. On note made by one continuing use of firm name 341 342. Against executor or administrator of deceased maker 341 343. By executor or administrator of deceased payee 342 344. By a corporation against a corporation 343 345. On two notes, one being partly paid 344 346. On several notes given upon an agreement to pay all upon a default in any 345 347. On a note for a voluntary subscription payable on condition of other subscriptions to a certain amount being secured . . 346 348. On a note payable at a specified time after sight 346 349. By an unincorporated association on a note payable to a former treasurer 347 350. On a note wrongly dated 347 351. On lost negotiable instrument , 348 326 Actions on Promissory Notes 327 III. Indorsee against maker. page 352. By first indorsee; ordinary form, pleading the legal effect. . 348 353. The same, pleading by copy 349 354. Remote indorsee or assignee against maker 350 355. On a note payable to bearer, or to cash, or to a fictitious per- son's order, or to maker's own order 352 IV. Indorsee against indorsee. 356. First indorsee against payee, indorser; pleading legal effect. . 352 357. The same, pleading by copy 356 358. Same against same; on demand note 356 359. The same; approved form in common-law State 357 360. Remote indorsee against the payee, indorser 358 361. Remote indorsee against all prior indorsers 358 362. By an indorsee, who has paid note in hands of subsequent holder, against a prior indorser ; . . 359 363. Averment of excuse for non-presentment; where the maker could not be found 359 364. The same, death of maker or the one primarily liable 360 365. The same, where the indorser has before maturity, waived presentment, demand and notice 360 366. The same, waiver by indorser's request for delay 360 367. The same, alleging facts from which an implied waiver would arise 361 368. The same, where waiver was made after maturity 361 369. On a note which may not be valid as against the maker and avoiding that issue 362 370. Against indorser who indorses after maturity 363 V. Indorsee against maker and indorser. 371. First indorsee against maker, and payee, indorser 363 372. Remote indorsee against maker, first indorser, and a later indorser 364 VI. Against indorser before delivery. 373. Payee against indorser before delivery 364 374. The same, under law merchant; payee having parted with value on the faith of the indorsement 365 375. Against maker and irregular indorser of non-negotiable note 366 376. "The same, shorter form, the maker a corporation 368 377. The same, on a non-negotiable note, sustained in South Carolina 369 VII. By transferees of negotiable paper, not claiming by indorse- ment. 378. By a transferee of a note, against maker 370 379. On note assigned as collateral security without indorsement but with an agreement to indorse; by transferee against maker and transferror 370 380. On a bank note 371 328 Abbott's Forms of Pleading I. NON-NEGOTIABLE PROMISSORY NOTES 327. General Form; Pleading by Copy; ^ Instrument not Showing a Consideration on its Face. I. That on or about the day of , 19 , at the special instance and request of the defendant, plaintiff promised and agreed to thereafter render services [as nurse] to the defendant's son, M. Z. ; that said defendant thereupon ' By N. Y. Code Civ. Pro., § 534, where the action is founded upon such an instrument, the party may set forth a copy and state that there is due him thereon from the adverse party, a specified sum, which he claims. By the force of the statute, such an allegation is made equivalent to setting forth the instrument ac- cording to its legal effect. This Code section, by its terms, covers many instruments that do not fall within the statutes relating to negotiable bills, notes and checks. (See definitions in New York Ne- gotiable Instruments Law, L. 1909, c. 43, Arts. Ill, XI and XVIII.) Under that law (§50) a negotiable promissory note, bill or check im- ports a consideration; therefore no consideration therefor need be al- leged or proven in the first instance. This is an exception to the rule that in each action upon contract a con- sideration must be both alleged and proven. See post, for forms on Negotiable Notes, etc. But no presumption of considerar tion attaches to a non-negotiable note, under the Negotiable Instru- ments Law. Deyo v. Thompson, 53 App. Div. 9, 65 N. Y. Supp. 459; Owens V. Blackburn, 161 App. Div. 827, 146 N. Y. Supp. 966. Whenever, therefore, an instru- ment within this Code section, other than a negotiable promissory note, is being sued upon by copy under the permission of that section, it must be remembered that this method of pleading is but equivalent to plead- ing the terms of the instrument ac- cording to their legal effect; and that if the instrument does not on its face recite or imply a considera- tion, an averment of a consideration is essential to the sufficiency of the complaint. Spier v. Downing, 12 Abb. Pr. (N. Y.) 437. If the instrument shows a con- sideration on its face, none need be pleaded when the instrument is set forth by copy. Wood v. Knight, 35 App. Div. 21, 54 N. Y. Supp. 466. The statement "for value received" is a sufficient showing of considera- tion. Hamilton v. Hamilton, 127 App. Div. 871, 112 N. Y. Supp. 10; Rice V. Rice, 43 App. Div. 458, 60 N. Y. Supp. 97; Owens v. Blackburn, 161 App. Div. 827, 146 N. Y. Supp. 966. Where the instrument is not ne- gotiable and not under seal, an al- legation that it was executed and delivered "for a valuable consid- eration," without setting up the facts showing consideration, is not desirable, as the authorities are in conflict whether or not this is a mere conclusion of law. See p. 21, under title "consideration" and cases there cited. Actions on Promissory Notes 329 and in consideration of such services so promised to be ren- dered at his request, made and deUvered to plaintiff ^ an instrument in writing as follows: Troy, , 19 . I hereby agree to pay A. B. dollars per month, during her natural life, for her attention to my son, M. Z. Y. Z? II. That plaintiff has continued thereafter to render such service and attention to said M. Z., and has duly performed all the conditions on her part. III. That defendant has failed to pay the installment of dollars, which became payable on , 19 , and that by reason thereof there is due to plaintiff from de- fendant on the above instrument the sum of dollars, with interest from, etc., which plaintiff claims. . Wherefore [ete., demand of judgment]. 328. The Same; Pleading the Instrument by Legal Effect.* I. That at , and on or about the day of , 19 , defendant made and delivered to plaintiff his promissory note, dated on said day, wherein and whereby • he promised to pay to plaintiff dollars on demand [or, months after date — or, otherwise according to fact]. II. [Allege the consideration for the promise, as:] ^ That said promissory note was so made and deUvered by defendant to plaintiff in Jpart] payment of [goods consisting of — briefly ^ It should be alleged that defend- ' In the present state of the au- ant made and delivered the instru- thorities on the subject it will not ment. Cohnw.Husson, 113N.y.662. be desirable (or in some localities ' From the complaint in Spier v. sufficient) to allege that the instrti- Downing, 12 Abb. Pr. (N. Y.) 437. ment was delivered "for a valuable ^ See p. 17, for note on this method consideration," but the facts show- of pleading a written instrument. ing the consideration should be al- The general notes to Form 331 may leged. See p. 21, note on alleg- well be read in connection with this ing consideration, and cases there form with reference to many of its cited, allegations. 330 Abbott's Forms of Pleading indicate] theretofore sold and delivered by plaintiff to de- fendant [or otherwise according to fact], III. That no part of said note has been paid.° Wherefore [etc., demand for judgment]. 329. The Same, Another Form; Instrument Showing a Consideration.' I. That at and on or about the date thereof, de- fendant made and delivered to plaintiff an instrument of which the following is a copy, namely: [Set forth an exact and complete copy of instrument sued on, as:] 1500. New York, January 2d, 1918. For value received I promise to pay to A. B. Five Hundred Dollars, two months after date, at the First National Bank of New York City. Y. Z. II. That there is due to the plaintiff thereon from the de- fendant the sum of dollars, with interest from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. 330. Another Form; the Instrument Containing also a * Stipulation. [Sustained in Singer Mfg. Co. v. Hatley, 3 Wash. T. R. 198; 21 Pac. Rep. 384.] I. That heretofore, to wit, on or about the day of , 19 , at , in the county of • , the defendant, in consideration of the sale and deUvery to him by plaintiff on said date of a certain [sewing machine], made and delivered to plaintiff his certain instrument in writing in the words and figures following: [Here was set out a note expressed to be given for the purchase ' Allegation or proof of demand mand. First Nat. Bank v. Story, unnecessary, even if the obligation 200 N. Y. 346. was stated to be payable upon de- ' See notes to Form 327; also the general notes to Form 331. Actions on Promissory Notes 331 of a sewing machine, and a stipulation that it should remain the property of the seller until the note was paid.] II. That in consideration of the execution and delivery of said instrument in writing by the said defendant to the said plaintiff as aforesaid, and the promise of the said de- fendant to pay the said sum of money therein stated, upon the terms and conditions and at the time and place in said instrument in writing, set forth as aforesaid, the said plain- tiff at the time of the execution and deUvery of said instru- ment in writing sold and delivered to the said defendant, the [sewing machine], as described in said instrument in writing, and that the said defendant at said time took the said machine into his possession and has ever since retained, and does still retain, the possession of the same. III. That the said defendant has neglected and refused, and does still neglect and refuse, to pay to the said plaintiff the said sum of money specified in said instrument in writing, or any part thereof, either principal or interest, and that there is now due and owing on said instrument in writing, from said defendant to said plaintiff, the sum of , with interest thereon from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. n. NEGOTIABLE PROMISSORY NOTES; BY PAYEE AGAINST MAKER 331. On Note in Ordinary Form; Pleading the Legal Effect Thereof. [Sustained in Fu-st Nat. Bank v. Stallo, 160 App. Div. 702, 145 N. Y. Supp. 747.] I. That heretofore [or, on or about the day of , 19 ], at , the defendant made and de- livered to plaintiff * his promissory note in writing, * dated 'Delivery need not also be averred, 163 N. Y. Supp. 827; First Nat. as "made" imports it. Abraham- Bank f. Stallo, supra, and cases cited; son V. Steele, 176 App. Div. 865, Churchill v. Gardner, 7 T. R. 596; 332 Abbott's Forms of Pleading on the day of , 19 [or, dated on that day], wherein and whereby he promised to pay to the order of plaintiff « at , dollars, months'" after said date for value received " [or, on the day of , 19 , — or, on demand]. '- Chamberlain v. Hopps, 8 Venn. 94; Russell V. Whipple, 2 Cow. (N. Y.) 536; Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 id. 231; Smith V. Waite, 103 Cal. 372, 37 Pac. Rep. 232; and see, for hke im- port from an allegation that the note was "indorsed" to plaintiff, Form 356. And where the note is alleged to have been made payable to the order of the plaintiff, deUvery to plaintiff is thereby sufficiently shown, as well as his ownership. First Nat. Bank v. StaMo, supra. In those jurisdictions in which the statute requires that the note, or other instrument on which the action is founded, be furnished as an ex- hibit and referred to in the pleading, an omission to furnish the exhibit, or to allege a sufficient excuse for not furnishing it (Brown v. State, 44 Ind. 222; Henry v. Blackburn, 32 Ark. 245), or, if the exhibit is fur- nished, to refer to it in the pleading (Price V. Grand Rapids, etc., R. Co., 13 Ind. 58; Stafford v. Davidson, 47 id. 319), renders such pleading defec- tive. This procedure applies to ac- tions in the United States courts in those States where such statutes have been enacted. Bell v. Mayor, etc., of Vicksburg, 23 How. (U. S.) 443. To state, after the appropriate allegations as to the original, that "a copy of which is annexed hereto," or, if the statute requires filing, "is filed herewith," is a sufficient refer- ence to the exhibit. Carper v. Kitt, 71 Ind. 24; Blackburn v. Crowder, 108 id. 238. ' Who is payee must be stated. White V. Joy, 13 N. Y. 83. If the note is payable to the order of a fic- titious person, or when the name of the payee does not purport to be the name of any person, it is in law pay- able to. bearer. N. Y. Negotiable Instr. Law (L. 1909, chap. 43), § 28; Minet v. Gibson, 1 H. Black, 569 Masters v. Barrets, 2 Car. & K. 715 Pletsv. Johnson, 3 Hill, 112. " Where no time of payment is named, the note is due immediately [Thomson v. Ketcham, 8 Johns. (N. Y.) 189; Gaylord v. Van Loan, 15 Wend. (N. Y.) 308; Peets v. Bratt, 6 Barb. (N. Y.) 662], and interest ^^ No consideration need be averred, for every note within the statute im- ports a consideration. N. Y. Nego. Instr. Law, § 50 (L. 1909, c. 43); Abrahamson v. Steele, supra; First Nat. Bank v. Stallo, sujxra; see also general note, on p. 22. It is not within the statute, if not negotiable. See first note to Form 327. It may be, however, that the unnecessary allegation "for value'' may some- times prove of advantage. While it is not put in issue by a general denial, and want of consideration must be affirmatively pleaded, never- theless one authority holds that a failure to deny the allegation pre- cludes defendant from showing an infirmity of the note in suit. Bene- dict V. Kress, 97 App. Div. 65, 89 N. Y. Supp. 607. " A bill of exchange, or note, pay- Actions on Promissory Notes 333 II. That no part of said note has been paid ^' [except the runs without demand. But if a note is payable "on demand after date," it will not draw interest until de- mand. Van Vliet v. Kanter, 139 App. Div. 603, 124 N. Y. Supp. 63. On such a note a count stating no time of payment is good. Herrick V. Bennett, 8 Johns. (N. Y.) 374. It has been held that faihng to allege when a note was payable by its terms, creates a presumption that no time of payment was expressed, and it was, therefore, due immedi- ately. Niles V. Bradley, 20 Misc. 172, 45 N. Y. Supp. 818. able on demand, is payable immedi- ately, and no demand is necessary before suing the maker. First Nat. Bank v. Story, 200 N. Y. 346, and cases cited; Wheeler v. Warner, 47 N. Y. 519 (a provision that the note bears interest does not change the rule). This principle of dispensing with a demand before suit, is not confined to bills and notes, but applies to all express agreements to pay money, if absolute, even though at a specified time and place. First Nat. Bank v. Story, 200 N. Y. 346, and cases cited; Locklin v. Moore, 57 N. Y. 360, aff'g 5 Lans. 307 (agreement to pay for goods sold, at defendant's store on a specified day). The only eflfect of qualifying a promise to pay by the mere specify- ing of demand at a fixed time and place, is, that if the debtor is ready with the money at that time and place, and no demand is made, he is exonerated from paying costs and interest for subsequent time, pro- vided he keeps ready, pays the money into court when sued, and pleads these facts in his answer. N. Y. Nego. Instr. Law, § 130; Van Vliet V. Kanter, 139 App. Div. 603, 124 N. Y. Supp. 63; Locklin v. Moore, 57 N. Y. 360. Readiness at the time and place, and offer to pay at the trial is not enough. Locklin v. Moore, above. A note payable on demand, or in any terms which make it payable, absolutely at the will of the holder, is immediately due, for the purpose of suing the maker, and, therefore, for setting the Statute of Limita- tions running in favor of the maker. Wheeler v. Warner, 47 N. Y. 519; Howland v. Edmonds, 24 id. 307; (note by a member of a mutual in- surance company, expressed to be payable "in such portions and at such time or times as the direc- tors . . . may . . . require." Such a note is intended as a cash security). Otherwise, of an assessment or call on a subscription for stock. Glenn v. Marbury, 145 U. S. 499. " Non-payment is an essential al- legation. See note on alleging non- payment on p. 18, note 70, and cases cited; Lent v. N. Y. & Mass. Ry., 130 N. Y. 504; s. c, without opinion, and with note on plaintiff's duty to plead non-payment, 28 Abb. N. C (N. Y.) 478; Barney v. Vigoreaux, 92 Cal. 631, 28 Pac. Rep. 678; Not- man v. Green, 90 Cal. 172, 27 Pac. Rep. 157; Scroufe v. Clay, 71 Cal. 123, 11 Pac. Rep. 882;-Ryan v. Halli- day, 110 Cal. 335. It is sufficient, however, if plain- tiff alleges that the note was not paid "at maturity"; this raises a presumption of continuous non- payment which the defendant must meet by affirmative allegations and proof. Dresser v. Merc. Trust Co., 124 App. Div. 891, 108 N. Y. Supp. 334 Abbott's Forms op Pleading sum of , etc.], and that plaintiff is now the holder and owner thereof." Wherepoee [etc., demand of judgment]. 332. The Same, under Statute (in N. Y. Code Civ. Pro., § 534), Permitting the Setting Forth of a Copy of the Note. [Sustamed by Keteltas v. Myers, 19 N. Y. 231; Watson v. Barr, 37 South Car. 463, 16 S. E. Rep. 188.] I. That heretofore [or, on or about the day of , 19 ], at the defendant made and deliv- ered to the plaintiff ^^ his promissory note in writing, * of which the following is a copy: 577; Ahr v. Marx, 44 App. Div. 391, 60 N. Y. Supp. 1091, aff'd 167 N. Y. 582. It is not necessary to allege the specific sum due, when the allegation is that no part has been paid. First Nat. Bank v. Stallo, supra. At common law, if it appeared from the declaration that the note was not yet payable, a demurrer would lie. Waring v. Yates, 10 Johns. (N. Y.) 119; Lowry v. Lawrence, I Cai. (N. Y.) 69. Under the code procedure it is not necessary to al- lege that the time for payment has elapsed. Peets v. Bratt, 6 Barb. (N. Y.) 662; Maynard v. Talcott, II id. 669; Smith v. Holmes, 19 N. Y. 271; Keteltas v. Myers, Id. 231. Where the note is payable on de- mand, no demand before suit against the maker is necessary. First Nat. Bank v. Story, 200 N. Y. 346. So, if the note was payable at a par- ticular place, at a day certaLa; but if the defendant was ready to pay at the time and place, he may plead those facts as he would a tender, in bar of damages and costs, bringing the money into court. Wolcott v. Van Santvoord, 17 Johns. (N. Y.) 248; Caldwell v. Cassidy, 8 Cow. (N. Y.) 271. On a note made in another State, bearing higher interest than allowed by the law. of the fonmi, the foreign statute need not be pleaded, as the common-law right to stipulate for any rate will be presumed to prevail in the place of contract. Bucking- house V. Gregg, 19 Ind. 401. '* It is unnecessary, though usual, in New York, to also allege that plaintiff is the holder and owner of the note, since the facts before stated show his title (First Nat. Bank v. Stallo, supra; Keteltas v. Myers, 19 N. Y. 231); and if an allegation that he is holder and owner is added, a denial of such allegation without denying the facts previously alleged will raise no issue. Bank of Shasta v. Boyd, 99 Cal. 604; Catlin V. Gunter, 1 Duer (N. Y.), 253. It is not necessary to add an aver- ment that defendant was indebted, etc. Connecticut Bank v. Smith, 9 Abb. Pr. (N. Y.) 168. And see note 13. ^^ A complaint is defective if it merely sets forth a copy of the note, without any allegation of its making Actions on Promissory Notes 335 [Set forth a verbatim copy of the note.] " II. That no part of said note has been paid [except the sum of, etc.], and there is now due the plaintiff thereon from the defendant the sum of dollars, with interest from the day of , 19 , which plaintiff claims." Wherefore [etc., demand of judgment]. 333. On Note Payable on Demand.^* I. [Allege making of note, as in either Form 331 or 332.] or execution by defendant. Vogle v. Kirby, 15 N. Y. Civ. Pro. R. 332, 4 N. Y. Supp. 99, 18 N. Y. State Rep. 287; Cohn v. Husson, 113 N. Y. 662; Lord V. Russell, 64 Conn. 86, 29 Atl. Rep. 242. But an allegation that defendant, by his promissory note herewith filed (or set out in the pleading), promised to pay, etc., sufficiently shows execution and delivery. Lord V. Russell, supra; Bell v. Mansfield (Ky., 1890), 13 S. W. Rep. 838. 18 Where the iiote is set out, other allegation of defendant's promise is unnecessary. N. Y. Code Civ. Pro., § 634; Brown v. Weldon, 71 Cal. 393, 12 Pac. Rep. 280. Nor need it be alleged that the note was due before the filing of the complaint, if the copy embodied therein shows it to have been due. Postal v. Oard, 1 Ind. App. 252, 27 N. E. Rep. 584. And such a pleading of the note, without otherwise attaching or filing a copy, satisfies the statutes, in certain juris- dictions, which require the attaching to or filing with the complaint a copy of the instrument on which the action is founded. Barnes v. Van Keuren, (Neb., 1891), 47 N. W. Rep. 848; Benjamin v. Delahay, 3 lU. (2 Scam.) 674; Colchin v. Ninde, 120 Ind. 88. Should the note, when offered in evidence, show indorsement by the plaintiff payee in blank, as well as by third persons, no variance can be claimed, although the complaint con- tained no allusion to such indorse- ment. Such indorsement upon a note in the payee's hands can have no effect on his title or rights. Rozet V. Harvey, 26 III. App. 558. " For forms of the allegation of the amount due, which were held suffi- cient, though they did not follow the precise words of the statute, see Smith V. Fellows, 26 Hun (N. Y.), 384; Keteltas v. Myers, 19 N. Y. 231; Oishei v. Craven, 11 Misc. 139, 31 N. Y. Supp. 1021. A simple allegation of non-payment is held to be enough, without the statutory clause "that there is now due," etc. Lafayette Trust Co. v. Lacher, 139 App. Div. 797, 124 N. Y. Supp. 401. " See notes to Form 331 referring to negotiable instruments payable on demand. If the note provide for its payment "on demand and return of securities given" no demand is necessary be- fore action brought, and the return of the securities need not be tendered vmtil the trial. Spencer v. Drake, 84 App. Div. 272; Field v. Sibley, 74 App. Div. 81, 77 N. Y. Supp. 252, aff'd 174 N. Y. 514. 336 Abbott's Forms of Pleading II. That no part of said note has been paid [and if payable "on demand after date,"" add for the purpose of recovering interest] although payment thereof was duly demanded of the defendant on the day of , 19 . Wherefore [etc., demand for judgment]. 334. On a Renewal Note.^" [Allege in all respects as though an original note.] 335. On a Note Signed by an Agent." I. That at , and on or about the day of "A note payable "on demand after date" is a demand note. Schle- singer v. Schultz, 110 App. Div. 356, 96 N. Y. Supp. 383. It is not due, however, until the day after date (Harden v. Dixon, 77 App. Div. 241, 78 N. Y. Supp. 1061) and interest is legally recoverable only from the date of demand. Van Vliet v. Kanter, 139 App. Div. 603, 124 N. Y. Supp. 63. ™ Or, if the original note has not been surrendered, the action may properly be brought upon it, plaintiff surrendering the renewal note at the trial. See Hayward v. Empire State Sugar Co., 105 App. Div. 21, 93 N. Y. Supp. 449, aff'd 191 N. Y. 536; Carnegie Trust Co. v. Kleybolte, 74 Misc. 246, 134 N. Y. Supp. 69. ^' It is more scientific pleading, and in full accord with its rules requiring that the pleading shall set forth the ultimate pleadable fact, to allege that the defendant made and delivered his note, proving at the trial that it was made by his authorized agent. However this form is allowable, and the words referring to the agent cannot be stricken out as irrelevant. St. John V. Griffith, 1 Abb. Pr. (N. Y.) 39. The case of DoUner v. Gibson, 3 Code R. (N. Y.) 15; 9 N. Y. Leg. Obs. 77, holding to the contrary, was reversed upon appeal. It is sufficient to plead the making of the note by defendant without re- ferring to the fact that it was made by his agent, even though the cir- cumstances alleged show that the act could not have been done except through an agent, as for instance where defendant is a corporation [Buffalo Lubricating Oil Co. v. Standard Oil Co., 43 Hun (N. Y.), 153, 158; affirmed in 106 N. Y. 669, without noticing this point; Slavin v. Reppy, 46 Mo. 606]; or where a note so signed is pleaded by setting it forth. Moore v. McClure, 8 Hun (N. Y.), 558; Goetz v. Goldbaum, 37 Pac. Rep. 646 (Cal., 1894). So, also, an allegation that defendant made the contract is supported by proof of a contract signed by an agent. Re- gents' University v. Young Men's Soc, 12 Mich. 138; Sherman v. N. Y. Central R. R. Co., 22 Barb. (N. Y.) 239. "He who acts through another acts himself, and the allega- tion that he acts himself is good pleading and permits of proof of the authority of the other." Hand v. Society for Savings, 44 N. Y. State Rep. 785, 18 N. Y. Supp. 157. ' An allegation, however, to the ef- Actions on Promissory Notes 337 , 19 , the defendant, by one M. N., his agent [or, his attorney in fact], duly authorized thereto 22 made and delivered to plaintiff his promissory note in writing [here plead note according to its legal effect as in Form 331, contin- uing from * or set out copy thereof, as in Form 332, continuing from *]. II. [The same as in Form 331, or, as in Form 332.] Wherefore [etc., demand of judgment], 336. On Partnership Note. I. That at the times hereinafter mentioned, defendants were and now are copartners, doing business under the name and style of Y., Z. & Co.^^ choice for the pleader whether he state that the agent was authorized. The allegation that defendant made the note by his agent without more, should be held to imply that the agent had authority in order to sus- tain the pleading. Childress v. Emory, 8 Wheat. 642, 5 Law. Ed. 705; Nichols v. James, 130 Mass. 589; Tarver v. Garlington, 27 S. C. 107. Subsequent ratification by princi- pal of agent's unauthorized act may be proved under an allegation of due authority. Hoyt v. Thomijson, 19 N. Y. 207; Longt;. Osborn (la., 1894), 59 N. W. Rep. 14. -' It is held not essential to allege that the defendants were partners. Under an allegation that the defend- ants made their promissory note, etc., a note signed with a firm name may be admitted together with evi- dence that the defendants consti- tuted the firm, and that the note was executed by one of their number. Vallett V. Parker, 6 Wend. (N. Y.) 615; Mack v. Spencer, 4 id. 411; Porter v. Cummings, 7 id. 172; Stix v. Mathews, 63 Mo. 371; Jemison v. Dearing, 41 Ala. 283. Otherwise, if the allegation be "their own proper feet that one M. N. was agent, and acting as such made " his " promissory note, is not good in a complaint seek- ing to hold the principal. First Na- tional Bank v. Turner, 24 N. Y. Supp. 793. The general rule is, that no one can be sued on a note or other instrument within the law merchant, except the person by whom it pur- ports to have been made. 1 Parsons on Bills & Notes, 92; 1 Dan'l Nego. Instru., § 303; Briggs v. Partridge, 64 N. Y. 357. There is, however, a considerable confusion in the cases as to what signature by one acting as agent will bind his principal. In New York it has been held that a bill of exchange to the order of "S., Cas.,'' and indorsed by him in hke manner, bound the bank of which S. was cashier, upon proof that it had been the usual custom of the bank in dealing with plaintiff to allow S. to so indorse for it. Bank of Genesee V. Patchin, 19 N. Y. 312. But one so signing cannot relieve himself of the maker's liability on the instrument against a holder without knowledge. Casco Natl. Bk. v. Clark, 139 N. Y. 307. 22 It is, also, commonly a matter of 338 Abbott's Forms of Pleading II. That heretofore and on or about the day of , 19 , the defendants, as such copartners,^* under their said firm name of Y., Z. & Co., made and deUvered to plaintiff their promissory note in writing [continue as in Form 331 from *, or, as in Form 332 from *].^^ III. [The same as in Form 331, or, as in Form 332.] Wherefore [etc., demand of judgment]. 337. By Plaintiffs as Partners, on a Note Payable to the Order of the Finn.26 I. [Allege plaintiffs' copartnership as in preceding form.] hands, and names being thereunto subscribed." Pease v. Morgan, 7 Johns. (N. Y.) 468. Or, if defend- ants are alleged to be joint and sev- eral makers. Neteler v. Cuhes, 18 111. 188. Nor is it necessary to allege what member of the firm signed or in- dorsed the firm's name. It is suffi- cient to plead the legal effect, that the note was made by the firm. Man- hattan Co. V. Ledyard, 1 Caines (N. Y.), 192. It is preferable, however, to allege the partnership as in the form given, thus forcing a direct issue. OechS v. Cook, 3 Duer (N. Y.), 161; Anable v. Steam, etc., Co., 16 Abb. Pr. (N. Y.) 286. A complaint setting forth a copy of a note signed M. & Co., and only al- leging M. to be the maker, is bad on demurrer. If there was no real firm it should be alleged that the note was made by M. in the name of M. & Co. Price V. McClave, 6 Duer (N. Y.), 644. '' Such a distinct allegation of the act being a co-partnership act, was considered necessary in Freeman v. Campbell, 55 Cal. 197. But under a complaint charging defendants as joint makers, a recovery may be had on proof of a note signed by them as partners in firm name [Jemison i/7 Bearing, 41 Ala. 283; Vallett v. Parker, 6 Wend. (N. Y.) 615], and the more general rule is that an allegation of co-partnership under a firm name, and the giving of the note in the firm name, sufficiently shows, as against an objection at the trial, that it was made by them as partners. Rams v. Bohm (Ind. App., 1893), 33 N. E. Rep. 218; s. p., Stix v. Mathews, 63 Mo. 371; Redemeyer v. Henley (Cal., 1895), 40 Pac. Rep. 230. ^^ Plaintiff need not allege or prove that the note was given in the part- nership business; if not so given, that fact is matter of affirmative defense. Richardson v. Erckens, 53 App. Div. 127, 65 N. Y. Supp. 872, aff'd 169 N. Y. 588. 28 Where it appears from the com- plaint that the payees are designated by a firm name, the plaintiffs must be shown to be the persons composing the firm. McGregor v. Cleveland, 5 Wend. (N. Y.) 475; Ord v. Portal, 3 Camp. 239, note; but see Wardell v. Pinney, 1 Wend. (N. Y.) 217. It is not enough to describe them as part- ners in the title of the complaint only. Bischoff V. Blease, 20 S. C. 460; Fryer V. Breeze, 16 Colo. 323, 26 Pac. Rep. 817. Actions on Promissory Notes 339 II. That heretofore and on or about the day of , 19 , the defendant made and delivered to plain- tiffs his promissory note in writing, dated on the day of , 19 [or, dated on that day], at , and thereby promised to pay to the order of these plaintiffs, under their said firm name of A. B. & Co., dollars, months after date [or, on the day of , 19 , or otherwise]. [Or, that heretofore — or, on or about the day of , 19 , — the defendant made and deUvered to the plaintiffs, under their said firm name of A. B. & Co., his promissory note in writing, of which the following is a copy: Set forth copy of note as in Form SS2.] III. [The same as in Form SSI, or, as in Form 332.] Wherefore [etc., demand of judgrmnt]. 338. By a Surviving Partner, on a Note Payable to the Order of his Late Firm.-^ I. That, at the time of the making and deUvery of the note, as hereinafter mentioned, the plaintiff and one CD. were partners, doing business at , imder the firm name of A. B. & Co. II. That, on or about the day of , 19 , at , the defendant made and dehvered to plaintiff A distinct averment of plaintiff's If the note is one which was given partnership is only necessary when to the partnership, the death of the their right of action depends upon the deceased partner and plaintiff's sur- partnership. When a joint ownership vivorship must be alleged. Holmes or joint contract will enable them to v. De Camp, 1 Johns. (N. Y.) 34; recover, it is no objection to their JeU v. Douglass, 4 Barnw. & A. complaint that their partnership was (Eng.) 374, 6 Eng. Com. L. R. 451. not pleaded. Loper v. Welch, 3 Duer Otherwise, if the note was originally (N. Y.), 644; and see Oechs v. Cook, made to the survivor, although the Id. 161. consideration proceeded from the " The surviving partner sues in his partnership. Id.; s. p.. White v. Joy, individual capacity as the lawful sue- 13 N. Y. 83. cessor to the cause of action, and not The form given is supported by in a representative character. See Manning f. Smith, 16 Nev. 85. note 200, to Form 95. 340 Abbott's Forms of Pleading and said C. D. as such copartners, his promissory note in writing, dated on that day, and thereby promised to pay to the order of the plaintiff and said C. D., under their said firm name, dollars, months after said date [or, on the day of ,19 ]. [Or, that on or about the day of , 19 , at , the defendant made and delivered to plaintiff and said C. D., as such partners, his promissory note in writing, of which the following is a copy — set forth copy of note.] III. That on or about the day of , 19 , at , said C. D. died, leaving the plaintiff the sole surviving partner of said firm. IV. [The same as paragraph II in Form 331, or as in Form 332] Whebefore [etc., demand of judgment]. 339. By Payee against the Surviving Member of the Firm Making the Note.-' I. That at the time of the making of the note hereinafter mentioned, the defendant and one W. X., were copartners, doing business under the firm name of Y. Z. & Co. II. Tiiat on or about the day of , 19 , at , the defendant and said W. X., under their said firm name, made and delivered to plaintiff their promissory note in writing [continue as in Form 331 from *, or as in Form 332 from*]. III. That on or about the day of , 19 , at , said W. X. died, leaving the defendant the sole siu-viving partner of said firm. IV. [The same as paragraph II in Form 331 , or as in Form :] Wherefore [etc., demand of judgment]. -'An action at law upon the note partner. Maples v. Gieller, 1 Nev. will not lie against the survivor and 233. the representative of the deceased Actions on Promissory Notes 341 340. By Payee against Representative of Deceased Partner or Joint Maker. ^^ I. That at the time of the making of the note, as herein- after mentioned, W. X. and Y. Z. were copartners, doing business at , as [state business] under the firm name of Y. Z. & Co. II. That on or about the day of , 19 , the said W. X. and Y. Z., as such copartners, and under their said firm name, made and delivered to plaintiff their promissory note in writing [contintie as in Form 331 from *, or as in Form 332 from *]. III. [Allege death of one of the partners, and appointment of defendant as his personal representative, as in Form 63 or as in Form 64-] IV. [Non-payment of note, as in Form 331 or 332.] V. That said [surviving partner] is wholly insolvent, and plaintiff has been and will be wholly imable to collect any portion of said note from him. [Or if according to fact, allege recovery of judgment against him and inability to enforce its payment.] Wherefore [etc., demand for judgment]. 341. On Note made by one Continxiing Use of Firm Name.^" I. That heretofore at the defendant, under the firm name of Y. Z. & Co., made and delivered his promissory note of which the following is a copy. [Copy.] II. That defendant is the sole member of said Y. Z. & Co. III. [Non-payment as in Forms 331 or 332.] 342. Against Executor or Administrator of Deceased Maker. I. That heretofore and on or about the day of , 19 , one M. N. made and delivered to plaintiff his promissory note in writing, dated on the day "See Potts V. Bounce, 173 N. Y. joinder must set out the names of 335. omitted partners. Persons v. Kruger, 'o Defendant's answer of non- 39 App. Div. 416, 57 N. Y. Supp. 416. 342 Abbott's Forms of Pleading of , 19 , [or, dated on that day], and thereby promised to pay to the order ofthe plaintiff dollars, months after said date [or, on the day of. ,19 ]. II. [Allege M. N.'s death and defendant's appointment, if executor, as in Form 64, or, if administrator, as in Farm 63.] III. That no part of said note has been paid " [except the sum of, etc.]. Whekefobe [etc., demand of judgment]. [Or, the following form may be used, under N. Y. Statute, Code Civ. Pro., § 534:] I. That heretofore and on or about the day of , 19 , one M. N. made and delivered to plaintiff his promissory note in writing, of which the following is a copy : [Set forth a copy of note.] II. [Allege M. N.'s death and defendant's appointment, if executor, as in Form 64, or, if administrator, as in Form 63.] III. That no part of said note has been paid [except the sum of, etc.], and there is now due plaintiff thereon from the defendant as executor [or, administrator] aforesaid, the sum of dollars, with interest from the day of , 19^ , which plaintiff claims. Wherefgee [etc., demand of judgment]. 343. By Executor or Administrator of Deceased Payee. I. On information and belief that heretofore and on or " An allegation of nonrpayment by mitted to the jury. A proper method deceased is sufficient in an action of determining such question is by against his executor or administrator. affidavits submitted to the court after Wise V. Hogan, 77 Cal. 184, 19 Pac. verdict. Burrows v. Butler, 38 Hun Rep. 278. (N. Y.), 157. Allegations as to presentment of But the usual practice is to allege note to defendant executor or admin- such facts and present as a part of istrator, or as to an offer and refusal plaintiff's proof, and if the answer to refer for the purpose of enabling admits the allegations the represent- plaintiff to recover costs, are not ative cannot contest the question, necessary, and even if such allega- Persbacker v. Murphy, 153 App. tions are made and denied no issue Div. 492, 138 N. Y. Supp. 537. is raised thereby which can be sub- Actions on Promissory Notes 343 about the day of , 19 , defendant made and delivered to one M. N. his promissory note in writing, dated on the day of • , 19 , [or, dated on that day], and thereby promised to pay said M. N. [or his order] dollars, months after said date [or, on the day of , 19 ]. II. [Allege M. N.'s death and plaintiff's appointment, if executor, as in Form 64, or, if administrator, as in Fc^m 63.] III. On information and belief that no part of said note has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. [Or, the following form may be used, under N. Y. Code Civ. Pro., § 534:] I. That heretofore and on or about the day of , 19 , defendant made and delivered to M. N. his promissory note, in writing, of which the following is a copy: [set forth copy of note]. II. [Allege M. N.'s death and plaintiff's appointment, if executor, as in Form 64, or, if administrator, as in Form 63.] III. That no part, of said note has been paid [except the sum of, etc.], and there is now due the plaintiff thereon as executor [or, administrator] aforesaid from the defendant the sum of dollars, with interest from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment], 344. By a Corporation against a Corporation. I and II. [Allege plaintiff's and defendant's incorporation as in Form 44, ^ic] III. That on or about the day , 19 , at , the defendant [by M. N., its president, or, cashier, or, agent, or otherwise, duly authorized thereto], ^^ made and delivered to plaintiff its promissory note in writ- ing [continue as in Form 331 from *, or as in Form 332 from *. '2 See note 21 to Form 335. 344 Abbott's Forms of Pleading IV. [The same as paragraph II in Form SSI, or as in Form 3S2.] * Wherefore [etc., demand of judgment].^^ 345. On Two Notes, one being Partly Paid." First. For a first cause of action. I. That heretofore and on or about the day of , , 19 , the defendant made and delivered to plain- tiff his promissory note in writing [continue as in Form 331 from the *, or, as in Form 332 from the *]. II. [// the legal effect of the note is pleaded in the first para- graph, i.' e., if Form SSI has been followed, allege]: That no part of said note has been paid, except the sum of dollars [or, if the note is pleaded by setting forth a copy under Form 332; That no part of said note has been paid except the sum of dollars, and there is now due plaintiff thereon from the defendant the sum of dollars, with interest from the day of , 19 j which plaintiff claims]. Second. For a second cause of action. I. That heretofore and on or about the day of , 19 , the defendant made and delivered to plain- tiff his promissory note in writing [continue as indicated above]. II. [// the legal effect of the note is pleaded, allege: That no part of s%id note has been paid; or, if the note is pleaded, by setting forth a copy: That no part of said note has been paid, and there is now due the plaintiff thereon from the defendant the sum of dollars, with interest from the day of , 19 , which plaintiff claims.] Wherefore [etc., demand of judgment]. ^' Under N. Y. Code Civ. Pro., joined in the same complaint, they § 1778, the defendant's answer in must be separately stated. See such an action must be accompanied Form 2 and notes; Nathans v. Hope, by a judge's order directing the 77 N. Y. 420; Van Namee v. People, issues raised by the pleadings to be 9 How. Pr. (N. Y.) 198; Dorman v. tried. KeUam, 4 Abb. Pr. (N. Y.) 202; " Several notes are several causes contra, Merritt v. Nihart, 11 la. 57; of action, and while they may be Dawson v. Lail, 1 Ariz. 490. Actions on Promissory Notes 345 346. On Several Notes Given upon an Agreement to Pay all upon a Default in any.^*^ [Sustained by Brown v. Southern Mich. R. R. Co., 6 Abb. Pr. (N. Y.) 237.] I. That on or about the day of , 19 , the defendants were indebted to the plaintiffs in the sum of dollars. II. That to secure the payment of that sum, and in consid- eration of the credit thereby secured, the defendants agreed to deliver, and did on said day make and deliver, to the plaintiffs, and plaintiffs accepted, their promissory notes in writing, of which copies are hereto annexed, marked "A," ' " B " and " C, " and made part of this complaint. ^® III. That at the same time as the delivery of said notes, and in consideration of plaintiffs' acceptance thereof, de- fendants agreed with plaintiffs in writing that in case of default of the payment of any one of the said notes at the time when the same should become due and payable, the whole amount of the said sum of dollars and in- terest, then remaining unpaid, should forthwith, at the option of the plaintiffs, ^'^ become at once due and payable. IV. That the defendants have made default in the pay- ment of the note which became due and payable on the day of , 19 ; that no part thereof, or of any of said notes, has been paid, and plaintiff hereby elects that all of said notes shall be now due and payable. Wherefore [etc., demand of judgment]. '* The action is rather upon the feet of annexing a copy of a writ- special agreement than on the notes, ing. See Banzer v. Richter, 68 Misc. 192, " Where the coming due of all of 123 N. Y. Supp. 678. For note on the the notes was by a provision to that legal effect of promissory notes given effect, and not dependent upon for payments expected to become plaintiff's election, it was held that a due under continuing or other exec- judgment obtained on one of the utory contracts, see 30 Abb. N. C. notes, sued on after the default, was (N. Y.) 15. a bar to an action on the others. " See notes to Form 4, as to the ef- Banzer v. Richter, 68 Misc. 192, 123 N. Y. Supp. 678. 346 Abbott's Forms of Pleading 347. On a Note for a Voluntary Subscription, Payable on Condition of other Subscriptions, to a Certain Amount Being Secured.^* I. [Allege plaintiff's incorpo7-ation, as in Form 44, ^^c-] II. That the said defendant on or about the day of , 19 , at , made his promissory note in writing, dated that day, whereby, for value received, he promised to pay to the said plaintiff, by name of the trustees of the college, or bearer, dollars, with an- nual interest from the day of > 19 , pay- able when dollars were subscribed toward the endow- nient of said institution, and then and there delivered the same to the plaintiff. III. That before the commencement of this action the sum of dollars was duly and in good faith sub- scribed to the endowment of said institution; that defend- ant was duly notified of the completion of said endowment subscription, and payment of said note was duly demanded. IV. That the plaintiff is now the lawful owner and holder of said note, and that the said defendant has not paid the same, or any part thereof. Wherefore [etc., demand of judgment], 348. On a Note Payable at a Specified Time after Sight. I. [Allege the note as in Forms SSI or 332.] II. That on or about the day of , 19 , said note was duly presented by the defendant [maker], with notice that payment was required according to the terms thereof.^' III. [Allege non-payment, as in the above forms.] Wherefore [etc., demand of judgment]. '8 From the complaint in Genesee " In a note payable at a certain College V. Dodge, 26 N. Y. 213, where lime afler sight, "sight" is a condition it was held that plaintiff need not precedent, and no action will lie aver that the defendant had been until demand has been made. Byles notified of the completion of the on Bills, 219; 2 Am. & Eng. Encycl. subscription, nor that payment of the of La,w, 399. note had been demanded of him. Actions on Promissory Notes 347 349. By an Unincorporated Association on a Note Payable to a Former Treasurer of the Association.^" I. [Allege plaintiff's capacity as officer of the unincorporated association, as in Form 39.] II. That at the time hereinafter mentioned, one M. N. was the [treasurer] of said association. III. That on or about the day of , 19 , the defendant made his promissory note in writing, of which the following is a copy: [copy of note], and thereupon deUvered the same to said M. N., as the treasurer of said association, and for its sole beni^t. IV. That the above named is now the [treasurer] of said association, and said association is the lawful holder of said note." V. That there is now due to the said association thereon, from the defendant, the sum of dollars, with interest from, etc., which plaintiff claims. Wherefore [etc., demand of judgment]. 350. On a Note Wrongly Dated." I. That on or about the day of , 19 , the defendant made and deUvered his promissory note in writing, and by niistake dated the same on the day of , 19 , whereas, in truth, it was intended and designed to bear date on said day of , 19 , *" This form is adapted from Wicks able in the time limited from the true V. Monihan, 130 N. Y. 232, and date. Bank v. Mstler, 4 Hun (N. Y.), Tibbetts v. Blood, 21 Barb. (N. Y.) 633. aff'd, 64 N. Y. 642; ^.Drake v. 650. Kogers, 32 Me. 524; Ahnach v. " See notes to Form 39. Downing, 45 Minn. 460. *' There is no need of bringing an The mistake should strictly be action to reform the contract by in- alleged in the complaint, but where serting the true date. A date is only the i^^intiff ask^ for an amendment presumptive evidence of the time of it should be allowed (Drake v- Rogei-s, actual execution, and such presurop- supra), or where the evidence of tion, if mistake or fraud be alleged, proper date has been received with- may be contradicted by oral evidence out objectiorij the pleading may be to show the true date. When the mis- formally aniended to conform to take of date has been established, the the proof. Almaeh v, Downing, note, by intendment of law, is pay- supra. 348 Abbott's Forms of Pleading and thereby promised to pay the plaintiff [or his order], dollars, days after said {intended date]. II. That no part thereof has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 351. On Lost Negotiable Instrument. [Under N. Y. Code Civ. Pro., § 1917.] [Allege. defendant's making and delivery of the note, and its non-payment, as in Forms 331 or 332. [It is not necessary to allege a tender of an indemnity bond.] *^ III. INDORSEE AGAINST MAKER 352. By First Indorsee; Pleading the Legal Effect. I. On information and belief that heretofore the defend- ant [maker] made and delivered to one M. N. his promissory note in writing, dated on the day of , 19 , at , wherein and whereby he promised to pay to the order of said M. N. dollars, months after said date [or, on the day of . ]. II. That said M. N.*'* thereafter ^nd before its maturity ^' See Read v. Marine Bank, 136 tiff's title to the note is deduced N. Y. 454, 462; Dupignao v. Quick, through a firm, the names of- the 27 Misc. 500, 58 N. Y. Supp. 341, members of the firm need not be aff'g 26 Misc. 872, 56 N. Y. Supp. set out unless they are defendants. 385; Church v. Stevens, 56 Misc. It is sufficient in such cases to allege, 572, 107 N. Y. Supp. 310. generally, that M. N. & Co. indorsed When the loss of the instrument is it. Cochrane v. Scott, 3 Wend. shown on the trial, it is enough for (N. Y.) 229; Bacon v. Cook, 1 Sandf. plaintiff to be then ready with the (N. Y.) 77. See cases cited in note bond of indemnity required by Code to Form 356. Civ. Pro., § 1917. Cases supra. An allegation that a corporation The section has no application to duly indorsed, transferred and deliv- a cause of action founded on a non- ered to the plaintiffs the note sued on, negotiable instrument which has sufficiently implies that the transfer been lost. Zander v. N. Y. Security was made pursuant to a resolution of & Trust Co., 178 N. Y. 208. the board of directors, if such resolu- " If the payees are a partnership, tion is necessary; for the allegation is it is enough here to designate them not true if the transfer was not. made by the firm name. Where the plain- by the proper officer, and according Actions on Promissory Notes 349 indorsed said note [in blank] *'' and delivered the same to the plaintiff ^« [for value] /^ III. That no part thereof has been paid "•* [except the sum of, etc.], and that plaintiff is now the owner and holder thereof.*' Wherefore [etc., demand of judgment]. 353. The Same, Pleaded by Copy.^" I. On information and belief, that heretofore the defend- ant made and delivered his promissory note in writing to one M. N., of which the following is a copy: [Set out copy of note. ]^^ to law. See p. 23 on the effect of an allegation of due action; Nelson v. Eaton, 15 How. Pr. (N. Y.) 305. ** An averment that a note was in- dorsed to A., imports delivery to him. Bank of Lowville v. Edwards, 11 How. Pr. (N. Y.) 216; Appleby v. Elkins, 2 Sandf, (N. Y.) 673; N. Y. Marbled Iron Works v. Smith, 4 Duer (N. Y.), 362; Griswold v. Loverty, 3 id. 690, 12 N. Y. Leg. Obs. 316; Burrall v. De Grpot, 5 Duer (N. Y.), 379; Marston v. Allen, 8 Mees. & W. 494, and cases there cited; and see Purdy v. Vermilya, 8 N. Y. (4 Seld.) 346. An indorsement in blank makes the note payable to bearer. N. Y. Nego. Instr. Law, § 28. Mesne indorsements need not be noticed. Mech. Bank v. Stratton, 3 Abb. Ct. of App. Dec. (N. Y.) 269. ■"After alleging a note payable to a third person, .plaintiff must of course set forth facts showing a trans- fer of title to him. Montague v. Rein- eger, 11 Iowa, 503; Bennett v. Cro- well, 7 Minn. 385. When the complaint alleges that the defendant gave the note to the payee, who indorsed and delivered it to the plaintiff, and the answer does not deny this allegation, the defend- ant cannot prove that the payee had no capacity to transfer, and thus indirectly controvert the transfer. Robbins v. Richardson, 2 Bosw. (N. Y.) 248. " The words "for value,'' are not essential, but may be useful. See note on this point to Form 331. The indorsement, as well as the making of a note, imports a considera- tion; and it is held that no considera- tion therefor need be alleged in pleading. Hook v. Pratt, 78 N. Y. 371; Rubelman v. McNicol, 13 Mo. App. 584; Luning v. Wise, 64 Cal. 410; Wheeler v. Guild, 20 Pick. (Mass.) 550. ** See note 70 on p. 18 on alleging non-payment. *' This averment of continued own- ership is usual, but not essential. First Nat. Bank v. Stallo, 160 App. Div. 702, 145 N. Y. Supp. 747; Poor- man V. Mills, 35 Cal. 118. 5° Under N. Y. Code Civ. Pro., § 534; see Form 332 and notes. *' The copy need not contain a copy of the indorsement, but the fact of indorsement should he alleged as in paragraph II, 350 Abbott's Forms of Pleading II. That thereafter and before its maturity [or, on or about the day of , 19 ], said M. N. in- dorsed said note [in blank] ^^ and delivered the same to plaintiff [for value.] ''•'' III. That no part of said note has been paid, and there is due thereon from defendant to plaintiff the sum of dollars which plaintiff claims. Wherefore [etc., demand of judgment]. 364. Remote Indorsee or Assignee, against Maker. I. [As in Form^ S52 or 353.] II. That thereafter and before its maturity said note was duly indorsed [in blank] and delivered by said M. N. to one C. D.,* who likewise thereafter and before its maturity indorsed the same [in blank] and delivered said note to this plaintiff, for value.'"'' '^ See note on this point to Form 352. " Unnecessary but possibly useful to allege; see note on this point to Form 331. '^The complaint is not bad upon demurrer for omitting to aver a transfer directly to the plaintiff, if it avers indorsement in blank by the payee, and subsequent delivery so indorsed to plaintiff and that tlie plaintiff is the owner. Indorsement in blank makes the note payable to bearer. N. Y. Nego. Instr. Law, § 28. An allegation of ownership is not to be deemed a mei'e conclusion of law, but is an allegation of a fact. See note on page 25; Schofleld v. Whitelegge, 12 Abb. Pr. (N. S.) 320. Conversely, if it sets forth the transfers to him, it need not also allege that he is the owner. Mitchell V. Hyde, 12 How. Pr. (N. Y.) 460; Connecticut Bank v. Siiiith, 17 id. 487; s. c, more fully, 9 Abb. Pr. (N. Y.) 168. The earlier cases under the Code, laid down more technical rules, some of them holding that the com- plaint must trace the plaintiff's title by setting out the successive indorsements. 10 How. Pr. (N. Y.) 233; Id. 33; 12 id. *21. But it is clear that he can only be required to plead that which he is required to prove. He must prove that the note was made by the defendant, and that he became the owner of it before suit brought. The production of the note on the trial indorsed to him or in blank, proves, by a legal presumption, that he became the owner for value, and before maturity. Smith v. Schanck, 18 Barb, (N. Y.) 344; James V. Chalmers, 6 N. Y. (2 Seld.) 209. And evidence on the part of the defendant that the note was a lost or stolen note, me'rely rebuts this presumption, and calls on the plain- tiff for nothing more than direct ev- idence that he took the note in good faith and for value. Mills v. Barber, Actions on Promissory Notes 351 [Or, that thereafter and before its maturity, said note was duly indorsed and delivered by said M. N., and said note so indorsed was delivered for value and before maturity to this plaintiff, who became and is now the owner and holder thereof.] " [// passing to plaintiff by transfer after maturity, allege after * in II, supra; that thereafter the said C. D., for value, transferred and delivered said note to plaintiff, who became and is now the holder thereof.] ^^ III. [Non-payment, as in Forms 352 or 353. Wherefore [etc., demand of judgment]. 1 Mees. & W. 425; De La Chaumette V. Bank of England, 9 Barnw. & C. 208; King v. Milsom, 2 Campb. 5; Miller v. Race, 1 Burr. .452; Grant v. Vaughan, 3 id. 1516; Peacock v. Rhodes, 2 Dougl. 633; Mickle- thwaite v. Thebaud, 4 Sandf. (N. Y.) 97; and see Catlin v. Hansen, 1 Duer (N. Y.), 309; Rochester v. Taylor, 23 Barb. (N. Y.) 18. And the plaintiff is not bound to prove the genuine- ness of intermediate indorsements. Pentz V, Winterbottom, 5 Den. (N. Y.) 51. It is clear, then, on general prin- ciples, that the complaint on a nego- tiable note, even if not drawn under N. Y. Code Civ. Pro., § 534, need not trace the indorsements. It is suffi- cient to aver distinctly the plaintiff's ownership. And the authorities maintain this view. Mechanics' Bank v. Straiten, 3 Abb. Ct. of App. Dec. (N. Y.) 269; Taylor v. Cofbiere, 8 How. Pr. (N. Y.) 385; Benson v. Couchman, 1 Code R. (N. Y.) 119; Loomis V. Dorshimer, 8 How. Pr. (N. Y.) 9; MitcheU v. Hyde, 12 id. 640; Griswold v. Loverty, 3 Duer (N. Y.), 690, 12 N. Y. Leg. Obs. 316; N. Y. Marbled Iron Works v. Smith, 4 Duer (N. Y.), 362; Lee v. Ainslee, 4 Abb. Pr. (N. Y.) 463. See, also, Critchlow v. Parry, 2 Campb. 182; Lambert v. Peck, 1 Salk. 127; Dean V. Hewit, 5 Wend. (N. Y.) 257. ** Mesne indorsements need not be set out. From the averments in Mechanics' Bank v. Straiten, 3 Abb. Ct. of App. Dec. (N. Y.) 269. See also preceding note, and cases cited to ' Forms 355 and 360. After showing title in plaintiff it is not essential to allege that he con- tinues to be the owner of the note. First Nat. Bank v. Stallo, 160 App! Div. 702, 145 N. Y. Supp. 747. The averment that the plaintiff is the owner is sufficient, without adding that he is the holder. ' Rollins v. Forbes, 10 Cal. 299. An averment that "ho is the lawful holder," with- out the word "owner" or an equiv- alent term, might be sufficient. Lee V. Ainslee, 1 Hilt. (N. Y.) 277, 4 Abb. Pr. (N. Y.) 463; Benson v. Couchman, 1 Code R. (N. Y.) 119; Catlin v. Gunter, 1 Duer (N. Y.), 253. The words "for value" in the form are not essential, but may be useful. See note on this point to Form 331. '" Sustained in Cheever v. Pitts- burgh, etc., R. Co., 50 App. Div. 422, 64 N. Y. Supp. 65, aff'd 169 N. Y. 581. 352 Abbott's Forms of Pleading 355. On a Note Payable to Bearer, or to Cash, or to a Fictitious Person's Order, or to the Maker's own Order. 57 I. [On information and belief] that heretofore the de- fendant [maker] made and delivered [to M, N.] his promis- sory note in writing, dated on the day of , 19 , at , wherein and whereby he promised to pay to bearer [or, to M. N., or bearer — or, to bills payable, — or, to cash — or, to the order of the defendant] dol- lars, months after said date [or, on, etc.], for value. II. That said note thereafter and before maturity [was indorsed by said defendant^' in blank, and] was duly de- livered to, and came lawfully to the possession of,"*' the plaintiff [for value],*" and plaintiff has become and is now the owner and holder thereof. III. That no part thereof has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. IV. INDORSEE AGAINST INDORSEE 356. First Indorsee against Payee, Indorser, Pleading Legal Effect. [Sustained in Badt v. Miller, 150 App. Div. 920, 135 N. Y. Supp. 13.] "■' It is provided by statute that a In Laiag v. Hudgens, 82 Misc. note or draft, payable to a fictitious 388, 143 N. Y. Supp. 763, it was held or non-existing person and negotiated that the allegation that the note by the maker, with knowledge, or "came lawfully into the possession when the name of the payee does of plaintiff" was not equivalent to not purport to be the name of any an averment that he was a holder in person, is payable to bearer. N. Y. due course. But under § 98 of the Negotiable Instr. Law, § 28. Nego. Instr. Law, the holder is pre- '^A note drawn to the maker's sumed so to be, and an allegation own order, must be indorsed by him thereof is unnecessary; the allegation in order to be complete. N. Y. as presented is only intended to Nego. Instr. Law, § 320. show that plaintiff became the *' Mesne indorsements of a note holder. made or indorsed payable to bearer ^ Not necessary but possibly use- need not be alleged nor proven, ful; see note on this point to Form Mechanics' Bank v. Straiten, 3 Abb. 331. Ct. of App. Dec. (N. Y.) 269. Actions on Promissory Notes 353 I. [Upon information and belief] that heretofore one M. N. [or, M. N. & Co.] " made and delivered to the defendant his [their] promissory note in writing, dated on the day of , 19 , at , and thereby promised to pay to the order of defendant [or to bearer] ^^ dollars, days after said date [or, on, etc., — or, on demand.*'] ^ II. That the defendant [indorser] thereafter and before the matm-ity of said note ^* duly indorsed *' and delivered the same to the plaintiff [for value].** ^ III. That at maturity [or, on the day of , *' It is not necessary to state the names of the partners at large, in suing on a note made or indorsed by a copartnership, when the suit is not brought against them. Cochrane V. Scott, 3 Wend. (N. Y.) 229; Bacon V. Cook, 1 Sandf. (N. Y.) 77; Childress u. 'Emory, 8 Wheat. 642; Stout v. Hicks, 5 Blackf. (Ind.) 49. '" The note must be negotiable in order to hold the defendant as an indorser. Hillborn v. Penn. Cement Co., 145 App. Div. 442, 129 N. Y. Supp. 957. " See Form 358, to charge indorser on demand note. '* The presumption by statute is that an indorsement is made at the place the note is dated (N. Y. Nego. Inst. Law, § 76) and at com- mon law where the note is dated and payable. Chem. Nat. Bank v. Kel- logg, 183 N. Y. 92. No allegation as to place is therefore necessary unless plaintiff desires to overthrow the presumption and show indorse- ment at a different place aa material to the indorser's obligation. Even if the transfer to plaintiff be subsequent to maturity, demand of payment, and notice to indorser must be alleged. See Form 378; Moore v. Alexander, 63 App. Div. IdD, 71 N. Y. Supp. 420; Alleman v. Bowen, 15 N. Y. Supp. 318; Kennan V. McRae, 3 Stew. & P. (Ala.) 249. '* In an action against a corpora- tion, as indorser of a promissory note, if the complaint alleges that the note was duly indorsed by the de- fendant, that is sufficient (see general note on p. 23; Youngs v. Perry, 42 App. Div. 247, 59 N. Y. Supp. 19; Elmendorf v. Shotwell, 15 N. J. L. 153); as it implies that the note was lawfully indorsed by it, and the burden is thrown on the de- fendant, to plead and prove that it was not lawfully done. It need not be averred in the complaint that the note was indorsed by the defendants in the course of their legitimate business. Mechanics' Banking As- sociation V. Spring Valley Shot & Lead Co., 25 Barb. (N. Y.) 419; Nelson v. Eaton, 15 How. Pr. (N. Y.) 305; Andrews v. Astor Bank, 2 Duer (N. Y.), 629; Price v. McClave, 6 id. 544; affirming s. c, 5 id. 670; and 3 Abb. Pr. (N. Y.) 253. ** See note on presumption of consideration, and possible useful- ness of allegation "for value," to Forms 331 and 352. 354 Abbott's Forms of Pleading 19 ], said note was duly presented " for payrnent at the place where by its terms it was payable, and payment thereof then and there duly demanded but refused, and the same was not paid, [whereupon said note was duly protested for " In a complaint against indorser, on a note payable at a particular • place, presentment and demand at that place is sufficiently alleged if it be averred that the note was duly presented for payment, etc. Wood- bury V. Sackrider, 2 Abb. Pr. (N. Y.) 402; Gay v. Paine, 5 How. Pr. (N. Y.) 107; Femer v. Williams, 14 Abb. Pr. (N. Y.) 215; Adams v. Sherrill, 14 How. Pr. (N. Y.) 297; Chemical Nat. Bank v. Carpentier, 9 Abb. N. C. (N. Y.) 301; see, also, Cutler v. Ainsworth, 21 Wise. 381; People's Bank v. Scalgo (Sup. Ct. Mo., 1895), 29 S. W. Rep. 1032. The particular day of demand and notice need not be alleged. Norton v. Lewis, 2 Conn. 478; Smith v. Raymond, 9 Port. (Ala.) 459. See as to the force of the word "duly," general note on that point on p. 23, and cases cited. It seems to be conceded that it is not necessary to show by whom present- ment was made, and it has been held that an allegation of presentment of a bill for payment by a certain per- son, does not require proof of pre- sentment by such person. Boehm v. Campbell, Gow. 55; s. c, 5 Eng. Com. L. R. 459; and see Hunt v. Maybee, 7 N. Y. 266. But an allega- tion of non-payment does not dis- pense with an allegation of present- ment, and the converse is equally true. Bank v. Martin, 11 Abb. Pr. (N. Y.) 291. Where the complaint averred that on the day the note fell due it was, "by the Bank of C, which then held the same," presented for payment, it was held that the latter was not an allegation of ownership by the Bank of C, but at most, of a deposit of the note and a holding of the same as the agent of the plaintiff. Farmers & Mechanics' Bank v. Wadsworth, 24 N. Y. 547. Where the note is made payable at a particular bank, and the bank itseK is the holder, an averment and proof of demand at the place designated may be dispensed with. Bank of U. S. V. Smith, 11 Wheat. 171; Dyk- man v. Northbridge, 1 App. Div. 26, 36 N. Y. Supp. 962, aff'd 153 N. Y. 662. Facts excusing presentment and notice are not admissible under an averment of due demand and notice. If the plaintiff wishes to prove such excuse he must plead the facts con- stituting it. Bird v. Kay, 40 App. Div. 533, 58 N. Y. Supp. 170. For such averments, see Forms 363 and 365. An averment in a complaint against an indorser, that the note was pre- sented to the maker and payment demanded, is proper when it was in fact presented at the last place of residence and business, from which he had then recently removed, and after diligent inquiry he could not be found so that it could be pre- sented to him personally. Paton v. Lent, 4 Duer (N. Y.), 231. . And see Hine v. AUeley, 4 Barnw. & A. 624. And where no place of payment was specified in a note made by a partner- ship since dissolved by bankruptcy, held, that a demand upon one of the former partners was sufficient to charge the indorser. Gates v. Beecher, 60 N. Y. 518. Actions on Promissory Notes 355 non-payment**], of all of which ** due and timely notice was given '" to the defendant [indorser].''^ " An averment of due protest does not imply the necessary previous de- mand. Price V. McClave, 6 Duer (N. Y.), 544. Nor does it imply no- tice of dishonor to the indorser. Cook V. Warren, 88 N. Y. 37; contra, Wards v. Sparks, 53 Ark. 519, 14 S. W. Rep. 898. Notarial protest is not necessary to charge the in- dorser upon a promissory note. McBride v. 111. Nat. Bank, 138 App. Div. 339, 121 N. Y. Supp. 1041. It is only practiced as a convenient method of effecting demand and no- tice, and preserving proof of those facts in those States where, as in this State, it is permitted by statyte. N. Y. Code Civ. Pro., § 923. They are facts which may be proved in other ways, and the act of protest, as evidenced by the notarial certificate, is merely one form of evi- dence of those facts, and need not be pleaded. In Turner v. Comstock, 1 Code R. 102, where it was said that the complaint must show that the note was protested, the word protest was undoubtedly used in its popular sense of demand and notice of non- payment. An averment, that "when it came due it was protested for non-payment, and due notice of protest was given," is not equivalent to an averment that the note had been duly pre- sented for payment to the maker, and that payment had been refused; and ' for this defect the complaint was held demurrable. Price v. Mc- aare, 3 Abb. Pr. (N. Y.) 253. An averteent of due demand, and due . protest for non-pajmient, without alleging notice to indorser, is in- sufficient to chat'ge him. Cook v. Warren, 88 N. Y. 37. It is not enough that the indorser had knowledge of the non-payment; he is entitled to notice. Where no- tice is material, an averment of facts "which defendant well knew," has been held not equivalent to aver- ment of notice. Colchester v. Brooks, 7 C. B. 339, 53 Eng. Com. L. R. 339. "' An allegation that the note was duly presented and payment de- manded, but it was not paid, and due notice of non-payment was given, etc., is insufficient. Due notice of demand, as well as of non- payment, must be alleged. Pahquio- que Bank v. Martin, 11 Abb. Pr. (N. Y.) 291. A general averment of notice of all the premises was held sufficient in Boot V. Franklin, 3 Johns. (N. Y.) 207; Hill v. Planters' Bank, S.Humph. (Tenn.) 670; Proudfit v. Murray, 1 Call (Va.), 394; Jones v. Robinson, 8 Ark. 484; Loose v. Loose, 36 Pa. St. 538; or of due notice. Dwight v. Wing, 2 McLean, 580. ™ Oral notice is sufficient, and sus- tains an allegation that notice was "sent." Kelly v. Theiss, 77 App. Div. 81, 78 N. Y. Supp. 1050. '^ Essential to allege notice to indorser. Hammil v. Washburn, 49 App. Div. 119, 62 N. Y. Supp. 1095. Or facts excusing, see Form 365. Notice to maker is not necessary. Badt V. MiUer, 150 App. Div. 920, 135 N. Y. Supp. 13. If the indorser of a note dies before its maturity, the allegation in an action against his representatives, must be of no- tice to them as such, and not to the indorser. Stewart v. Eden, 2 Cai. (N. Y.) 121. 356 Abbott's Foems of Pleading / IV. That the cost of said protest thereof was dollars, which plaintiff was obliged to and did pay. ^ V. That no part of said note, or the cost of protest thereof, has been paid [except the sum of, eic.] Wherefore {etc., demand of judgment], 357. The Same, Pleading by Copy." [Sustained in Lafayette Trust Co. v. Lacher, 139 App. Div. 797, 124 N. Y. Supp. 401.] I. [On information and belief] that heretofore and on or about the day of , 19 , at one M. N. made and delivered to the defendant his promis- sory note in writing, as follows : [Set forth a verbatim copy of the note.] II, III, IV as in- preceding form. V. That no part of said note, or .the cost of protest thereof, has been paid, and there is now due thereon from defendant to plaintiff the sum of dollars, which plaintiff claims." Wherefore [etc., demand for judgment]. 358. Same against Same, on Demand Note.^^ I. [As in Form 356 or Form S57.] " Under N. Y. Code Civ. Pro., ruling Germ. Am. Bank v. Mills, 99 § 534. See notes to Form 331. App. Div. 312, 91 N. Y. Supp. 142. " It is held in Lafayette Trust While in this case the court held that Co. V. Lacher, supra, to be sufficient what was a reasonable time, if the to allege the non-payment of the facts were undisputed, was a question note, without the further allegation of law for the court, I beheve that in the wording of the Code section. the plaintiff can always allege com- '* Under the present Negotiable pliance as a pleadable fact. Instruments Law (of nearly uniform A note payable with interest "on adoption throughout the United demand after date," not negotiated States) it is held in New York that a until ten days after date, and nothing demand note must be presented for to indicate expectation of prompt payment within a reasonable time in presentment, if presented within ten order to hold an indorser thereon, months is presented within a reason- and that the allegation and proof of able time suflBcient to bind indorser. such presentation is a part of the Schlesinger v. Schultz, 110 App. Div. plaintiff'^ case. Comm. Nat. Bank v. 356, 96 N. Y. Supp. 383. Zimmerman, 185 N. Y. 210, over- An excuse for delay in presentation Actions on Promissory Notes 357 II. That the defendant at " and on or about the day of , 19 , indorsed and delivered said note to plaintiff. III. That on the day of , 19 , which was within a reasonable time after its issue, said note was duly pre~sented for payment [continue from this point as in Form 356, paragraph III.] ^* IV and V asin Forms 356 or 357.] Wherefore [etc., demand for judgment]. 359. Approved Form in Common-Law State. [Sustained in Bartlett v. Leathers, 84 Me. 241, 24 Atl. Rep. 842.] I. [As in Form 356.] II. The said defendant L. [indorser] thereafter, on the same day, indorsed and delivered the said note to the plaintiff, and the plaintiff avers that afterwards, when the said note became payable, namely, on the day of , 19 , at aforesaid, the said note was duly presented to the said H. [maker], and payment of the said sum, according to the tenor of the said note, was then and there duly re- quested of the said H., who then and there refused to pay the same, of all of which the said defendant L. thereafter, on the same day, had notice, by reason whereof the said de- fendant L. became liable, and in consideration thereof then and there promised the plaintiff to pay him the amount of the said note, with interest, when thereunto requested." must be pleaded. Jerome v. Steb- in case of non-payment by the maker, bins, 14 Cal. 457. We find, however, the declaration to J' See note 64 to Form 356. be of standard form in both ancient ™ A formal presentment and de- and modern use. The words ' in mand is essential to charge indorser. consideration of in the count apply State of N. Y. Nat. Bank v. Kennedy, to all preceding matter, and amount 145 App. Div. 669, 130 N. Y. Supp. to an averment that the note was 412. indorsed for value." " The court said: " It is objected by Practically all of the various States defendant, on demurrer to the decla- have adopted the Uniform Negotiable ration, that no consideration is al- Instruments Law, under which the leged for his promise to pay the note preceding forms have been prepared. 358 Abbott's Forms of Pleading 360. Remote Indorsee against the Payee, IndorserJ* As in either F&rm 356 or 357 substituting for paragraph II, That the defendant then and there [or, thereafter] indorsed the same [in blank]/^ and dehvered it so indorsed; and there- after and before maturity thereof [or, before this action] it lawfully came for value into the possession of the'plaintiff , who then became and is now the owner and holder thereof. 361. Remote Indorsee against all Prior Indorsers. [Sustained in Badt v. Miller, 150 App. Div. 920, 135 N. Y. Supp. 13.] I. [On information and belief] that heretofore one M. N. made and delivered his promissory note in writing, dated on the day of , 19 , at , wherein and whereby he promised to pay to the order of the defend- ant [payee] dollars, days after said date [or, on, etc.]. [Or, plead by copy as in Form 357.] II. That the said defendant [payee] then and there [or, thereafter and before maturity] indorsed the same in blank and delivered the same to the defendant [name] and thereafter and before its maturity the defendants [names] successively indorsed the same in blank and delivered it so indorsed. III. That thereafter and before the maturity thereof the defendant [last indorser] indorsed said note in blank and delivered the same to the plaintiff for value, and that plaintiff then became and is now the owner and holder thereof. [Continue as in Form 356, paragraphs III, IV and V.] ™ This form has been used success- the note payable to bearer (N. Y. fully by plaintiffs in Pryor v. Storke, Nego. Instr. Law, § 28), and in an ac- 37 App. Div. 364, 56 N. Y. Supp. 94, tion upon such an instrument, pl^in- and Karsch v. Pottier & Stymus Mfg. tiff need not aver nor prove the Co., 82 App. Div. 230, 81 N. Y. Supp. transfers through which he derived his 782, where, no question was raised title. Mechanics' Bank v. Straiton, upon the complaint. 3 Abb. Ct. App. Dec. (N. Y.) 269. " An indorsement in blank renders See notes to Forms 354 and 356. Actions on Promissory Notes 359 362. By an Indorsee, who has Paid Note in Hands of Subsequent Holder, against a Prior Indorser. I and II [Allege as in Form 356]. III. That thereafter and prior to the maturity thereof plaintiff duly indorsed and deUvered said note to one M. N. IV. On information and belief [continue as in paragraph III of Form 356, substituting at the end:] of all of which due notice was given to plaintiff and defendant. [V. That immediately upon receiving said notice of the presentment and non-payment of said note, plaintiff duly gave to the defendant a like notice thereof.^"] VI. That thereafter and prior to the commencement of this action plaintiff was compelled to and did pay said note [together with dollars expense of protest thereof]. VII. That plaintiff has duly notified defendant of his said payment of said note, and has demanded of defendant that he pay to plaintiff the amount so paid by plaintiff, but no part thereof has been paid to plaintiff by defendant [or by any other person liable thereon to plaintiff]. Wherefore [etc., demand for judgment]. 363. Averment of Excuse for Non-presentment; Where the Maker Could not be Found." [For III in Form 356, substitute:] III. That at the maturity of said note, diligent search and inquiry were made for said [maker] at [the place of date], in order that the same might be duly presented to him for payment, but he could not be found, and the same was not *> See N. Y. Nego. Instr. Law, ing for maker's residence or office will § 178. excuse demand depends upon the " This form is for use only when no peculiar circumstances of each case, particular place of payment is speci- Univ. Press v. Williams, 48 App. Div. fied. K the note was drawn payable 188, 62 N. Y. Supp. 982; Bank of at a particular place, and was pre- Port Jefferson v. Darling, 91 Hun, sented there, the preceding forms 236, 36 N. Y. Supp. 153; Brewster v. averring regular demand and notice Shrady, 26 Misc. 480, 57 N. Y. Supp. may be used. See Taylor v. Snyder, 606; Gumming v. Roderick, 28 App. 3 Den. (N. Y.) 145. Div. 253, 60 N. Y. Supp. 1053, aff'd What degree of diligence in search- 167 N. Y. 571. 360 Abbott's Forms of Pleading paid, whereupon said note was duly protested for non-pay- ment; of all which due notice was given to the defendant. 364. The Same; Death of Maker, or one Primarily Liable.*^ [Under N. Y. Nego. Instr. Law, § 136.] III. That, prior to the maturity of said note, and on or about the day of , 19 , said [maker] died, and no personal representative was thereafter appointed [until on or about and after the maturity thereof] ; that the defendant [indorser] was duly notified by plaintiff that said note was not paid at maturity. 365. The Same, where the Indorser has, before Maturity, Waived Presentment, Demand and Notice.*' [Substitute for III in Form 356.] III. That at [or, before] the maturity of said note, said defendant duly waived its presentment to and demand for payment of said [maker] and notice to defendant of the non- payment thereof, [state how, as:] by notifying plaintiff that he waived such presentment, demand and notice.*^ 366. The Same; Waiver by Indorser's Request to Holder to Delay Presentment and Protest.*' - [Substitute for III in Form 356.] III. That on or about the day of , 19 , said defendant [indorser] requested plaintiff to hold the note for a period of days without doing anything toward *^ The indorser must be notified oi mand and notice. Bird v. Kay, 40 tlie non-payment. Reed v. Spear, App. Div. 533, 58 N. Y. Supp. 170. 107 App. Div. 144, 94 N. Y. Supp. Waiver of notice of presentment, 1007. dishonor and protest is not a waiver Unless the complaint shows that of presentment. Hayward v. Empire the note had no specified place of State Sugar Co., 105 App. Div. 21, 93 payment, this fact should also be N. Y. Supp. 449, aff'd 191 N. Y. 536; alleged, as it is only to such a note Congress Brewing Co. v. Habenicht, that the section applies. 83 App. Div. 141, 82 N. Y. Supp. 481. " Under N. Y. Negotiable Instru- '* See general note on alleging ments Law, § 142. waiver, p. 26, and cases cited. Evidence of waiver is inadmissible ^^ From Bush v. Gilmore, 45 App. under allegations of presentment, de- Div. 89, 61 N. Y. Supp. 682. Actions on Promissory Notes 361 presenting the same, and that within such period the same would be paid; that plaintiff pursuant to such request waited untU the day of , 19 , after ma- turity thereof, and the same not having been paid, duly presented said note for payment and demanded payment, but payment was not made, and plaintiff on said day gave notice of presentment and non-payment to said defendant [indorser]. 367. The Same, Alleging Facts from which Implied Waiver would Arise. [Sustained in O'Bannon Co. v. Curran, 129 App. Div. 90; 113 N. Y. Supp. 359.] '' That before the said note became due, according to its terms, and on or about the day of , 19 , an involuntary petition in bankruptcy was filed against the said Company [maker] and a receiver thereof duly appointed; that on said day, the defendant, as president of said company, pursuant to a vote of the board of directors, filed a written admission of its inability to pay its debts and a willingness that it be adjudged a bankrupt, and that said company was so adjudged on the day of , 19 ; that at the maturity of said note, said company was insolvent and a bankrupt, its business suspended, its place of business closed, and its property in the possession of said receiver, and that said note was not paid, of all of which facts the defendant then had actual knowledge. 368. The Same, where Waiver was Made after Maturity.*'^ [Under N. Y. Nego. Instr. Law, § 180.] ™ Held, that while mere insolvency maker had transferred all its property of the maker was not enough, the before maturity of the note, had additional facts of the indorser'a ceased business and had become consent and co-operation in making "practically defunct." Moore v. it impossible for the maker to pay Alexander, 63 App. Div. 100, 71 excused the notice of non-payment. N. Y. Supp. 420. It is insufficient to excuse present- " A waiver of notice of dishonor ment to allege that the corporation does not operate as a waiver of pre- 362 Abbott's Forms op Pleading [Substitute for III in Form 356.] III. That the defendant, will full knowledge ^* that plain- tiff had omitted to present said note for payment and to demand payment thereof and to notify defendant of the non-payment thereof, heretofore and on or about the day of , 19 , waived plaintiff's said omission so to do, and then and there promised to pay said note [and sub- sequently thereto has paid the sum of doUars thereon.] 369. On a Note which may not be Valid as against the Maker and Avoiding that Issue.^^ I. Thatjthe defendant indorsed and dehvered to plaintiff a promissory note, made [or, purporting to have been made] sentment and demand. Baer v. Hoffman, 150 App. Div. 473, 135 N. Y. Supp. 28. If the waiver was before matm'ity, it is considered as an estoppel. Coddington v. Davis, 1 N. Y. 186; and see Holmes v. Holmes, 9 id. 525. As to a promise of payment made subsequent to maturity, a distinction is taken between a promise by the indorser proved as presumptive evi- dence of actual notice having been given him, and a promise proved as evidence of a waiver of the holder's admitted laches in not having given notice. Tebbetts v. Dowd, 23 Wend. (N. Y.) 379; Miller v. Hackley, 5 Johns. 375; Duryee v. Denison, Id. 248; Thornton v. Wynn, 12 Wheat. 183; Leonard v. Gary, 10 Wend. (N. Y.) 504; Agan v. McManus, 11 Johns. (N. Y.) 180; Lundie v. Rob- ertson, 7 East, 331; and see Taylor t>. Jones, 2 Campb. 105; Dorsey v. Wat- son, 14 Missouri, 59; James v. O'Brien, 26 Eng. L. & Eq. R. 283; De- Wolf V. Murray, 2 Sandf. (N. Y.) 166; Metcalfe v. Richardson, 73 Eng. Com. L. R. 1010. A iR'omise' relied on as presumptive evidence of notice given, should not.be pleaded; it is merely one form of evidence of notice as averred. But a promise relied on as to establish a WaijiBr of an ac- knowledged omission te gi'sp notice should be pleaded. Spang v. Mc- Garry, 1 West. L. Monthl. 406. ** An allegation that the indorser's promise was made with full knowl- edge that he stood released from the obligation, was held essential in Free- man V. O'Brien, 38 Iowa, 406. ^ This form is from the Report of the Commissioners of the Code, p. 40, and is there recommended for use in all actions against indorsers only, on the ground that it will avoid all dan- ger of misleading the defendant into immaterial issues, since he is es- topped by his indorsement from denying the making of the note, al- though the maker's signature might be a forgery; and, therefore, the only material issue is, whether he indorsed such a note. Actions on Promissory Notes 363 by one M. N., dated on the day of , 19 , at , for the sum of ' dollars, payable to the order of defendant [or, one 0. P.], days after date [and indorsed by the(,said 0. P. to the defendant]. [Contimie as in Form 356, paragraphs III, IV and V.] 370. Against Indorser, who Indorses after Maturity.^" I. [AsinF(yrmS5.6.] II. That the defendant subsequent to the maturity of said note and on or about the day of , 19 •, indorsed and deUvered the same to the plaintiff [for value]. III. That within a reasonable time after said indorse- ment and delivery, to wit, on or about the day of , 19 , said note was duly presented for payment to the said [maker] and payment thereof then and there de- manded, but the same was not paid, of all of which due notice was thereupon given to defend^nt.^^ V. INDORSEE AGAINST MAKER AND INDORSER "^ 371. First Indorsee against Maker, and Payee, Indorser. I. [On information and belief] That heretofore the de- fendant [maker] [or, the defendants, naming the makers, under their firm name of W. X. & Co.] made his [their] promissory note in writing, dated on the day of , 19 , at ; wherein and whereby they promised to pay to the order of the defendant [indorser] [or, to the order of the defendants, naming the indorsers, under their firm name of '" Adapted from German-Am. Bank bills and notes, may be sued together v! Atwater, 165 N. Y. 36. in New York. " The holder's obligation, in order For complaints on a promissory to charge the indorser of past due note, in an action against a maker and paper, is as here set forth. See above indorser before delivery, see Forms case. 373-377. '2 Under N. Y. Code Civ. Pro., This form is supported by Badt r. § 454, persons severally liable on the Miller, 150 App. Div. 920, 135 N. Y. same written instrument, including Supp. 13. 364 Abbott's Forms of Pleading Y. Z. & Co.], dollars, days after said date [or, on, etc.]. [Continue as in Form 356.] 372, Remote Indorsee against Maker, First Indorser, and a Later Indorser.'^ I. [As in preceding form.] II. That thereafter and prior to the maturity of said note, the defendant [naming the payee] indorsed the same [in blank], and delivered it so indorsed. III. That thereafter and prior to the maturity of said note the defendants [naming the later indorsers] [under their firm name of U, V. & Co.] indorsed the same in blank, and delivered it so indorsed, and thereafter and before its ma- turity it was duly delivered to and lawfully came to the possession of the plaintiff for value, who is now the owner and holder thereof. [Continue as in Form 356, from beginning of paragraph III.] VI. INDORSER BEFORE DELIVERY 373. Payee against Indorser before Delivery. [Under N. Y. Nego. Instr. Law, § 114.] "« I. That on or about the day of , 19 , at , the defendant [or, one] W. X. made his prom- issory note in writing dated on said day, tvherein and whereby he promised to pay to the order of the plaintiff at , months after date, the sum of dollars. II. That prior to the delivery of said note to plaintiff, '^ From Ferber v. Third Street the accommodation of the payee, the Bailway Co., 166 App. Div. 736, 152 indorser may so show by parol N. Y. Supp. 352. evidence if he has so pleaded as an "This section (which is a part of affirmative defense. Haddock, etc., the uniform Nego. Instr. Law adopted Co. v. Haddock, 192 N. Y. 499, ap- in identical form in many States) proving Kohn «. Cons. Butter & Egg changes the common-law rule so as to Co., 30 Misc. 725, 63 N. Y. Supp. 265; render the irregular indorser prima Corn v. Levy, 97 App. Div. 48, 89 fade liable as- first indorser; if, in N. Y, Supp. 658. fact, the indorsement was made for Actions on Promissory Notes 3«5 the defendant Y. Z. placed his signature in blank thereon and indorsed the same.*^ III. That thereafter and before its maturity said [de- fendant] W. X. dehvered said note to plaintiff. [Allege presentment, demand, non-payment and notice to defendant indorser, as in Form 356.] 374. The Same, Under Law Merchant, Payee Having Parted with Value on the Faith of the Indorsement.'^ [Not for use in states which have adopted the Uniform Negotiable Instruments Law.] ^ This is an essential allegation, and the burden of proof lies on plain- tiff. Bender v. Bahr Trucking Co., 144 App. Div. 742, 129 N. Y. Supp. 737. " In the absence of statute enacting a different rule {i. e., § 114 of the New York Negotiable Instruments Law), the indorser of a note, payable to the order of another, is presumed to have intended to become liable as sec- ond indorser, and is not liable uponi the note to the payee, who is sup- posed to be the first indorser. But this presumption may be rebutted by showing that the indorsement was made prior to its delivery and to give the maker credit with the payee, in which case the party so making it becomes liable as first indorser. Davis V. Biy, 164 N. Y. 527; Haddock, etc., Co. V. Haddock, 192 N. Y. 499; Coulter V. Richmond, 59 N. Y. 478. In the United States courts the liability is that of joint maker. Good V. Martin, 95 U. S. 92; Bank v. Lock, etc., Co., 24 Fed. Rep. 221. In order to overcome the above- mentioned presumption at common law, the payee should allege that the note was thus indorsed to give credit to the note with the payee, and that the payee has parted with value upon the credit of such indorsement. Her- rick V. Carman, 12 Johns. (N. Y.) 160j Nelson v. Debois, 13 id. 175; Camp- bell V. Butler, 14 id. 349; Hall v. New- comb, 7 Hill, 416; Moore v. Cross, 19 . N. Y. 227; Baooaf. Burnham, 37 id. 614; Phelps v. Vischer, 50 id. 69; Coulter V. Richmond, 59 id. 478; Draper v. Chase Mfg. Co., 2 Abb. N. C. (N. Y.) 79. No consideration need be alleged in Missouri. First Nat. Bk. J). Landis, 34 Mo. App. 433. By § 114 of the N. Y. Negotiable Instruments Law (L. 1909, c. 43), it is provided that where a person not otherwise a party to the note, places thereon his signature before deUvery he is liable to the payee as indorser. The statute has destroyed the pre- sumption which the courts have held has heretofore existed, i. e., that the irregular indorser intended to become liable as second indorser only. Had- docTf, etc., Co. V. Haddock, 192 N. Y. 499. A person signing his name on the back of a non-negoHahle note before delivery, does not become an indorser of it with the rights and Uabilities of a simple indorser, but he can be held as a joint maker of the note or a guar- antor of its payment. See Form 375. McMullen v. Rafferty, 89 N. Y. 366 Abbott's Forms of Pleading I. That on or about the day of , 19 , at , the defendant W. X. made his promissory note in writing, dated^n that day, and thereby promised to pay to the order of the plaintiff, at , the sum of dollars, months after said date [or, on, etc.]. II. That prior to the delivery of said note to plaintiff, the defendant Y. Z. indorsed said note for the purpose of giving credit thereto with plaintiff, and with intent to charge himself as first indorser thereupon. III. That thereafter the defendant W. X. deUvered said note so indorsed to plaintiff, and that plaintiff, upon the credit of said indorsement, gave value therefor.^'' [Allege presentment, demand, non-payment and notice to indorser, as in Form 356.] ^^ Wherefore [etc., demand of judgment]. . 376. Against Maker and Irregular Indorser of Non- negotiable Note.^' I. That on or about the day of , 19 , 456; Roe v. HaUett, 34 Hun (N. Y.), 128. " Sufficient as against a demurrer to- show that a consideration exists. Lynch v. Levy, 11 HiU (N. Y.), 145. But an averment that "prior to its de- livery the note was duly indorsed for value by the defendant Y. Z.," is in- sufficient to overcome the presump- tion that he intended to become liable only as a second indorser. The Edi- son Gen. Elec. Co. v. Zebley, 72 Hun, 166, 25 N. Y. Supp. 389. ** In jurisdictions where the irregu- lar indorser is held liable as a joint maker, guarantor or surety, the alle- gations essential to charge an indorser may be omitted. Where the complaint contained the ordinary allegations to charge de- fendants as indorsers waiving pro- test, and the answer set up that tl^e indorsements were made prior to delivery to the payee, a reply was filed admitting the irregularity of the indorsement, and that it was made for the purpose of giving the maker credit with plaintiff, etc. A judg- ment for the plaintiff, on evidence sustaining the averments of the reply, was reversed on appeal, on the ground that the complaint showed no liability on the part of defendants as joint makers, and that the reply could not vary the character of the Uability charged in the complaint. Deering v. Creighton, 19 Oreg. 118, 24 Pac. Rep. 198. " From McMullen v. Rafferty, 89 N. Y. 456, where it was held that a person so signing his name on the back of a non^negotiable note could be treated by the maker either as a joint maker or guarantor. Actions on Promissory Notes 367 at , the defendant Y. Z. made his promissory note in writing, in the words and figures, of which the following is a copy: [Date.] "On demand, I promise to pay A. B. dollars for value received, with interest from , 19 . (Signed) Y. Z." (Indorsed) M. Z. II. [On information and belief] that the defendant Y, Z., the maker of said note, after making the same, and before delivering the same, and before the maturity thereof, applied to the defendant M. Z. for a loan to him, said Y. Z., of his, said M. Z.'s credit, which said M. Z. thereupon agreed to make by indorsing his name upon the back of said note, [for the purpose and with the intent of making himself liable thereon,^ as first indorser,'"" to the plaintiff,] provided the said plaintiff would deliver up and surrender to said Y. Z. certain promissory notes, of which the said plaintiff was the owner and holder, and upon which the said Y. Z. was then liable as maker, and the said M. Z. as indorser. III. That the said plaintiff thereupon did deliver and surrender to the said defendant Y. Z. upon the credit of said indorsement of defendant M. Z., and in fulfillment of the purpose for which the said M. Z. lent his credit in form as aforesaid, of all which pm-pose and facts all the parties hereto had timely notice and knowledge. IV. That the said defendant M. Z. knew and intended and agreed when he indorsed said note that the same should be enforced against him by the plaintiff in the event of non- payment thereof, and that the plaintiff delivered up and siurendered the notes hereinbefore mentioned in considera- tion therefor and upon that understanding. [V. That on the day of , 19 , the said note was duly presented for payment to the said Y. Z. and "" This allegation of the character actual liability assumed was held to of the defendant's intended liability be as joint maker or guarantor. Appears in the precedent, but the 368 Abbott's Forms of Pleading payment thereof demanded of him, which he refused; and that due notice thereof was given by plaintiff to the said defendant M.Z.]'" VI. That no part of said note has been paid [except, etc.]. Wherefore [etc., demand of judgment]. 376. The Same, Shorter Form, the Maker a Corporatioii.i''^ I. [Allege the corporate capacity of defendant maker as in Forms 44> ^'^-l II. That the defendant corporation, for value received, on or about the day of ; 19 , executed and delivered to the plaintiff a promissory note, of which a copy, with names and indorsements on the back, is as fol- lows: "f [Date.] "Six months after date, we promise to pay*to the Co., at the office of said company in the city of New York, dollars for value received. [Here followed the or- dinary clauses in a collateral note.] "The M. A. Club, "[Seal] by ,Prest." {Indorsed) W. X., Y. Z. III. That prior to the delivery of the note, the said de- fendants [naming them], for value received and for the pur- pose of inducing plaintiff to accept and discoimt said note, placed their names upon and delivered to plaintiff said note so indorsed in order to secure payment thereof to plaintiff, and for the purpose of becoming liable to plaintiff for such payment, and said defendants thereby became liable to plaintiff for the payment thereof. IV. That plaintiff, relying upon the representations of the defendants, was thereby induced to and did accept and dis- "" Unnecessary in those jurisdic- murrer by one of the irregular in- tions where such an indorser is held dorsers, in N. Y. Security & Trust as a joint maker or a guarantor. Co. v. Storm, 81 Hun, 53, 30 N. Y. '"2 Complaint sustained against do- Supp. 605. Actions on Promissory Notes 369 count said note, and paid the amount less discount to the said [maker]. V. That the plaintiff ever since has been and is the legal holder and owner thereof, for value, and that there is due thereon from the defendants to plaintiff the sum of dollars, which plaintiff claims. Wherefore [etc., demand of judgm,ent]. 377. The Same, on a Non-negotiable Note, Sustained in South Carolina. >»' [From complamt in Watson v. Barr, 37 South Car. 463, 16 S. E. Rep. 188.] I. That this action is founded upon an instrument for the payment of money only, made and delivered by the de- fendants to the plamtiff, of which the following is a copy: "Anderson, S. C, Feb. , 19 . "One day after date I promise to pay to [plaintiff], dollars, for value received. "Witness my hand and seal. "W. F. B. [l. s.] "J. F. B. "W. D. B." The last two names being signed on back of said note. II. That no part thereof has been paid except the sum of dollars, balance of account, credited on said note ,19 , and there is now due and owing this plaintiff on said note by the said defendants dollars, with interest thereon at the rate of per cent, from the day of , 19 , less said credit of dollars, which plaintiff claims and demands judgment for, together with the costs of this action. Wherefore [etc., demand of judgment]. ™ This form is manifestly bad in his name anywhere on the note it is N. Y. (see two preceding forms and evidence that he holds himself out as notes). The South Carolina court responsible for the payment of the say: "This belongs to that class of note and he should be treated as cases where if a third person writes maker of the note." 370 Abbott's Forms of Pleading VII. BY TRANSFEREES OF NEGOTIABLE PAPER, NOT CLAIMING BY INDORSEMENT, ETC. 378. By a Transferee of a Note, against Maker."** I. [Plead the instrument, as in Forms SSI or S32.] II. That said M. N. [the payee] prior to the commence- ment of this action, transferred, assigned and delivered said note to the plaintiff for value. III. [Aver breach if against maker, as in Forms 331 or 332.] 379. On Note Assigned as Collateral Security without In- dorsement but with an Agreement to Indorse; by Transferee against Maker and Transferror. ^"^ [From complaint in Van Riper v. Baldwin, 19 Hun, 344, aff'd without opinion in 85 N. Y. 618.] I. [Allege consideration, as:] that on the day of , 19 , plaintiff gave possession of certain prem- ises, owned by her and located at , in the county of , and State of , and commonly known as No. street, to W. H. and the defendant, J. H., to be used as a hotel, upon the following conditions, which were '°^ This fonn ia sustained by Pro., § 449; N. Y. Pers. Prop. Law, Cheever v. Pittsb., etc., R. Co., 60 §41; Hastings v. McKinley, 1 E. D. App. Div. 422, 64 N. Y. Supp. 65, Smith (N. Y.), 273. aff'd 169 N. Y. 581; Rosenbaum v. This is the proper form of averring Roth, 164 App. Div. 617, 150 N. Y. the assignee's title; though a mere Supp. 396. The rule that a bill or averment that he is the owner and note payable to order must be trans- holder may be sufficient to admit evi- f erred by indorsement, applied at dence of the assignment at the trial, common law only to make the instru- Brown v. Richardson, 20 N. Y. 472. ment negotiable, so that the holder The transferror of a non-negotiable might sue in his own name. But the note is not liable as an indorser. transfer by delivery was suflRcient HiUbom v. Penn. Cement Co., 145 to enable the holder to sue in the App. Div. 442, 129 N. Y. Supp. name of the payee. By the assign- 957. ment of the note alleged, the plain- '■"^ On a note payable to bearer it tiff acquired title to the note, and is enough for plaintiff to allege that the action under the Code, can now it is his property, and the amount is be maintained in his own name. due to him, without setting forth ge V. Bevier, 12 How. Pr. how he acquired it. Dabney v. (N. Y.) 166. See N, Y. Code Civ. Reed, 12 Ipwa, 315. Actions on Promissory Notes 371 agreed upon by the said W. H. and J. H., to wit: That the said W. H. and J. H. were to pay the sum of dol- lars per month rent therefor, and were to furnish security for the payment of the said rent, which security, as tendered and accepted by the plaintiff upon condition that said J. H. would indorse the same, consisted of a certain promissory- note, made by defendant, J. B., wherein he agreed to pay the defendant J. H., or Order, the sum of dollars, with interest, one year from date, to wit, 19 . II. That at the time of 'the tender and agreement to take said ijote as seciirity, the same was not indorsed by defend- ant J. H., but that she agreed to indorse the same, and place the same in the hands of one M. N., he to hold the same upon condition that in case said rent would not be paid, that he was to collact the same, and out of the proceeds derived he was to pay to this plaintiff so much as might be due her, for the possession of the said premises. III. That the said W. H. and J. H. remained in possession of the said premises from the day of , 19 , to the day of , 19 , without paying the rent agreed upon, or any part thereof, which said rent then amounted to the sum of dollars. IV. That said J. H. has neglected and refused, and still refuses, to indorse the said note, and that the said J. B. has failed to pay any of the principal due on said note, and that there is now due on the same the sum of dollars, and interest from , 19 . Wherefore [etc., demand of judgment]. 380. On a Bank Note. I. [Allege defendant's capacity as a banking corporation, as in Forms 44 ond 188.] n. That on or about the day of , 19 , the defendants made and delivered 4;heir certain promissory note in writing, or bank note, bearing date on said day, whereby they promised to pay to the bearer on demand, at their place of business within this State, the sum of 372 Abbott's Forms of Pleading dollars, and for value received delivered the same to some person unknown to this plaintiff, to be loaned and circulated as money, according to the ordinary course of banking business as regulated by the laws and usages of this State and of the United States. III. That thereafter said promissory note was duly trans- ferred and delivered to this plaintiff for value, and he was, at the time hereinafter stated, and still is, the lawful owner and holder thereof. IV. That on or about the ' day of > 19 , during the usual hours of business, to wit, between the hours of ten and three o'clock, plaintiff duly presented the said note to the defendants at their said place of business, and demanded the payment and redemption thereof, which the defendants then and there refused, and no part of the same has been paid. Wherefore [etc., demand of judgment]. CHAPTER X COMPLAINTS IN ACTIONS ON BILLS OF EXCHANGE I. Payee against acceptob. page 381. General form; setting out a copy of the bill 374 382. The same, pleading the legal effect 375 383. On an acceptance, varying as to time from the bill 376 384. Against acceptor for honor 377 385. On a bill directed by the drawer to himself and accepted by him 378 386. By assignee of a bill payable out of a particular fund 378 387. On unconditional promise in writing to accept bill of exchange 379 II. Payee against drawer. 388. On a bill payable at a certain time after date or sight, for non- acceptance 380 389. On the same; another form, setting out a copy of the bill . . . 381 390. On sight draft against a corporation drawer 382 391. On a bill payable on a day certain, or at sight, or at a certain time after date, — for non-payment 383 392. On the same, non-presentment for acceptance excused, the drawer having countermanded the bill 383 393. On the same, non-presentment for acceptance excused, be- cause the drawer could not be found 384 394. On the same, demand and notice excused by waiver 384 III. Payee against drawer, and drawee or other acceptor. 395. On a bill accepted by the drawee 384 .396. Againstdrawer and one who has accepted the bill for honor. 385 IV. By indorsee. 397. Indorsee against drawer who is also indorser, for non- acceptance 386 398. Indorsee against drawer, indorser, for non-payment 387 399. Remote indorsee against acceptor 388 400. By the same, on foreign bill in foreign language 388 401. Indorsee against acceptor who afterwards absconds 389 402. Against drawer and indorser, — for non-acceptance 390 403. Against drawer; indorser before acceptance; and acceptor, for non-pajmient 391 404. Against drawer, acceptor, and indorser after acceptance, — ^for non-payment 392 373 374 Abbott's Forms of Pleading V. Dbaweb against acceptor. ''•^''E 405. On a bill returned to, and taken up by the drawer 393 406. Against acceptor on a bill payable to the drawer's own order, ' and not negotiated 394 VI. Against irregular indorser. 407. By payee, or indorsee 395 408. By drawer; on a bill payable to drawer's own order 396 I. PAYEE AGAINST ACCEPTOR 381. General Form; Setting out a Copy of the Bill.i I. That on or about the day of , 19 , at , one M. N. drew his draft or bill of exchange directed to the defendant at , and that thereafter and on or about the day of , 19 , the defendant [or, the defendants, under their firm name of Y. Z. & Co.] accepted [for value] ^ and delivered to the plain-- tiff said bill of exchange, of which the following is a copy: [Copy of hill and acceptance.] II. That there is now due to the plaintiff ^ thereon from ' This form is under New York Instr. Law, § 50) ; in this respect Code of Civil Procedure (§ 534), and actions by payee against acceptor on supported by Andrews v. Astor Bank, bills of exchange and indorsee against 2 Duer (N. Y.), 629; Levy v. Levy, 6 maker on promissory notes are Abb. Pr. (N. Y.) 89. A bill of ex- alike. Nat. Park Bank v. Saitta, change is, in an action against the 127 App. Div. 624, 111 N. Y. Supp. acceptor, "an instrument for the 927, aff'd 196 N. Y. 548; Taylor v. pa3Tnent of money only" within the Newman, 77 Mo. 18, 23 Am. L. Reg. section. 144. Yet it may be useful to allege Thus, where the defendant was a that the acceptance was for value, corporation and the bill was ad- See note on this point to Form 331. dressed to its president and accepted Nor need the acceptance be alleged by him as such, held, that an aver- to be in writing. Bank v. Edwards, ment that he was president and au- 11 How. Pr. 216 (and see notes to thorized to accept, was not necessary next form). And it is immaterial in addition to the averments re- whether the payee obtained title quired by New York Code of Civil before or after acceptance. Arpin Procedure (§ 534). Andrews w. Astor t;. Owens, 3 N. E. Rep. 25 (Mass., Bank, 2 Duer (N. Y.), 629; Price v. 1885). McClave, 6 id. 544, aff'g 5 id. 670, ' No demand need be averred, al- 3 Abb. Pr. (N. Y.) 253. though the biU is made payable at a ^ No consideration need be averred specified time and place. First Nat. since it is presumed (N. Y. Nego. Bank w. Stoiy, 200 N. Y. 346; Braston Actions on Bills of Exchange 375 the defendant the sum of dollars, with interest from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. 382. The Same, Pleading the Legal Effect. [From Nat. Park Bank v. Saitta, 127 App. Div. 624, 111 N. Y. Supp. 927, aff'd 196 N. Y. 548.] I. That on or about the day of , 19 , at , one M. N. [or, certain persons, under their firm name of M. N. & Co.] drew his [or, their] draft or bill of ex- change in writing, dated on that day, directed to the de- fendant [or, to the defendants under their firm name of Y. Z. & Co.], at ; and thereby required the defendants to pay to the order of the plaintiff * [or, of these plaintiffs, under their firm name of A. B. & Co.], dollars, days after said date [or otherwise].'^ V. Gibson, 9 How. (U. S.) 263, 13' Law. Ed. 131 (and see cases cited in notes to next form). If, by statutory provision, a claim for damages also accrues upon the non-payment of the bill, it is but incident to the action on the bill, and does not require a separate statement. Bank v. Smith, 1 Handy, 575. A bill of exchange, upon accept- ance, becomes in effect a promissory note, the acceptor standing in the place of the maker, and becoming primarily liable, and the drawer standing in the place of the first in- dorser. U. S. Rail Co. v. Wiener, 169 App. Div. 561, 155 N. Y. Supp. 425. * In an action on a draft, brought by the Camden bank against the drawer, after showing that the draft was made payable "to the order of W. B. Storm, cashier," an averment that the defendant "delivered the said draft to W. B. Storm, cashier of said Camden bank, for the said bank," and that "the said draft is now held and owned by the said plaintiffs, and still remains due to them from the defendants," suffi- ciently shows that the bank and not the cashier is the real party in in- terest. Camden Bank v. Rodgers, 4 How. Pr. (N. Y.) 63, 2 Code R. 45. * Since the acceptor is estopped from questioning the genuineness of the drawer's signature and his existence (Title Guar. & Trust Co. V. Haven, 126 App. Div. 802, 111 N. Y. Supp. 305; Nat. Park Bank v. Ninth Nat. Bank, 46 N. Y. 77), the two paragraphs of Hie form would present less matter of an issuable character by alleging: "That on , at , the defendant accepted a certain biU of exchange purporting to be made by one M. N., directed to defendant and requiring him," etc. But the above form is the one usually employed. 376 Abbott's Forms of Pleading II. That thereupon [or, thereafter and on or about the day of , 19 , at ], the defendant [or, the defendants, under said firm name] duly accepted said bill of exchange.* III. That no part of the same has been paid ' [except the sum of, eic.].* Wherefore [etc., demand of judgment]. 383. On an Acceptance, Varying as to Time frpm the Bill. I. [As in preceding forms.] II. That thereupon [or, on or about the day of ,19 , at ], the defendant [or, the defend- ants, under the said firm name], upon sight thereof, accepted the same under date of the day of , 19 , ^ No coilsideratioii need be averred; see note on this point to preceding form. It is held not necessary to aver that the acceptance was in writing. A general averment that the bill was accepted implies that the acceptance was in writing, as the bill could not under the statute be accepted orally. N. Y. Nego. Instr. Law, § 220; Bank of Lowville v. Ed- wards, 11 How. Pr. (N. Y.) 216; and see Chalie ;;. Belshaw, 6 Bing. 629, 19 Eng. Com. L. R. 240. And a case of a bill destroyed or withheld by the drawee is no excep- tion, for there the drawee is deemed by statute to have accepted. N. Y. Nego. Instr. Law, § 225. So, of a written agreement to ac- cept. Id., § 283. It was held that since it amounts to an acceptance, it should be counted upon as an ac- ceptance, and no consideration need be shown. Ontario Bank v. Worth- ington, 12 Wend. (N. Y.) 593. An allegation, in a complaint, that certain drafts were accepted by a. corporation, by its treasurer, in- cludes an averment of authority to the treasurer to accept the drafts, inasmuch as the company could not accept by him, unless he had such authority. What is necessarily un- derstood, or implied, in a pleading, forms part of it, as much as if it was expressed. Partridge v. Badger, 25 Barb. (N. Y.) 146. ' Against the acceptor it is not necessary to aver or prove present- ment at the place where the bill was made payable. It is for the acceptor to show that he was ready there on the day of maturity, and always ready afterwards, but the bill was not presented, and proof of this, ac- companied by payment of money into court at the time of his answer, relieves him from interest and costs. Foden v. Sharp, 4 Johns. (N. Y.) 183; Wolcott V. Van Santvoord, 17 id. 248; Caldwell v. Cassidy, 8 Cow. (N. Y.) 271; Haxton v. Bishop, 3 Wend. (N. Y.) 13; Green v. Goings, 7 Barb. (N. Y.) 625. " As to demand, see note 3 to pre- ceding form. Actions on Bills of Exchange 377 payable at , days [or otherwise] after the date of said bill [or, after said date of acceptance]. III. [As in the preceding forms.] Wherefore [etc., demand of judgment]. 384. Against Acceptor for Honor.' [Under N. Y. Nego. Instr. Law, §§ 280-289.] I. That on or about the day of , 19 , at , one M. N. [or, certain persons, under the firm name of M. N. & Co.], made and delivered to plaintiff, his [or, their] draft, or bill of exchange, in writing, dated on that day, and directed the same to one 0. P., at , and thereby duly required said 0. P. to pay to the order of this plaintiff the sum of dollars, days after date thereof [or otherwise], [for value received]. II. That then and there [or, on or about the day of , 19 , at ], said bill was duly presented to said 0. P. for acceptance, but the same was not accepted and was thereupon duly protested for non-accep- tance, of all which due notice was given to said [drawer]. III. That then and there [or, on the day of ,19 , at ,] the defendant [or, the defendants, under their firm name of Y. Z. & Co.], upon sight thereof, accepted said bill for the honor of said [drawer]. IV. That at maturity the same was duly presented for payment to said 0. P., [the drawee], but was not paid and was thereupon duly protested for non-payment, of all of which due notice was given to the defendant [acceptor for honor] and to said M. N. [drawer]. ' To recover against the acceptor The accommodation acceptor who for honor, it must be shown that the pays without funds, can recover from bill was presented at maturity to the the drawer, not upon the bill, but for drawee, and that the drawer had money paid. Griffith v. Reed, 21 notice of non-payment. Williams v. Wend. (N. Y.) 502; Suydam v. West- Germaine, 7 Bamw. & C. 468; Scho- fall, 4 Hill (N. Y.), 211. See Form field V. Bayard, 3 Wend. (N. Y.) 488. 124. For a complaint joining the drawer, ,also, see Form 396, infra. 378 Abbott's Forms of Pleai>ing V. That no part of the same has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 385. On a BUI Directed by the Drawer to Himself and Ac- cepted by Him.^" I. That on or about the day of , 19 , at , the defendant [or, the defendants, under their firm name of Y. Z. & Co.] made and accepted, and de- livered to the plaintiff, his [or, their] bill of exchange in writing, of which the following is a copy: [copy of the bill and acceptance]. II. That there is now due to the plaintiff thereon, from the defendant, the sum of dollars, with interest from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. 386. By Assignee of a Bill Payable out of a Particular Fund." I. That on or about the day of , 19 , at , one M. N. made his [or, certain persons, imder their firm name, etc., made their] bill of exchange or order in writing, dated on that day, and directed it to the defendant [or, to the defendants, under their firm name of, etc.] at , and thereby required the defendant to pay to one 0. P., out of the proceeds of [state fund as described in the bill],^^ doUars, days after the date [or, sight] thereof [or, otherwise], for value received, and delivered it to said [payee]. '" Such an instrument may be id. 83; Muller v. King, 149 App. Div. treated by the holder as a promissory 176, 133 N. Y. Supp. 614. note. N. Y. Nego. Instr. Law, § 214. " If the bill is drawn upon the " Such a bill would operate as an general credit of the drawer with the assignment of the fund, pro ianto, drawee, it does not operate as an provided that it was the intention assignment because a particular fund of the parties that it was to be so to which the biU is to be charged is payable. See Brill v. Tuttle, 81 indicated. See Muller v. King, 149 N. Y. 454; Throop Co. v. Smith, 110 App. Div. 176, 133 N. Y. Supp. 614. Actions on Bills of Exchange 379 II. That on or about the day of , 19 , at , [or, then and there], upon sight thereof, the de- fendant accepted the same, payable when in funds, from the proceeds of [etc., as in acceptance].^^ III. That on or about the day of , 19 , at , said [payee] duly assigned and dehvered said bill for value received to this plaintiff. IV. That on or about the day of , 19 , the defendant had funds of the said [drawer], proceeds of [etc., as stated in bill]. V. That payment of said bill was, on or about the day of , 19 , at , duly demanded by this plaintiff from the defendant. VI. That no part thereof has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 387. On Unconditional Promise in Writing to Accept Bill of Exchange.'^ [Under N. Y. Nego. Instr. Law, § 223.] I. That on or about [or prior to] the day of , 19 , at , the defendant [for a valuable consideration] unconditionally promised in writing to accept [sight] drafts to the amount of dollars, to be drawn by the firm of A. B. & Co., as drawers, on him, the defend- ant, as drawee. II. That in pursuance of said unconditional promise, the " An acceptance generally, with- ficiency of the complaint was not out words of restriction to a fund or questioned, but where judgment foi- contingency, will in some cases bind plaintiff was reversed on the ground the acceptor absolutely [see Athinson that the promise as proven at the V. Manks, 1 Cow. (N. Y.) 691; Maber trial was not an unconditional V. Massias, 2 W. Blackst. 1072; Lent promise. See, also, Franklin Bk. of V. Hodgman, 15 Barb. (N. Y.) 274]; Baltimore v. Lynch, 52 Md. 270, 36 and in such cases it ia unnecessary Am. Rep. 375. to aver that he had funds. The section applies only to an " From Germania Nat. Bk. v. unconditional promise. MuUer v. Taaks, 101 N. Y. 442, 2 Centr. Rep. Kling, 149 App. Div. 176, 133 N. Y. 477, 5 N. E. Rep. 76, where the suf- Supp. 614. 380 Abbott's Forms of Pleading said firm of A. B. & Co., at , on the day of , 19 , duly drew their certain draft or bill on the said defendant, in words and figures following: [setting out copy]. III. That the plaintiff, relying upon the faith of the said unconditional promise of defendant to accept the said bill, received the same for value, and paid therefor the said sum of doUars,^^ and is now the owner and holder of said bill. IV. That plaintiff caused the said bill to be duly pre- sented to defendant for acceptance and payment, and de- manded of defendant that he should accept and pay the same; that defendant refused to accept or pay said bill [whereupon the said bill was duly protested for non-acceptance, and of which demand of acceptance, non-acceptance and non-pay- ment defendant and said firm of A. B. & Co. had due notice]. V. That said bill remains wholly unpaid, and there is now due and owing thereon from defendant to plaintiff the sum of dollars, with interest thereon from , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. n. PAYEE AGAINST DRAWERS" 388. On a Bill Payable at a Certain Time after Date or Sight, for Non-acceptance. ^'^ I. That on or about the day of , 19 , " Parting with value is necessary, Wiener, 169 App. Div. 561, 155 N. Y. and should be alleged. See note on Supp. 425. p. 21, on alleging consideration. " The holder of a bill, upon protest " A bill of exchange, after ac- for non-acceptance when a foreign ceptance, becomes in effect a promis- bill, and upon notice to drawer, has sory note, the acceptor standing in an immediate cause of action against thp place of the maker of the note the drawer (N. Y. Nego. Instr. Law, and being primarily liable, and the § 248) ; and even at common law, if drawer standing in the place of the demand of payment and protest first indorser. Therefore in the ab- were unnecessarily averred, the aver- sence of a special agreement to that ments might be rejected as sur- effectj-the payee indorser is not liable plusage if the declaration counted to the drawer. U. S. Rail Co. v. properly for non-acceptance. Mason V. Franklin, 3 Johns. (N. Y.) 202. Actions on Bills of Exchange 381 at , the defendants [drawers], [under their firm name of Y. Z. & Co.], made and deUvered to the plaintiff their bill of exchange in writing, dated on that day, directed to one M. N.. [or, to certain persons, under the firm name of M. N. & Ck).], wherein they required said [drawee] to pay to the order of this plaintiff [or, of these plaintiffs, under their firm name of A. B. & Co.] dollars, days [or, weeks, or, months] after the date [or, sight] thereof, for value received. II. That thereafter and on or about the day of , 19 , [which was within a reasonable time so to doji* the said bill was duly presented to said M. N. [the drawee] for acceptance, but the same was not accepted [if a foreign bill, add, and was thereupon duly protested for non- acceptance], of all which due notice was given to the de- fendant [drawer].^^ . III. That no part of said bill has been paid [except the Sinn of, etc.].^° Whebefore [etc., demand of judgment]. 389. The Same; Another Form; Setting out a Copy of the BiU." I. That on or about the day of , 19 , at , the defendants [drawers] [under their firm name of Y. Z. & Co.], made and delivered to the plaintiff their bill of exchange in writing, of which the following is a copy; [copy of the bill].^^ ^* Presentment for acceptanpe Pavenstedt v. N. Y. Life Ins. Co., within a reasonable time is necessary. 203 N. Y. 91. N. Y. Nego. Instr. Law, § 241. Or- ^' The action on a bill of exchange dinarily the date of presentment against the drawer may, according to alleged will be so near to the date of the better opinion, like an action the issue of the bill as to render the against an indorser, be considered as bracketed allegation unnecessary. an action on an instrument for the " Notice to drawer is essential. payment of money only, within the Id., § 160. meaning of N. Y. Code Civ. Pro., ^ For amount recoverable against § 534. drawer upon a foreign bill, see -- Where a bill is drawn in a set. 382 Abbott's Forms of Pleading II. That the same was thereafter aad on or about the day of , 19 ,'' duly presented to [the drawee] therein named for acceptance, but was not accepted [if a foreign bill, add, and was thereupon duly protested for non-acceptance], of all which due notice was given to the defendant [drawer]. III. That there is now due to the plaintiff from the de- fendant thereon the sum of dollars, and interest from the day of , 19 , which plaintiff claims. Wherefore [etc., demand of judgment]. 390. On Sight Draft against a Corporation Drawer. I. [Allege corporate capacity as in Forms 44~4^]- II. That on or about the day of , 19 , at , the defendant duly made and deUvered to the plaintiff its bill of exchange, in writing, dated on that day, directed to [certain persons, under their firm name of M. M.'s Sons, in the city of ,] wherein it required said [drawee] to pay to the order of this plaintiff dollars at sight, [or as in bill provided] for value received. III. That said bill was thereafter and on or about the day of ,19 ,^* duly presented to said M. M.'s Sons for payment, but the same was not paid, [if a foreign bill and was thereupon duly protested for non- payment,] of all which due notice was given to the de- fendant. [IV. That the cost of said protest was dollars, which was paid by the plaintiff.] V. That no part of said bill or said cost of protest has been paid. Wherefore [etc., demand of judgment]. one of which has been dishonored, ^^ See note on time of presentation, the holder must sue on that one of the to preceding form, set that was dishonored. Downes v. '* See note 18 to Form 388. Church, 13 Pet. 205; Wells v. White- head, 15 Wend. (N. Y.) 527. Actions on Bills of Exchange 383 391. On a Bill Payable on a Day Certain, or at Sight, or at a Certain Time after Date — for Non-payment. ^'^ I. That on or about the day of , 19 , at , the defendants [drawers], [under their firm name of, etc.], made and delivered to the plaintiff their bill of exchange, in writing, dated on that day, directed to one M. N. [or, to certain persons, under their firm name of, etc.], wherein they required said [drawee] to pay to the order of this plaintiff [or, of these plaintiffs, under their firm name of, etc.], dollars, on the day of , 19 , [or, at sight, or, days after the date thereof, or otherwise], for value received. II. That said bill was thereafter, and on or about the day of ,19 ,^^ duly presented to [the drawee] for payment, but was not paid [if a foreign bill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendant [drawer]. III. That no part of the same has been paid [except the sum of, etc.].^'' Wherefore [etc., demand of judgment], 392. The Same; Presentment for Acceptance Excused, ^^ the Drawer Having Countermanded the Bill. I. [State the making and delivery of the bill, as in paragraph I of Form 388, or, if payable at sight, as in Form S90.1 II. That on or about the day of ,19 , said bill not having been theretofore presented for accept- ance [or, for pajrment], the defendant countermanded the same and instructed and directed the sard [drawee] not to ^' Adapted from the allegations of Montgomery County Bank v. Albany complaint in Pavenstedt v. N. Y. City Bank, 8 Barb. (N. Y.) 396; Life Ins. Co., 203 N. Y. 91. Philpott v. Bryant, 3 Carr. & P. 244; In an action against the drawer of a 14 Eng. Com. L. R. 549. bill payable on a day certain, or a cer- ''' See note 18 to Form 388. tain time after date, it is not necessary " See for measure of damage on a to aver or prove presentment for foreign bill, Pavenstedt v. N. Y. Life acceptance to the drawee. See N. Y. Ins. Co., 203 N. Y. 91. Nego. Instr. Law, §240; Allen ;;. ^s poj. averment of waiver or omis- Suydam, 20 Wend. (N. Y.) 321; sion to give notice, see Form 394. 384 Abbott's Forms of Pleading accept or pay [or, if payable at sight, not to pay] the same; wherefore said bill was not presented. III. That no part of the same has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 393. The Same; Presentment for Acceptance Excused Be- cause the Drawee could not be Found. [Under N. Y. Nego. Instr. Law, § 245.] I. [State the making and delivery of the hill, as in paragraph I of Form 388, or Form 389; or, if payable at sight, as in Form 390.] II. That on or about the day of j 19 , diUgent search and inquiry was made for said [drawee] at [the place of address], in order that the said bill might be presented to him for acceptance, but he could not be found, and the same was not accepted [and if a foreign bill, add, and was thereupon duly protested for non-acceptance], of all which due notice was given to the defendant [drawer]. III. That no part of the same has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 394. The Same; Demand and Notice Excused by Waiver. I. [As in preceding form,s.] II. That the defendant [drawer] at the time said bill was made and delivered by him, as aforesaid, expressly waived the presentation of the same to said M. N. for acceptance, or payment, and notice of the non-payment thereof to de- fendant. III. That no part thereof has been paid. Wherefore [etc., demand of judgment]. m. PAYEE AGAINST DRAWER, AND DRAWEE OR OTHER ACCEPTOR 396. On a Bill Accepted by the Drawee. I. That on or about the day of , 19 , at , the defendants [drawers], [under their firm Actions on Bills of Exchange 385 name of Y. Z. & Co.], duly made and delivered to the plain- tiff their bill of exchange in writing, dated on that day, directed to the defendant [acceptor; or, to the defendants, acceptors, under their firm name, W. X. & Co.], wherein they required said [acceptor] to pay to the order of the plain- tiffs [or, of the plaintiffs, imder the firm name of A. B. & Co.] dollars, days after the date thereof [or otherwise], for value received. II. That then and there [or, on or about the day of , 19 , at ], the defendant [acceptor] upon sight thereof duly accepted said bill. III. That at maturity said bill was duly presented to the defendant [aeceptor] for payment, but was not paid [if a foreign bill, add, and was thereupon duly protested for non- pajrment], of all which due notice was given to the defend- ant [drawer]. IV. That no part of the same has been paid. Wherefore [etc., demand of judgment]. 396. Against Drawer and One who has Accepted a Bill for Honor. [Under 1^. Y. Nego. Instr. Law, §§ 280^289.] I. That on or about the day of , 19 , at , the defendants [drawers], [under their firm name of Y. Z. & Co.], made and deUvered to the plaintiff their bill of exchange in writing, dated on that day, directed to one M. N. [or, to certain persons, under their firm name of M. N. & Co.], wherein they required said [drawee] to pay to the order of this plaintiff [or, these plaintiffs, under their firm name of A. B. & Co.] dollars, days after the date thereof [or otherwise], for value received. II. That then and there [or, on or about the day of , 19 ,] at ' , said bill was duly presented to said [drawee] for acceptance, but was not accepted [if a foreign bill, add, and was thereupon duly protested for non- acceptance], of all of which due notice was given to the defendant [drawer]. 386 Abbott's Fobms of Pleading III. That then and there [or, on or about the day of , 19 , at ,] the defendant [acceptor for honor], upon sight thereof, accepted said bill for the honor of said [drawer], IV. That at maturity said bill was duly presented for pay- ment to said [drawee], but was not paid [if a foreign bill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendants [drawers]. V. That thereupon said bill was duly presented to the defendant [acceptor for honor] for payment, but was not paid [and was thereupon duly protested for non-payment], of all of which due notice was given to the defendants [drawers]. VI. That no part of the said bill has been paid. Wherefore [etc., .demand of judgment]. IV. BY INDORSEE 397. Indorsee against Drawer who is also Indorser, for Non-acceptance. 2' I. That heretofore at the defendant drew his certain draft or bill of exchange, bearing date the day of , 19 , directed to one M. N., at , and thereby required said M. N. to pay days [after sight] to the order of the said defendant [drawer], dollars, and thereupon [for value received '"] indorsed and delivered said bill to the plaintifif . II. That thereafter, and on or about the day of , 19 , the said bill was duly presented to the said [drawee] for acceptance, and acceptance thereof was refused, [if a foreign hill, whereupon said bill was duly protested for non-acceptance,] of all which the defendant [drawer] had due notice and knowledge. III. That the plaintiff is the lawful owner and holder of said bill; that the same has not, nor has any part thereof '^ The form is adapted from Nat. N. Y. 548; Phelps v. Borland, 30 Park Bank v. Saitta, 127 App, Div. Hun (N. Y.), 362. 624, 111 N. Y. Supp. 927, aff'd 196 '» See note to Form 331 on alleging consideration. Actions on Bills of Exchange 387 been paid [except, etc.] and that there is now due thereon from the defendant to the plaintiff the sum of dol- lars, and interest upon the said sum from the day of , 19 ." Wherefore [etc., demand of judgment]. 398. Indorsee against Drawer, Indorser, for Non-pajrment.^^ I. That heretofore at , the defendant drew his certain draft or bill of exchange bearing date ,19 , directed to one M. N., at , and thereby required him to pay days [after sight], to the order of de- fendant [drawer], dollars, and thereupon [for value received ''] indorsed and delivered said bill to the plaintiff. II. That thereafter, and on or about the day of , 19 ,"the said bill was duly presented to the said [drawee] for acceptance, and was duly accepted by him. III. That thereafter, the said bill was duly presented on the day of , 19 , the due date thereof, to the said [acceptor] for payment, and payment thereof was demanded and refused, [if a foreign bill, whereupon said bill was duly protested for non-payment] and notice of such demand and refusal [and protest] was duly given to the said defendant [tfie drawer]. IV. That the plaintiff is the owner and holder of said bill; that the same has not, nor has any part thereof, been paid, and there is now due thereon from the defendant to the plaintiff the said sum of dollars and interest upon said sum from the day of ,19 .''' Wherefore [etc., demand of judgmerit]. " See measure of damages on for- N. Y. 548; Phelps v. Borland, 30 eign biU, Pevenstedt v. N. Y. Life Hmi (N. Y.), 366. Ins. Co., 203 N. Y. 91. "See note to Form 331 on alleging '* This form is adapted from Nat. a consideration. Park Bank v. Saitta, 127 App. Div. '^See measure of damages on a 624, 111 N. Y. Supp. 927, aff'd 196 foreign bill, Pevenstedt v. N. Y. Life Ins. Co., 203 N. Y. 91. 388 Abbott's Forms of Pleading 399. Remote Indorsee against Acceptor.'^ I. That on or about the day of , 19 , at , one M. N. drew his draft or bill of exchange directed to the defendant at , and thereby required the defendant to pay to the order of 0. P. [or, said M. N.j days after the date of said bill dollars. JI. That thereafter, and on or about the day of , 19 , the defendant [or, the defendants, under their firm name of Y. Z. & Co.] duly accepted said bill of exchange. III. That said [payee] thereafter duly indorsed said bill [in blank] and delivered it so indorsed, and thereafter and before maturity the same was duly deUvered to and came lawfully into the possession of the plaintiff for value. ^"^ IV. That said bill was duly presented [to defendant] on the day of its maturity and payment thereof demanded but refused; that plaintiff is now the owner and holder of said bill, and no part thereof has been paid. Wherefore [etc., demand of judgment], 400. Remote Indorsee against Acceptor on Foreign Bill in Foreign Language.^' I. That on or about the day of , 19 , at , in the State of , Central America, the [firm of M. N. & Co.,] drew their bill of exchange, directed to the defendant at , and thereby required the de- fendant to pay to the order of O. & P. dollars, days after the date of said bill; that a copy of said bill of exchange together with a correct translation thereof, is " This form is supported by Nat. ways imports a consideration, and Park Bask v. Saitta, 127 App. Div. the allegation that there was a oon- 624, 111 N. Y. Supp. 927, aff'd 196 sideration is unnecessary and need not N. Y. 548; Levy v. Ley, 6 Abb. Pr. be proven. Hook v. Pratt, 78 N. Y, (N. Y.) 89; s. c, sub. nom. Levy v. 371. Ely, 15 How. Pr. (N. Y.) 395; Phelps " Adapted from Nat.Park Bank v. V. Ferguson, 9 Abb. Pr. (N. Y.) 206. Saitta, 127 App. Div. 624, 111 N. Y. *« An unrestricted. indorsement al- Supp. 927, afPd 196 N. Y. 548. Actions on Bills of Exchange 389 hereto annexed and made a part of this complaint and marked Schedule A. II. That on or about the day of , 19 , the defendant duly accepted the said bill of exchange by an acceptance in writing, dated on said day. III. That the said [drawers] thereafter duly indorsed said bill of exchange [in blank] and delivered the same so in- dorsed, and thereafter the said bill of exchange, before it became due, was duly delivered to and came into the pos- session and became the property of the plaintiff for value. IV. That on the day of , 19 , the said bill of exchange was duly presented for payment at its place of payment, but payment of said bill was refused, whereupon said bill was duly protested at a cost of dollars. That no part of said bill of exchange or of said, cost of protest has been paid, and that the amount of said bill is now due and owing by defendant to plaintiff. V. That in United States money the sum of dollars would have been required on [the due date of the hill] to have purchased the [foreign money payable under the bill].^^ Wherefore [etc., demand of judgment]. 401. Indorsee against Acceptor, who thereafter Absconds.^^ I. Upon information and belief: That on or about its date one A. S. made his certain draft in German, of which the following is a true and complete translation: Vienna, , 19 . Gulden. months after date, pay in exchange for this draft, to the order of myself, the sum of Austrian gulden, value received, and: charge the same, according to report to accoimt of A. S. To Y. Z. [defendant]: , inEssegg, Payable in Vienna at J. H. BaiA. ^ That this is the measure of the " From complaint in Engel v. pdaintifF's damage see Gross v. Men- Fisher, 102 N. Y. 400. del, 171 App. Div. 237, 157 N. Y. Supp. 357. 390 Abbott's Forms of Pleading II. Upon information and belief: That before maturity- said S. indorsed the same and delivered it to said J. H. Bank. III. Upon information and belief: That before its matu- rity the defendant, then a resident of the town of Essegg, in Austria, accepted said draft and wrote across its face " Ange- nommen," Y. Z.; the word "Angenommen" being the Ger- man equivalent for "accepted." IV. That thereafter said J. H. Bank indorsed said draft, and for value delivered the same to plaintiff. V. Upon information and belief: That when the same became due and payable it was duly presented for payment at the place where the same was by its terms payable, but that there were no funds at said place out of which to pay it, and the same was not paid. VI. Upon information and behef: That the defendant, some time after accepting this and other drafts, absconded from the town of Essegg, and came to the city of New York; that for the purpose of conceaUng himself from his creditors he assumed a fictitious name [to wit, M. L.], and has ever since borne said fictitious name; that plaintiff recently dis- covered the defendant in the city of New York, living imder his said fictitious name.'*" VII. That thereupon plaintiff demanded payment of said draft from the defendant, but that he refused to pay the same and has paid no portion thereof. VIII. That the Austrian gulden is the equivalent in American money, and worth the sum, of dol- lars. Wherefore [etc., demand of judgment]. 402. Against Drawer and Indorser, — ^for Non-acceptance. I. That on or about the day of , 19 , at , the defendants [drawers], [under their firm name " " The only relevancy- of this par- See note on such a method of pleading agraph is in anticipation of the de- to Form 221. " ' . . fense of the Statute of Limitations. Actions on Bills of Exchange 391 of Y. Z. & Co.], drew their draft or bill of exchange in writing, dated on that day, directed to one M. N. [or, to certain persons, under the firm name of M. N. & Co.], and thereby required said [drawee] to pay to the order of the defend- ant [indorser, or, of one O. P.] dollars, days after the date thereof [or otherwise], for value re- ceived. II. That the said [drawers] then and there delivered said bill to the defendant [indorser, or, to said O. P., who then and there duly indorsed and deUvered it to the defendant — indorser]. III. That thereafter [or, on or about the day of , 19 ,] at , the defendant [indorser] duly indorsed and deUvered said bill to the plaintiff [or, duly indorsed the same in blank and dehvered the same so in- dorsed, and thereafter and before maturity the same was duly delivered to and came lawfully into the possession of the plaintiff for value]. rV. That said bill was thereafter and on or about the day of , 19 , duly presented to [the drawee] for acceptance, but the same was not accepted [if a foreign bill, add and was thereupon duly protested for non-accept- ance], of aU of which due notice was given to the de- fendants. V. That no part of the said bill has been paid [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 403. Against Drawer; Indorser before Acceptance; and Acceptor; for Non-pa3nnent. I. That on or about the day of , 19 , at , the defendant [drawer] drew his [or, the de- fendants, drawers, vuider their firm name of, etc., drew their] draft or biU of exchange in writing, dated on that day, directed to the defendants at [acceptors, under their firm name of , etc.], and thereby required the defendants [acceptors] to pay to the order of the defendant [indorser, or, 392 Abbott's Forms of Pleading of one M. N.] dollars, days after the date [or, sight] thereof for value received. II. That the said defendant [drawer] then and there duly deUvered said bill to the defendant [indorser, or, to the said M. N., who thereupon duly indorsed and deUvered it to .the defendant, indorser]. III. That then and there [or, on or about the day of , 19 , at ] the defendant [indorser] duly indorsed and dehvered the same to this plaintiff [or, duly indorsed the same in blank and delivered it so indorsed, and thereafter (and before maturity) the same was duly delivered to and came lawfully into the possession of this plaintiff for value]. IV. That then and there [or, on or about the day of , 19 , at ] the defendants [acceptors], [under their firm name of, etc.], upon sight thereof, duly accepted said bill. V. That at maturity said bill was duly presented to the defendants [acceptors] for payment, and payment thereof was duly demanded, but the same was not paid [if a foreign bill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendants [drawer and indorser]. VI. That no part of the same has been paid. Wherefore [etc., demand of judgment]. 404. Against Drawer, Acceptor, and Indorser after Ac- ceptance, — for Non-pa3ntnent. I. That on or about the day of , 19 , at , the defendants [drawers], [under their firm name of, etc.] drew their draft or bill of exchange in writing, dated on that day, directed to the defendants [acceptors], [under their firm name of, etc.], at , and thereby required said defendants [acceptors], to pay to the order of the defendant [indorser, or of one M. N., or, of certain persons under their firm name of, etc.] dollars, days after the date thereof [or otherwise] for value. Actions on Bills of Exchange 393 II. That then and there the defendants [drawers] duly delivered said bill to the defendant [indorser]. III. That then and there [or, on or about the day of , 19 , at .,] the defendants [accep- tors], [xxnder their firm name of, etc.\ upon sight thereof, duly accepted said bill. IV. That then and there [or, on or about the day of , 19 , at ], the defendant [indorser] duly indorsed and delivered said bill to this plaintiff [or, duly indorsed the same in blank and dehvered it so indorsed, and thereafter (and before maturity) the same was duly dehvered to and came lawfully into the possession of this plaintiff for value]. V. That at maturity of said bill the same was duly pre- sented for payment and payment thereof was duly demanded of the defendants [acceptors] but payment thereof was not made, [and of a foreign bill, whereupon the same was duly protested for non-payment,] and notice of said presentment, demand and non-payment [and protest] was duly given to the said defendant [indorser], [the expense of which protest was dollars]. VI. That no part thereof has been paid, and that plaintiff is now the owner and holder thereof. Whekefore [etc., demand of judgment]. V. DRAWER AGAINST ACCEPTOR" 405. On a Bill Returned to, and Taken up by the Drawer. I. That on or about the day of , 19 , *' This action may be maintained a bill, alleging that they had refused without deducing title to the bill to accept, and that they had had a through the payee. Kingman v. settlement of accounts with the Hotaling, 25 Wend. (N. Y.) 423, and drawers, and that on such settlement cases there cited. If the drawer has the drawers had left in their hands ^only paid a part, so that he has not sufficient money to pay the billj which taken up the biU, he should sue, not they had then agreed to pay, is suffi- on the bill, but for money paid, etc. cient. Mittenbeyer v. Atwood, 18 See Form 126. How. Pr. (N. Y.) 330. A complaint against the drawees of See Form 387 for a precedent 394 Abbott's Forms op Pleading at , the plaintiffs [under their firm name of, etc.\ made and delivered to one M. N. their bill of exchange in writing, dated on that day, and directed to the defendants [under their firm name of, etc.], and thereby required the defendants to pay to the order of said M. N. dollars, days after the date thereof [or othermse]. II. That then and there [or, on or about the day of , 19 , at ], the defendants [under their said firm name] upon sight thereof, duly accepted said bill for value received. III. That at maturity said bill was duly presented for payment, and payment thereof duly demanded but the same was not paid. IV. That on or about the day of , 19 , at , said bill was returned to the plaintiffs for non- payment,*^ and the plaintiffs, as drawers thereof, were then and there compelled to and did take up the same and pay- to said [payee, or, to the then owner and holder thereof], the sum of dollars, being the amount of said bill with damages [or, costs of protest] and interest. V. That plaintiffs have duly notified defendants of their payment of the said bill and demanded of defendant that he repay to them said sum of dollars, but no part of the same has been repaid by defendants to plaintiffs [except the sum of, etc.]. Wherefore [etc., demand of judgment]. 406. Against Acceptor on a Bill Payable to the Drawer's own Order, and not Negotiated. I. That on or about the day of , 19 , at , the plaintiffs [under their firm name of A. B. & against drawee who refused accept- Chap. Ill, under Money Paid, Fonn ance after an unconditional promise 123. to accept. *^ When the drawer sues on a bijl For a form of complaint by ac- payable to a third person, it is nec- ceptor without funds who has paid essary to state that it was dishonored, the draft, against drawer, see and taken up and paid by the plain- tiff. Actions on JBills of Exchange 395 Co.] drew their draft or bill of exchange in writing, dated on that day, directed to the defendants [under their firm name of, etc.], and thereby required the defendants to pay to the order of the plaintiffs dollars, days after date thereof [or otherwise]. II. That the defendants thereupon [or, on or about the day of , 19 , at ], upon sight thereof, duly accepted said bill, for value received, and duly dehvered it to the plaintiffs. III. That no part of the same has been paid [except the sum of, etc.], and that the whole amount thereof is now due and payable thereon from defendants to plaintiffs, with interest from, etc. Wherefore [etc., demand of judgment]. VI. AGAINST IRREGULAR INDORSER 407. By Payee, or Indorsee.*' [Under N. Y. Nego. Instr. Law, § 114.] I. [Allege making of the bill as in Form 388.] II. That the defendant, prior to the deUvery of said bill to plaintiff, placed his signature on the back thereof in blank and indorsed the same [for value]. III. [Allege non-acceptance by drawee, if according to fact, as in Form 388, and notice thereof to defendant, as in para- graph II of that form.] [Or, if bill was accepted but not paid by acceptor, allege as in 391 , including therein notice to defendant.] IV. That no part of , said bill has been paid. Wherefore [etc., demand for judgment]. 408. By Drawer; On a Bill Payable to Drawer's Own Order." [Allege making of bill and acceptance as in Forms 381 or 406.] That after the acceptance of said biU by the drawee thereof " See discussion of this section, and *^ Action sustained in Haddock Co. its application, in Haddock v. Had- v. Haddock, 192 N. Y. 499. dock, 192 N. Y. 499. 396 Abbott's Forms of Pleading and prior to its delivery to plaintiff, the defendant duly indorsed the same, and said bill so indorsed was thereafter and before its maturity duly dehvered to plaintiff. [Show that plaintiff gave value J or the hill, as:\ That said bill was given and dehvered to plaintiff in payment for coal sold and delivered by plaintiff to said [acceptor \, [or, in re- newal of prior notes or bills given or accepted for the piu-- chase price of coal so sold and delivered]. That said bill was so indorsed before delivery by the defendant for the accommodation of the said [acceptor] and for the purpose of giving said [acceptor] credit with plaintiff, and in pursuance of an agreement between the defendant and the plaintiff by which plaintiff agreed to sell coal on credit to the said [acceptor] upon the defendant's guarantee- ing the credit of said [acceptor], and plaintiff was induced to take said bill for such coal by reason of defendant's said indorsement and pursuant to his said agreement to pay the same if said [acceptor] should fail to do so. That when said bill became due it was duly presented for payment at the place where it was made payable, and pay- ment duly demanded, which was refused, and thereupon said bill was duly protested for non-payment, of all of which notice was duly given to defendant. [Allege cost of protest.] Wherefore [etc.]. CHAPTER XI COMPLAINTS UPON CHECKS, CEKTIFICATES OF DEPOSIT AND LETTERS OP CREDIT I. Against drawer of check. page 409. Payee against drawer; pleading by legaJ effect 397 410. The same, pleading by copy 399 411. Indorsee, or bearer, against drawer 399 412. The same, another form for use in common-law States 400 413. Omission to give notice of non-payment excused because the drawer had no funds 400 414. Non-presentment excused because of insolvency of the drawee 401 415. Indorsee against drawer, where payment was stopped by drawer 401 II. Against drawer and indorser op check. 416. Indorsee, or bearer, against drawer and indorser 401 III. Against drawee. 417. For amount of check which bank refused to pay 402 418. Against the bank, drawee, for refusal to pay check drawn by plaintiff's agent against a deposit made by the agent in his own name imder instructions from plaintiff 403 419. Against the bank, drawee, by depositor, for damages for refusal to pay check 404 420. Against the bank, drawee, having certified 406 IV. Certificates of deposit. 421. Complaint on certificate of deposit 406 421a. The same, by survivor of joint payee, on certificate obtained with intent to create right of survivorship 407 v. Letters op credit. 422. On letter of credit, available by draft 409 I. AGAINST DRAWER OF CHECK 409. Payee against Drawer; Pleading by Legal Effect.' I. That on or about the day of , 19 , 'Adapted from Citizens State merits, 180 N. Y. 346); Benedict v. Bank v. Cowles, 89 App. Div. 281, Kress, 97 App. Div. 65, 89 N. Y. 86 N, Y. Supp. 38 (rev'd on the Supp. 607. 397 398 Abbott's Foems of Pleading at , the defendant [or, the defendants, under their firm name of Y. Z. & Co.], made and delivered to the plain- tiff his [then-] check in writing, dated on that day, directed to- the bank, of , and thereby required said [drawee] to pay the plaintiff or order [or, bearer], ^ dollars.' II. That said check was duly indorsed by plaintiff," and so indorsed was duly presented ^ to the said [drawee] for payment, but was not paid; of all of which due notice was given to the defendant [drawer].^ III. That plaintiff is the owner and holder of said check, and that no part of the same has been paid. Wherefore [etc., demand of judgment]. ^ A check payable to the order of a fictitious person — e. g., to the order of a firm known to be long since dis- solved [Stevens v. Strang, 2 Sandf. (N. Y.) 138], or "to the order of bills payable" [Mechanics' Bank v. Straitori, 3 Abb. Ct. App. Dec. (N. Y.) 269; WiUets v. Phoenix Bank, 2 Duer (N. Y.), 121], or whenever the name of the payee does not purport to be the name of any person — is to be deemed payable to bearer if negotiated by the maker. N. Y. iSfegotiable Instr. Law, § 28 (L. 1909, c. 43). ' When no time of payinent is men- tioned, the check is payable on de- mand. N. Y. Nego. Instr. Law, § 26. * It is necessary to allege that the check was indorsed before presenta^ tion for payment, for if not so in- dorsed the drawee could not properly make payment. Rowley v. Nat. Bank of Deposit, 63 Hun, 550, 18 N. Y. Supp. 545; Eichner v. Bowery Bank, 24 App. Div. 63, 48 N. Y. Supp. 978; Goodwin v. Cobe, 24 JMisc. 389, 53 N. Y. Supp. 415. ^ As against the drawer, present- ment at any time before suit brought is sufficient, unless it appear that he has been damaged by unreasonable delay on the part of the holder. See N. Y. Nego. Instr. Law, § 322; also defense on that ground, among Answers, post. ' Presentment to drawee, and no- tice to drawer of non-payment, are necessary to charge the drawer of a check. Harker v. Anderson, 21 Wend. (N. Y.) 372; foUowed in Goodwin v. Cobe, 24 IVIisc. 389, 53 N. Y. Supp. 415; Judd v. Smith, 3 Hun, 190, 5 N. Y. Sup. Ct. (T. & C.) 255; Shultz v. Dupuy, 3 Abb. Pr. (N. Y.) 252; Dowling v. Hunt, (Sup. Ct. Ariz., 1885), 7 Pac. Rep. 496. It is otherwise if the drawees have failed, or their business has been stopped by an injunction, or if the drawer had no funds in their hands; but in such a case the fact must be averred in excuse of the omission to demand or give notice of non- pasrment. See Forms 413 and 414, infra. Actions on Checks, Etc. 399 410. The Same ; Pleading by Copy.^ I. That on or about the day of , 19 , at , defendant made and delivered to plaintiff his check of which the following is a copy: [Copy of Check] II. [As in Form 409.] III. [As in Form Jfid continuing:] and that there is now due and owing on said check from defendant to plaintiff the sum of dollars, which plaintiff claims. Wherefore [etc., demand for judgment]. 411. Indorsee, or Bearer, against Drawer. I. That on or about the day of , 19 , at , the defendant made his check [or, the defend- ants, under their firm name of, etc., made their check] in writing, dated on that day, directed to the Bank of [or, certain persons under the firm name of, etc.], and thereby required said [drawees] to pay to one M. N. or order [or, bearer], dollars. II. That the defendant then and there delivered the same to said payee [if -payable to order, add, who thereafter duly indorsed the same and delivered it so indorsed,^ and the same thereafter was duly delivered to and came lawfully to the possession of this plaintiff for value']. ' See notes to Form 327, on the bearer thereof dollars; that subject of pleading by copy under thereafter, for a valuable considerar authority of N. Y. Code Civ. Pro., tion, said check was dehvered to § 534. plaintiff, who became, and is now, the See, also, notes to preceding form owner and holder thereof." Me- on liability of drawer. chanics' Bank v. Straiton, 3 Abb. Ct. * If payable to bearer, or to a of App. Dec. (N. Y.) 269, where it fictitious person {see N. Y. Nego. was held unnecessary to allege the Instr. Law, § 28, as to other situations transfers through which plaintiff under which it is payable to bearer), derived his title, instead of stating that it was payable ' See note to Form 331, on alleging to M. N., etc., say, " and thereby re- consideration, quired said [drawee] to pay to the 400 Abbott's Forms of Pleading III. That thereafter the same was duly indorsed by plain- tiff and so indorsed was duly presented to said Bank [drawee] for payment, but was not paid, of all which due notice was given to the defendant.^" IV. That no part of the same has been paid. Wherefore [etc., demand of judgment]. 412. The Same — Another Form for Use in Common-law States. [Declaration sustained in MuUaly v. Holden, 123 Mass. 583.] And the plaintiffs say that the defendant passed to them a check, a copy whereof is hereto annexed, and the same was cashed by them; that they duly presented said check for payment, but it was not paid, there being no fimds to meet it; whereupon they duly notified the defendant, who re- fused to repay the amount of the check or any part thereof; wherefore the defendant owes the plaintiffs the said amount and interest thereon. 413. Omission to Give Notice of Non-payment Excused Because the Drawer had no Funds. I. [As in paragraph I of preceding Forms 409-410.] II. That thereafter the said check was duly indorsed by plaintiff and so indorsed was duly presented " to said [drawee] for payment, but the defendant had no funds ^^ with said [drawee], and no part of the same has been paid. Wherefore [etc., demand of judgment]. '" See notes on liability of drawer, '^ In aU cases where it is intended to to Form 409. rely upon want of funds as excusing " Want of funds in the drawee's demand or notice, that fact must be hands excuses the omission to give averred. Shultz v. Depuy, 3 Abb. notice of non-payment. As to Pr. (N. Y.) 252; Garvey v. Fowler, whether it excuses non-presentment, 4 Sandf. (N. Y.) 665; Fitch v. Red- see Cruger v. Armstrong, 3 Johns. ding. Id. 130; Franklin v. Vanderpool, Gas. (N. Y.) 5; Fitch v. Redding, 1 HaU (N. Y.), 78. And generaUy, 4 Sandf. (N. Y.) 130; Gonroy v. evidence in excuse of non-performance Warren, 3 Johns. Gas. (N. Y.) 259; is not admissible under an averment Franklin v. Vanderpool, 1 Hall of performance: See general note on (N. Y.), 78; Shultz v. Depuy, 3 Abb. this subject on page 20. Pr. (N. Y.) 252. Actions on Checks, Etc. 401 414. Non-presentment Excused because of Insolvency of the Drawee. I. [As in preceding Forms 409-^10.] II. That on said day of , 19 ,^^ said [drawee] had failed [or, had stopped payment]," and no part of the same has been paid. Wherefore [etc., demand of judgment]. 415. Indorsee against Drawer where Payment was Stopped by Drawer. I. That on or about the day of , 19 , at , the defendant made his certain check in writing, dated on that day, directed to the Bank of , and thereby required said Bank to pay to the order of M. N. doUars. II. That said defendant, then and there, duly delivered said check to said M. N., said M. N. thereafter duly indorsed and delivered the same to plaintiff. III. That thereafter, and on or about the day of , 19 , the said check was duly indorsed by plaintiff, and so indorsed was duly presented to said bank for payment ; that said defendant had, subsequently to the drawing of said check, directed said bank not to pay the same, and said bank refused for such reason to pay the same when so presented. IV. That no part of said check has been paid. ' Wherefore [etc., demand of judgment]. n. AGAINST DRAWER AND INDORSER OF CHECK 416. Indorsee, or Bearer, against Drawer and Indorser. I. That on or about the day of , 19 , at , the defendant [drawer], [or, the defendants, under " The time should be stated, that (N. Y.) 369. Compare Syracuse, it may appear that it was such as to etc., R. R. Co. v. Collins, 1 Abb. excuse the holder from a demand. N. C. (N. Y.) 47 (where drawee had "As against drawer, these facts made general assignment); First dispense" with presentment and no- Nat. Bank v. Alexander, 84 N. C. tice. Lovett v. ComweU, 6 Wend. 32. 402 Abbott's Forms of Pleading their firm name of, etc.], made his [their] check, in writing, dated on that day, directed to the Bank of [or, to certain persons under, etc.] and thereby required said bank [drawee] to pay to the defendant [indorser], or order [or, bearer], dollars, for value received, and delivered it to the defendant [iridorser].^^ II. That thereupon said defendant [indorser, or, the de- fendants — indorsers — under the firm name of, etc.], duly in- dorsed and delivered said check to this plaintiff, [or, duly indorsed the same in blank and delivered it so indorsed; and thereafter it was duly delivered to and came lawfully into the possession of this plaintiff], for value, and plaintiff is now the owner and holder thereof. III. That said check was thereafter duly indorsed by plaintiff, and so indorsed was duly presented for payment to said Bank and payment demanded, but the same was not paid, whereupon the same was duly protested for non-payment, of all of which due notice was given to the defendants. IV. That no part of the said check has been paid. Wherefore [etc., demand of judgment]. III. AGAINST DRAWEE 417. For Amount of Check which Bank Refused to Pay.J^ I. [Allege defendant's corporate capacity and business, as in Forms 44 (ii^d 188, continuing as in Form 419.] " If the indorser was not the payee, " A depositor in bank cannot sue substitute "to pay to one M. N. [or, for the amount of the deposit untU to certain persons, etc.] or order [or, after demand and refusal of payment bearer] dollars, for value re- by the bank. See Form 154 and notes, ceived, and delivered it to said M. N. The theory of this action, to recover [who thereupon duly indorsed the the amount of the unpaid check, is same in blank and delivered it so \that thereby demand and refusal is indorsed]." These bracketed words established, the holder of the check are necessary if the check was pay- being the depositor's agent for the able to order. When payable to purpose of making the demand, order of a fictitious person, state See Form 419 for a claim of dam- transfer to plaintiff as in note 2 to ages for such refusal, necessarily Fonn 409. rested upon a different theory. Actions on Checks, Etc. , 403 I II . [A liege drawing of check, as in paragraph II of Form 419.] III. [Allege indorsement and presentation of check, as in paragraph III of Form 419.] IV. That defendant neglected and refused to accept and pay said check, when so presented, and returned the same to said [collecting bank], and that thereafter plaintiff paid to the holder of said check the full amount thereof. Wherefoee [etc., demand for judgment]. 418. Against the Bank, Drawee, for Refusal to Pay Check Drawn by Plaintiff's Agent, against a Deposit made by the Agent in his own Name under Instructions from Plaintiff.!^ I. [Allege defendant's capacity as a banking corporation, as in Forms 44 o-nd 188.] II. That on or about the day of , 19 , plaintiff was the owner of dollars in money. That on that day he deposited with the defendant, at the city of New York, said sum of money, by and in the name of M. N., to be repaid on demand. III. That the defendant before, and at the time herein- after mentioned, had due notice that said deposit, although in the name of M. N., was really the money of the plaintiff. IV. That the said M. N., to enable the plaintiff to draw said money from the defendant, on or about the day of , 19 , made, and delivered to the plaintiff his check, dated on that day at the city of New York, wherein he directed the defendant to pay to the order of the plaintiff said sum of dollars, which check was duly indorsed by this plaintiff, and afterwards and upon the same day was by plaintiff duly presented to the defendant, and pay- A payee cannot sue on the check Allen v. Am. Nat. Bank, 52 N. Y. 1, unless the bank has certified. N. Y. where the action was sustained on Nego. Instr. Law, § 326; Hentz v. the theory that the moneys so de- Nat. City Bank, 159 App. Div. 743, posited were impressed with a trust 144 N. Y. Supp. 979. in favor of the principal. " This precedent is from Van 404 Abbott's Forms of Pleading ment thereof and of the said sum of dollars de- manded, which the defendant refused. V. That said money, at the time of its deposit as afore- said, was, and ever since has continued to be, the property of this plaintiff, and the defendant, by reason of its refusal to pay the same on said demand, has become indebted to plaintiff in the sum of dollars, with interest, etc. Wherefore [etc., demand of judgment]. 419. Against the Bank, Drawee, by Depositor, for Damages for Refusal to Pay Check. ^^ I. [Allege the corporate capacity and occupation of the de- fendant hank as in Forms 44- f^i^d 188, continuing:] and that at all times hereinafter mentioned plaintiff was a depositor with defendant, and accustomed to deposit with defendant moneys and commercial paper, which said moneys and the avails of said commercial paper the said defendant agreed at all times to hold for plaintiff's accoimt' and to pay out by check drawn by plaintiff whenever duly presented. II. That on or about the day of , 19 , plaintiff drew his check upon the defendant, dated on said day, wherein and whereby plaintiff directed said defendant to pay to the order of M. N. the sum of dollars, and delivered said check to said M. N. That at the time when said check was so drawn and delivered plaintiff had on de- posit as aforesaid with defendant a sum greater than dollars, and said defendant was justly indebted to this plain- tiff in said amount and more, and, as plaintiff is informed and verily beUeves, such sum was then duly credited to him upon defendant's books. III. Upon information and belief that said check was duly indorsed by said M. N. in blank ^' and deposited in '* Adapted from Davis v. Standard 533. The theory is tort, not breach of Nat. Bank, 50 App. Div. 210, 63 contract. N. Y. Supp. 764; Clark Co. v. Mount '' The complaint is defective unless Morris Bank, 85 App. Div. 362, 83 it shows an indorsement of check by N. Y. Supp. 477, aff'd 181 N. Y. payee when presented for payment Actions ok Checks, Etc. 405 the Bank of the city of to the credit of the said M. N. on the day of , 19 ; that it was duly presented so indorsed to defendant by said Bank for payment on that day and that at the time when the same was so presented to the defendant for payment plaintiff had on deposit with said defendant to his credit an amount largely in excess of the amount of said check. , IV. That when said check was so presented to defendant for payment defendant wilfully and mahciously ^° dishonored the same and refused payment thereof, although well know- ing that it was indebted to plaintiff in an amount far in excess of the amount for which said check was drawn, and that said defendant wilfully and maliciously returned said check to said Bank after having marked or caused to be marked conspicuously upon the face thereof the letters or characters "N. G." in blue pencil marks; that such let- ters or characters when written conspicuously upon the face of checks by banks or bankers mean "not good" and that the drawer thereof has not a sufficient sum on deposit to the credit of the drawee to warrant or permit the pay- ment thereof by said bank. V. That through the gross neghgence and mismanage- ment of the defendant, and its wilful, wrongful and maUcious acts as above set forth, and through no fault or wrongdoing of his own, plaintiff has suffered grievous loss and damage to his credit and business standing, and great mental anxiety and suffering, in all to his damage dollars. [7/ special damages have accrued which plaintiff is entitled to recover, they must fee alleged.] Wherefore [etc., demand of judgment]. at bank. Eichner v. Bowery Bank, is established, i. e., that the bank 24 App. Div. 63, 48 N. Y. Supp. "acted through malicious and wilful 978. and wrongful and improper motives," '" In the absence of express or im- a substantial sum may be awarded plied malice, only nominal damages for impairment to his credit, and for may be recovered, in addition to any his mental anxiety over the matter, special damage. Clark Co. v. Mount Davis v. Standard Nat. Bank, Morris Bank, supra. If such malice supra. 406 Abbott's Forms of Pleading 420. Against the Bank, Drawee, having Certified." [From McMahon v. Roseville Trust Co., 159 App. Div. 640, 144 N. Y. Supp. 841.] I. [Allege defendant's capacity as a banking corporation, as in Forms 44 (^nd 188.] II. That on or about the day of- , 19 , at , , one M. N. made his check [or, certain persons, under their firm name of M. N. & Co., made their check], in writing, bearing date on that day, directed to the defend- ant, and thereby required it to pay to this plaintiff or order [or, bearer] dollars, and delivered the same to this plaintiff [or, if payable to a third party, state as in para- graph II, Form 416.] III. That thereafter,, and on or about the day of , 19 , at , the defendant, in writing, accepted and certified said check.^^ IV. That thereafter and on or about the day of , 19 ,' the same was duly indorsed by plaintiff, and so indorsed was duly presented to the defendant for payment, but no part thereof has been paid.^' Wherefore [etc., demand of judgment]. IV. CERTIFICATES OF DEPOSIT 421. Complaint on Certificate of Deposit.^* I. [Allege defendant's corporate capacity, as in Forms 44 <*^ 188.] " A bank is not liable to the holder Div. 331, 88 N. Y. Supp. 83, aff'd of a check drawn upon it, even though 183 N. Y. 511; Carnegie Trust Co. v. it holds funds of the drawer to an First Nat. Bank, 213 N. Y. 301. amount more than sufficient to pay ^^ Should the certification direct the check. Its liability to the payee pajonent at another bank, the com- of the check arises only after cer- plaint should allege presentment for tifioation or acceptance by it (N. Y. payment at that bank, and notice to Nego. Instr. L., § 325; Hentz v. Nat. the certifying bank of non-payment. City Bank, 159 App. Div. 743, 144 "' The certification does not pre- N. Y. Supp. 979); and where the vent the bank from questioning the holder procures its certification, he genuineness of the body of the check, thereby discharges the drawer and aU Nat. Reserve Bank v. Corn Ex. Bank, indorsers from liability. Id., § 324; 171App.Div. 195, 157 N.Y. Supp. 316. Meuer v. Phoenix Nat. Bank, 94 App. ^* A certificate of deposit, in the Actions on Checks, Etc. 407 II. That on or about the day of , 19 , the defendant made and delivered a certificate of deposit to the order of one M. N. [or, bearer] for dollars. That said certificate was in the following words and figures : [Set out copy of certificate.] III. That the said certificate was thereafter duly indorsed by said M. N., and for value delivered to the plaintiff; that said certificate, on or about the day of , 19 , was duly indorsed by plaintiff and was duly presented for payment to the defendant, and payment thereof de- manded but refused by the defendant.^^ IV. That the plaintiff at the time of said presentment and demand was, and is now, the lawful holder and owner of said certificate. Wherefore [etc., demand of judgment]. 421a. The Same; by Survivor of Joint Payees, on Cer- tificate Obtained with Intent to Create Right of Sur- vivorship. [Sustained in Martz v. State Nat. Bank, 147 App. Div. 250, 131 N. Y. Supp. 1045.] =" I. [Allege defendant's corporate capacity, as in Forms 44 and 188.] II. That on or about the day of , 19 , on the deposit with it of the sum of doUars, defend- ant duly issued and delivered its certificate of deposit of which the following is a copy: usual form, payable to the order of the bank may properly refuse pay- the depositor, is in the nature of com- ment upon demand unless the cer- mercial paper negotiable by indorse- tificate is presented. Cottle v. ment. Hanna v. Man. Trust Co., 104 Marine Bank, 166 N. Y. 53. App. Div. 90, 93 N. Y. Supp. 304. ^ Held, that on her survivorship For note and cases on "Negotiable sole ownership of the certificate Character of Certificates of Deposit," passed to plainti£f, and that indorse- see 24 Am. Rep. 610. ment by her husband's personal rep- 25 Where the certificate is not lost, resentatives was unnecessary. 408 Abbott's Forms of Pleading The State National Bank "noeth tonawanda, n. y. , 19 .. A. B. and C. B. have deposited in this Bank dollars, payable to the order of themselves m current funds on the retm-n of this certificate properly mdorsed. In case this amount shall remain on deposit for a period of months, interest on the same shall be allowed at the rate of per cent per annum, but no more than six months interest shall in any event be paid on this certificate. No. 13465. M. N., Cashier. III. That prior to the issuing of said certificate plaintiff had deposited with the defendant the sum of dollars, of which she was then the owner, to the credit of plaintiff and her husband, the said A. B., in the name of A. B. and C. B., for the sole purpose of creating the right of survivor- ship in and to said moneys. IV. That thereafter, and on or about the day of , 19 , the plaintiff and her said husband with- drew from said deposit the sum of dollars thereof, and caused said defendant to issue therefor on that day the certificate above set forth, for the purpose of creating and continuing in the plaintiff and her said husband the right of survivorship in and to said sum. V. That thereafter, and on or about , 19 , and while said marriage relation between the plaintiff and her husband, the said A. B., still existed, her husband died intestate leaving plaintiff him surviving. VI. That thereafter and on or about , 19 , plaintiff duly indorsed said certificate in her own name, and for the purpose of obtaining the moneys represented thereby, and duly presented the same to defendant and demanded payment thereof, which was refused. VII. That by reason aforesaid plaintiff is the sole owner of said certificate, and the moneys due thereon, Wherefoke [etc., demand for judgment]. Actions on Checks, Etc. 409 V. LETTERS OF CREDIT 422. On Letter of Credit Available by Drafts. [Complaint sustained in Johannessen v. Munroe, 84 Hun, 594, 32 N, Y. Supp. 863; again, on the merits, 9 App. Div. 409, 41 N. Y. Supp. 586.] I. That at all the times hereinafter mentioned the plain- tiff was, ever since has been, and still is, [master of the Nor- wegian steamship ], and the defendants were, ever since have been, and still are, co-partners, doing business as bankers in the city of New York, under the firm name or style of J. M. & Co., and in the city of Paris under the firm name and style of M. & Co. II. That on or about the day of , 19 , the defendants, for value, duly issued and delivered to one C. B., in the city of New York, their certain letter of credit or advice. No. 5687, upon the said banking house of M..& Co., of Paris, in the following words and figures: "No. 5687. Office of J. M. & Co., Bankers, No. Street, New York, 19 . "Messrs. M. & Co., Paris: "Gentlemen. — ^We hereby open a credit with you in favor of J. A. J., S. S. for fifteen thousand francs (fcs. 15,000), available in bills at ninety days' date; on ac- ceptance of any bill or bills drawn under this credit, you are to draw on C. B., New York, at seventy-five days' date, payable at the current rate of exchange for first-class bankers' bills on Paris on day of maturity. Commission as arranged. "Bills under this credit to be drawn at any time prior to , 19 . "Truly yours, "J. M. & Co. "The above may be availed of in sterling, if desired; say six hundred pounds sterling (£600). "J. M. & Co." III. That on or about the day of , 19 , 410 Abbott's Forms of Pleading the said C. B. gave and delivered to the plaintiff, in pay- ment of the sum of pounds sterhng on account of certain sums of money then due to the plaintiff as master of the said steamship from the said C. B., said letter of credit or advice drawn by the defendants upon the said M. & Co., of Paris, as aforesaid, and the plaintiff, having first been assured by statements and representations made to him and his representatives by the defendants that said letter of credit had been duly issued by them, and was avail- able for the full amount thereof in the manner provided by the terms of the said letter of credit or advice, accepted the same as and for such payment by the said C. B. at the full face value thereof, and thereupon and on said last-mentioned day a notice in writing was sent to the defendants by the said C. B. that he had delivered such letter of credit in the regular course of business to the plaintiff, who would avail himself thereof accordingly. IV. That thereafter, and on said day of , 19 , the plaintiff duly drew his bill of exchange or draft upon the said M. & Co., Paris, at ninety days, for pounds sterhng, as authorized by such letter of credit or advice, and on said day of , 19 , forwarded the same by mail to the owners of the said steamship for presentation for acceptance. , V. That thereafter, and on or about the day of , 19 , said bill of exchange or draft was duly pre- sented for acceptance at the banking house of the said M. & Co., at Paris, and acceptance thereof was refused by them, whereupon said bill of exchange or draft was duly protested for non-acceptance, of all which due notice was given to the defendants. VI. That the plamtiff accepted the said letter of credit from the said C. B., relying in good faith upon the name and credit of the defendants, and upon said statements and representations made by the defendants with respect to the said letter of credit or advice and the sufficiency, avail- ability and negotiabihty thereof. Actions on Checks, Etc. 411 VII. That no part of said credit of pounds, or the said bill of exchange, or the draft drawn therefor, has been paid, although payment thereof has been duly de- manded, and the plaintiff has suffered damage thereby in the said amount of pounds sterling, which in lawful currency of the United States, amounts to the sum of dollars, together with the sum of dollars, the fees of protesting the said draft for non-acceptance, which, in lawful currency of the United States of America, arnounts to the sum of dollars; in all the sum of dol- lars, with interest thereon from , all of which is now due and owing to the plaintiff from the defendants. Wherefoee [etc., demand of judgment]. CHAPTER XII COMPLAINTS IN ACTIONS UPON ACCOUNTS PAGE 423. Upon an account 412 424. On an account stated 413 425. The same, another form 414 426. The same, when account has become stated by operation of law 414 427. Between former partners to recover a balance due 415 428. Between existing partners; to recover share of profits 416 423. Upon an Account. ^ I. That defendant is indebted to plaintiff in the sum of dollars upon an account [briefly state the character of its items, as: for money laid out and expended, and com- missions in the purchase and sale of wheat by plaintiff as the agent of the defendant, and at his request], as more fully and in detail appears by the annexed copy of said account, marked "Schedule A," which is made a part of this complaint.^ That no part thereof has been paid [although pajmaent has heretofore been duly demanded] ' and the whole amount thereof is due and payable to plaintiff from defendant. Wherefore [etc., demand of judgment], ' Form sustained against demurrer § 531. If so annexed the defendant in Hentz v. Miner, 18 N. Y. Supp. cannot demand a copy under the 880, 46 State Rep. 636; and see section. Liebmann's Sons Brewing Wertheim v. Maintenance Co., 135 Co. v. Cody, 21 App. Div. 235, 47 App. Div. 760, 119 N. Y. Supp. 909; N. Y. Supp. 669; Wilson, etc., Co. v. Smith V. Irvin, 116 App. Div. 359, Dumary, 140 App. Div. 838, 125 101 N. Y. Supp. 904; Beime v. N. Y. Supp. 803. Sanderson, 83 App. Div. 62, 82 N. Y. ^ xhe transactions as ordinarily Supp. 493; Doherty v. Shields, 86 had between a farmer and a country Hun, 303, 33 N. Y. Supp. 497, and merchant, where the farmer sells notes to Forms 117, 213 and 234. produce to the merchant, and in ' It will be desirable to annex the return purchases goods from and bin of items, rather than wait for the draws drafts upon him, requires de- demand under N. Y. Code Civ. Pro., mand before action wiU lie for settle- 412 Upon an Account 413 424. On an Account Stated/ I. That on or about the day of , 19 , at , an account was stated between the plaintiff and defendant for [state briefly, as] medical services rendered ^ by plaintiff to defendant between the day of , 19 , and, the day of ,19 [and if in writing may add: a copy whereof is hereto annexed, marked Schedule A, and made a part hereof;^] that upon such statement a balance of dollars was mutually "found and agreed to be then due to the plaintiff from the defendant.'' II. That the defendant then and there promised and ment of the account, or payment of balance due. Conner v. Chellis, 161 App. Div. 360, 146 N. Y. Supp. 375. * Form adapted from Stein v. Stein, 140 App. Div. 306, 125 N. Y. Supp. 244; Moss v. Lindblom, 39 App. Div. 586, 57 N. Y. Supp. 703; Spell- man V. Muehlfield, 166 N. Y. 245; Sohutz V. Morette, 146 N. Y. 137; Spies V. Michelsen, 2 App. Div. 226, 37 N. Y. Supp. 720. In 28 Abb. N. C. (N. Y.) 236, is a note on the distinction between an ac- tion upon an account stated and an action for an accounting. In 2 N. Y. Anno. Cas. (N. Y.) 43, is a note on an account stated; and see, on the question of what may con- stitute an account stated. Bee v. Tier- ney, 58 III. App. 552; Halliburton v. Clapp, 1 App. Div. 71, 36 N. Y. Supp. 1041. An executor or administrator, suing upon an account stated between the debtor and himself for balance due the deceased, may sue either in- dividually or in hia representative capacity. ' It is enough to simply allege that " the mutual accounts of the plaintiff and defendant were stated" without allegiiig the subject-matter of the original indebtedness. Hall v. N. Y. Brick, etc., Co., 95 App. Div. 371, 88 N. Y. Supp. 582. But the practice accords with the form above given. An account stated only deter- mines the amount of the debt where a liability exists; it cannot of itself create a liability where none before existed. Stocking v. Seed Filter, etc., Co., 175 App. Div. 813, 162 N. Y. Supp. 451. ' It will be generally advisable to annex a written account stated con- taining items, since a party is en- titled to a copy under N. Y. Code Civ. Pro., §531; Keyes v. Flint Co., 69 App. Div. 142, 74 N. Y. Supp. 483; Lundberg v. De Ronde, 146 App. Div. 1, 130 N. Y. Supp. 385; Sanchez V. Dickinson, 19 N. Y. Supp. 733, 47 St. Rep. 203. The rule is otherwise when the adjustment itself is in- dependent of the accounts considered. Herbert v. Hellbut, 119 App. Div. 426, 104 N. Y. Supp. 699. ' It is not necessary for plaintiff to establish an express assent to the correctness of the account. Spellman V. Muehlfield, 166 N. Y. 245. But there must be proof in some form of an express or implied assent. Eames Vacuum Brake Co. v. Presser, 157 N. Y. 389. 414 Abbott's Forms of Pleading agreed to pay said" sum, but that no part thereof has been paid* [except, etc.]. Wherefore [etc., demand of judgment]. 425. The Same ; Another Form.^ That prior to the day of , 19 , the defendant was indebted to plaintiff upon a balance of ac- count for [money loaned]; that on or about said day,* an account was taken and stated between plaintiff and de- fendant; that upon such statement a balance of dollars was found due to plaintiff from defendant, which sum defendant promised and agreed to pay [and has from time to time thereafter made certain payments on account thereof amounting to , dollars, leaving a balance now unpaid and due to plaintiff of dollars] no part of which has been paid. Wherefore [etc., demand of judgment.] 426. The Same; When Account has Become Stated by Operation of Law.^" [As in preceding form to *, continuing:] a full, just and true account was made by plaintiff of the items of [money loaned and payments thereon], and which showed a balance of dollars due and owing by defendant to plaintiff over and above all sums paid by defendant; that on said day plaintiff delivered said account to defendant and the same was accepted and has ever since been retained by him without objection. That a copy' of said account as so stated is hereunto annexed marked "A" and made part hereof. 'An allegation of non-payment is App. Div. 444, 74 N. Y. Supp. 1021; essential, but a denial does not put Stein v. Stein, 140 App. Div. 306, 125 the allegation in issue. Bremer v. N. Y. Supp. 244. Ring, 146 App. Div. 724, 131 N. Y. i» From Donald v. Gardner, 44 Supp. 487. App. Div. 235, 60 N. Y. Supp. 'From Leiser v. McDowell, 69 668. Upon an Account 415 427. Between Former Partners, to Recover a Balance Due." [Adapted from Mackey v. Auer, 8 Hun (N. Y.), 180.] Iv That heretofore, and on or about the day of , 19 , plaintiff and defendant entered into a co- partnership and carried on the business of , under the firm name of B. & Z., at ,* and continued such partnership and business until the day of , 19 , when said firm was dissolved by mutual consent of the parties. II. That on said last-mentioned day, the plaintiff and de- fendant came to and had a full accounting of all matters and transactions before that time had between them in said co-partnership; that an account therefor was fully stated between the plaintiff and defendant; that thereupon it appeared, and the fact was, that the defendant was in- debted to plaintiff in the sum of dollars, for the plaintiff's share of the partnership profits and assets, which were then whoUy in defendant's possession, which said sum the defendant then and there expressly agreed to pay to plaintiff. III. That plaintiff has heretofore demanded payment of said sum of dollars, but defendant has failed and refused to pay any part thereof, and the whole of said sum is now due and payable by defendant to plaintiff. Wherefore [etc., demand of judgment]. 428. Between Existing Partners; to Recover Share of Profits. 12 I. [As in preceding form to* continuing:] that plaintiff was " A complaint in an action by one Supp. 669; Lasky v. Coverdale, 84 partner against another is bad, which Misc. 34, 145 N. Y. Supp. 994. See, does not allege settlement of ac- also, next form, counts and balance struck, and either '^ Adapted from Sehulsinger v. a dissolution of the partnership, or an Blau, 84 App. Div. 390, 82 N. Y. express promise by defendant partner Supp. 686. to pay the balance. See Mitchell v. A copartnership may sue another Tonkin, 109 App. Div. 165, 95 N. Y. copartnership at law, although hav- 416 Abbott's Forms of Pleading to receive per cent of the profits and defendant per cent thereof. II. That on or about the day of , 19 , plaintiff and defendant agreed that the then undivided profits of the copartnership amounted to dollars. III. That defendant is in possession and control of the co-partnership moneys representing said profits, and that he then and there agreed, but has refused, to pay to plaintiff his said share thereof amounting to dollars. WHEREroRE [etc., demand of judgment]. ing in part the same members. Mangels v. Shaen, 21 App. Div. 507, 48 N. Y. Supp. 526. CHAPTER XIII COMPLAINTS IN ACTIONS ON ARBITRATION AWARDS, ETC.^ PAGE 429. On the award of arbitrators 417 430. On an award of an umpire . 419 431. Allegation of an enlargement of the time 420 432. For revoking arbitration submission 421 433. On an award in condemnation proceedings 421 429. On the Award of Arbitrators.^ I. That on or about the day of , 19 , at , disputes and differences existed between the plaintiff and the defendant, concerning a demand by the plaintiff against said defendant, for th§ sum of dol- lars, for [services rendered by this |)laintiff to the said de- fendant, at his request, in drawing plans and specifications of a dwelling house for the defendant, which demand the defendant disputed and refused to pay; or otherwise, state claims according to the circumstances of the case]. 1 See Forms 450 and 451, for com- Civ. Pro., §§ 2365-2386, for the sub- plaints on Arbitration Bonds. mission to arbitration of any contro- An agreement to arbitrate may be versy which might be the subject revoked at any time before final of an action (other than a claim to a submission to the arbitrators; this is freehold interest in real property). 80 although the agreement to ar- The submission must be in writing bitrate provides against its revoca- and contain a provision that judg- tion, and by its terms the party ment shall be rendered upon the revoking has for^a valuable and exe- award. If the submission and award cuted consideration expressly waived comply with the Code requirements, the right to revoke. The other party application may be made to court for may only seek redress by an action for an order confirming the award, and damages. Finucane Co. v. Board of upon such order a judgment may be Education, 190 N. Y. 76. A form is entered, which may be enforced included in this chapter in such an as a judgment rendered in an action, action, for damages caused by the Otherwise the court has no jurisdic- revocation. tion to act upon the award, and an ' Provision is made in N. Y. Code action must be brought upon it. 417 418 Abbott's Foems of Pleading II. That for the purpose of determining said disputes and differences, plaintiff and defendant then and there [by an agreement in writing,^ a copy whereof is hereto annexed and made part hereof, and marked "Exhibit A,"] duly re- ferred the same to the arbitrators therein named, to wit, M. N. and O. P. III. That thereafter said arbitrators duly made * and rendered their award in writing, of which the following is a copy; [or, a copy of which is hereto annexed and marked "Exhibit B," and made a part hereof]. IV. That the plaintiff duly performed all the conditions of said award on his part ^ and [afterwards, and on or about Elec. Steel Elev. Co. v. Kam Molting Co., 112 App. Div. 686, 98 N. Y. Supp. 604. ' It is only necessary that the sub- mission to arbitration in New York should be in writing wherwit is made under the provisions of Code Civ. Pro., §§ 2365-2386, and is intended to be enforced by the entry of judgment directly upon the award, as there pro- vided. An oral submission is good at common law, and an action may be maintained upon the award. Cope v. GUbert, 4 Den. (N. Y.) 347; Diedrick V. Richley, 2 HiU (N. Y.), 271; Hays V. Hays, 23 Wend. (N. Y.) 363; Wells V. Lain, 15 id. 99. And see cases cited in following note. So an umpire may be appointed by parol, unless the sub- mission require the appointment to be in writing. Elmendorf v. Harris, 5 id. 516; but compare s. c. 23 id. 628. * An averment that an arbitrator made an award means a qualified arbi- trator, and sufficiently imports that he was duly sworn, where an oath is required. Browning v. Wheeler, 24 Wend. (N. Y.) 258. An allegation that an award was made, imports that it was ready to be deUvered. Munroe v. Allaire, 2 Cai. (N. Y.) 320. Where the award was required to be delivered to the parties, alleging that it was ready to be, and was de- livered to the plaintiff, it is bad. Pratt V. Hackett, 6 Johns. (N. Y.) 14. An oral award is good at common law. Valentine v. Valentine, 2 Barb. Ch. (N. Y.) 430; DonneU v. Lee, 58 Mo. App. 288; Skrable v. Pryne, 62 N. W. Rep. 21. No award can be enforced unless it conforms to the submission. Sawtells V. Howard (Sup. Ct. Mich., 1895), 62 N. W. Rep. 156. But if it so con- forms, it can only be assailed for cor- ruption, fraud or like misconduct. Shrump ;;. Parfitt, 84 Hun (N. Y.), 341; Re Curtis, 64 Conn. 501. See Elbert v. Haebler, 149 N. Y. 343. ^ Performance by plaintiff of the conditions precedent of the award must, under the Code, be pleaded, as weU as in the case of those of a con- tract. The exception to this general rule, which, before the Code, pre- vailed in respect to pleading upon an award [McKinstry v. Solomons, 2 Johns. (N. Y.) 57], is no longer to be observed. Cole v. Blunt, 2 Bosw. (N. Y.) 116. It may be better to allege per- formance in the terms of the award Aebiteation Awards 419 the day of , 19 , at ], gave notice of said award to the defendant, and demandied * of him pay- ment of the said sum of dollars [or other perform- ance]. V. That the defendant then and ever since has refused to pay to plaintiff the amount of said award, and there is now due from the defendant to the plaintiff thereon the sum of dollars, with interest from, etc. [Should the award be other than for the payment of money, change wording of demand in paragraph IV, and allege: V. That although duly demanded as aforesaid, defendant has neg- lected and refused to surrender possession of said bonds to plaintiff, to plaintiff's damage dollars.] Wherefore [etc., demand of judgment]. 430. On an Award of an Umpire.^ Substitute for paragraph III in the preceding form: III. That rather than in the general form above given especially if doubt exists whether the condition was precedent or concurrent. When one party is directed to pay money on or before a certain day, and the other to convey and give up pos- session on or before that day, or the like, the acts are concurrent, and neither can recover without offer of performance or tender. Huy v. Brown, 12 Wend. (N. Y.) 591. But where the things awarded to be done by the parties are independent, tender of performance or demand of pay- ment before suit is not necessary. Nichols V. Rensselaer Mutual Ins. Co., 22 Wend. (N. Y.) 125; Dudley v. Thomas, 23 Cal. 365. " Notice of the award and deinand need not be averred, unless required by the terms of the submission. 2 Saund. 62a; Rowe v. Young, 2 Brod. & B. 233. ' In complaining upon an award it is of consequence to appreciate the dis- tinction between the powers and au- thority of a person acting with others as an arbitrator, and the powers and authority of an umpire. This form contemplates a provision in the sub- mission to the effect that if the two arbitrators named should disagree then an award shall be made by such person as they should appoint as umpire. Where such an umpire has been appointed and has entered on the performance of his duty, the au- thority to decide ia vested solely in him; the original powers of the ar- bitrators cease to exist. He is not bound to meet or consult with them, though he may do so; and the award is his act alone; and if either arbitra- tor joins in the award, his act is superfluous, and the award is stni that of the umpire only. UnderhiU V. Van Cortlandt, 2 Johns. Ch. (N. Y.) 339; Butler v. Mayor, etc., of N. Y., 1 Hill (N. Y.), 489; Mayor, 420 Abbott's Forms of Pleading said M. N. and 0. P. [arbitrators], before they proceeded upon the said arbitration, on or about the day of ,19 , by writing, under their hands, duly chose and appointed one Q. R. to be such umpire in the matter so sub- mitted; and the said arbitrators, after hearing the plaintiff and defendant, and not being agreed concerning the matters submitted,^ the said Q. R. afterwards duly undertook said arbitration and duly heard the plaintiff and defendant, and on or about the day of , 19 , [proceed to allege the award as in preceding form]. 431. Allegation of an Enlargement of the Time.' That on or about the day of , 19 [or, thereafter, and within the time limited for making the award] the plaintiff and defendant, by agreement [in writing, of which a copy is hereto annexed, and marked "Exhibit C"], duly extended the time for making the award until the day of , 19 . etc., of N. Y. V. Butler, 1 Barb. (N. Y.) 325. But where two ar- bitrators unable to agree appoint under submission a third arbitrator, the power to make an award is vested in the three jointly. Whenever, therefore, the action is founded on an award, its true charac- ter, as the act of an umpire or of arbi- trators, must be set forth in the complaint in order that a defense adapted to its true character may be set up in the answer. Lyon v. Blossom, 4 Duer (N. Y.), 318. In that case the complaint averred a submission to two with power, in case of disagreement, to appoint an umpire, and alleged a disagreement, the ap- pointment of an umpire, and an award by a majority of the three. The submission offered in evidence contained a power to appoint, not an umpire but a third party to assist in the arbitration; and the award was made by one of the original arbi- trators with the new appointee. It was held that this submission and award could not be received in evi- dence; that there was a material vari- ance between the evidence and the complaint which could not be disre- garded without prejudice to the defendant's rights. ' If, as commonly, the arbitrators are to choose the umpire only in case of their own disagreement, this alle- gation is necessary. ' Where the submission provided that the award should be made in December, but on the last day the parties, by erasure and interlineation, upon the submission, extended the time to a day in January, held, that the award made and dated subse- quently might be counted upon as made at the time of its date, instead Arbitration Awards 421 432. For Revoking Arbitration Submission, i" / and II as in Form 429. III. That on or about the day of j 19 , defendant expressly revoked said submission." IV. That plaintiff's costs and expenses and damages which he has incurred in preparing for the arbitration under said submission and in conducting the proceedings before said arbitrator to the time of said revocation amount to the sum of dollars. ^^ Wherefore [etc., demand of judgment] 433. On an Award in Condemnation Proceedings.^' I. That prior to the day of , 19 , plaintiff was the owner of certain premises [briefly identify], which said premises were duly taken by the defendant in condemnation proceedings for [a park]. II. That in such condemnation proceedings, the Commis- sioners theretofore duly appointed therein for the purpose of fixing the damages of plaiatiff [and others], by their report dated the day of , 19 , duly awarded to plaintiffs the sum of dollars for said premises; that thereafter, and on or about the day of , 19 , an order was duly granted by the Supreme Court confirm- ing said award. III. That [more than four months thereafter] on or about of at the time of the alteration. i^ Sustained in Magoun v. Magoun, Tompkins v. Corwin, 9 Cow. (N. Y.) 84 App. Div. 232, 82 N. Y. Supp. 255. 820. " Under N. Y. Code Civ. Pro., '' Adapted from Deering v. City of § 2384, which, however, is only N. Y., 51 App. Div. 403, 64 N. Y. declaratory of the common law, and Supp. 606. Such an award is in effect places no limitation thereon except in a judgment, which may be enforced connection with damages recovera- by an action in law or equity. Cottle ble. Union Ins. Co. v. Central Trust v. N. Y., etc., R. Co., 27 App. Div. Co., 157 N. Y. 633. 604, 60 N. Y. Supp. 1008. See Form 451, for complaint in Another form is given under similar action against the sureties. Statutory Actions, against a mu- "See note at beginning of this nicipality. chapter. 422 Abbott's Forms of Pleading the day of , 19 , plaintiff duly demanded payment of said award from the [comptroller] of the defend- ant, but no part thereof has been paid. Wherefore [etc., demand of judgment for amount, with interest from date of demand].^* " Interest is recoverable only from to which claimant is entitled. Deer- date of the demand.' Gas Engine & ing v. City of N. Y., supra; Carpenter P. Co. V. City of N. Y., 166 App. Div. v. City of N. Y., 44 App. Div. 230, 297, 151 N. Y. Supp. 310. And only 60 N. Y. Supp. 633; Cutter v. Mayor, in case the precise sum is demanded etc., of N. Y., 92 N. Y. 166. CHAPTER XIV COMPLAINTS IN ACTIONS UPON BONDS ^ I. On bonds for payment of money only. page 434. Common form, on the penal sum 423 435. Another form, on the sum named in the condition 424 436. Another form, pleading it according to its legal effect 424 437. Another form, pleading by copy 425 438. Against mortgagor, after foreclosure of mortgage 425 439. On a negotiable bond 426 440. Another form, upon a railroad bond requiring certification by trustee 427 441. On a municipal bond issued in aid of railroad 428 442. On coupon 432 443. On coupon of bond issued by town in aid of a railroad 433 II. On bonds other than for payment of money. 444. Common form, setting forth copy 436 445. Another form, where condition is contained in an instrument which cannot conveniently be set forth 436 446. On a bond for rent, against principal and sureties 436 447. On a bond for the fidelity of an employee 438 448. On a bond for the faithful accounting of an agent 439 449. On bond given to secure stay of proceedings imder a stipula- tion; for reformation of a mistake in it, and for judgment upon it as reformed 441 III. Arbitration bonds. 450. For refusal to comply with award 443 451. For revoking the arbitrator's powers 444 I. ON BONDS FOR PAYMENT OF MONEY ONLY 434. Common Form; on the Penal Sum.^ I. That on or about the day of , 19 , ' See next chapter for forms of com- Gansevoort Bank v. Empire State plaints in actions on official bonds and Surety Co., 112 App. Div. 500, 98 undertakings. N. Y. Supp. 382. A complaint on a bond must show ' This form would not be proper on what the condition of the bond was. a penal bond, conditioned for pay- 423 424 Abbott's Forms of Pleading at , the defendant covenanted with the plaintiff, under his hand and seal,^ to pay to the plaintifif the sum of [state the amount of the penalty]. II. That no part thereof has been paid. Wherefore plaintiff demands judgment against the de- fendant for [the amount of the penalty]. 435. Another Form; on the Sum Named in the Condition, [From complaint in Brown v. Champlin, 66 N. Y. 214.] I. That heretofore, and on or about the day of ,19 , the defendants executed under their hand and seal, and delivered to plaintiff, a bond bearing date on that day in the penal sum of dollars, with a con- dition thereunder written, in substance, that if the defend- ants, their heirs, executors, administrators, should pay or cause to be paid to the plaintiff, his executors, administra- tors or assigns, the sum of dollars on or before the day of > 19 , then the said bond to be void; otherwise, to be and remain in full force. II. That the plaintiff is now the sole, true and lawful owner and holder of the said bond; that of the moneys cov- enanted and secured to be paid by the said bond there is now due and remaiaing unpaid the sum of dollars, and interest thereon from, etc. Wherefore [etc., demand of judgment]. 436. Another Form; Pleading According to its Legal Effect.^ I. That on or about the day of ,19 , at ment of money only, where, as in New ern Assurance Co. v. Hotchkiss York (Code Civ. Pro., § 1915), it is (Wise.) 63 N. W. Rep. 1020. given the effect only of containing a An allegation of "bond or writing covenant to pay the sum named in the obUgatory," impUes a seal sufficiently condition. Use Form 436 in New to import a consideration. Paddock York. V. Hume, 6 Oreg. 82. ^ The seal imports a consideration, * By § 1915, N. Y. Code Civ. Pro., a and, therefore, there need be no bond of this character is given the allegation of the existence of a con- effect of containing a covenant to sideration. See note on considera- pay the sum named in the condi- tion, p. 21, and cases cited; North- tion. Bonds 425 , the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of dollars [state, not the penalty, but the sum stated in the condition], on the day of , 19 , with in- terest from, etc. [or, as follows: dollars thereof on the day of , 19 , and dollars thereof on the day of , 19 , with interest on each of said sums from, etc. — or, otherwise, according to the condition]. II. That no part of the same has been paid [except the sum of, etc.] and there is now due and owing to plaintiff on said bond the sum of dollars, with interest from [state]. Wherefore [etc., demand of judgment for the amount due]. 437. Another Form, Pleading by Copy. [Under N. Y. Code Civ. Pro., § 534.] I. That heretofore, and on or about the day of , 19 , at , the defendant made and de- livered to plaintiff his certain bond, as follows: [setting forth a copy. — Or, a copy whereof is hereimto annexed, marked Exhibit A, and made a part of this complaint]. II. [As in paragraph IT, Forms 434, continuing] and that there is now due on said bond from defendant to plaintiff the sum of dollars, with interest from [state], which plain- tiff claims. Wherefore [etc., demand of judgment]. 438. Against Mortgagor, after Foreclosure of Mortgage.' I. [As in Forms 436 or 437.] II. That accompanying said bond was a mortgage in the usual form, made by the defendant and one C. B., his wife, 'Under N. Y. Code Civ. Pro., See Darmstadt v. Mason, 144 App. § 1628. A complaint which showed Div. 249, 128 N. Y. Supp. 992. a prior foreclosure would be de- See Form 506, for a complaint murrable if it failed to allege leave of against guarantors of the debt, after court; but the court might grant foreclosure, leave nunc pro tunc in a proper case, 426 Abbott's Forms of Pleading covering certain premises upon street in the City of III. That thereafter said bond became due and payable, but the same was not paid, and on or about the day of , 19 , plaintiff duly commenced an action for the foreclosure of said mortgage; that such proceedmgs were thereafter duly had in said action that a judgment of fore- closure and sale was duly granted and entered, and said premises were duly sold thereunder. IV. That upon such foreclosure sale, after deducting the cost and expenses of such sale, there was received and paid to plaintiff, upon his said bond and accrued interest thereon, the sum of dollars, leaving unpaid thereon the sum of dollars, no part of which has been paid. V. That on or about the day of , 19 , an order was duly granted by the said Court, giving leave to plaintiff to bring this action to recover the unpaid portion of said debt.* Wherefore [etc., demand of judgment]. 439. On a Negotiable Corporate Bond.' I. [Allege defendant's corporate capacity; see Forms 44, ^fc-] ' An ex parte order is improper, title in the possession, it is not as Cooper Co. v. Naumburg, 154 App. instruments negotiable under the law Div. 225, 138 N. Y. Supp. 1005. merchant, as bills and notes are, but ' A bond of a private person pay- as instruments of a peculiar character able to bearer is not negotiable, but is expressly, designed to be passed from only assignable. An exception is hand to hand, and by a common made, however, in the case of corpo- usage known to all, actually so trans- rate bonds, which are treated as ferred." The presence of due and negotiable. Mant. Sav. Inst. v. Nat. unpaid coupons is sufficient to put a Exch. Bank, 170 N. Y. 58; Morris purchaser on inquiry, but they do not Canal & Boating Co. v. Fisher, 3 Am. of themselves make the bond dis- Law Register (1st series), 423 (which honored paper. Buffalo Loan, etc., has been the basis of later decisions), Co. v. Medina Gas Co., 162 N. Y. 67; places the negotiability of corporate Railway Co. v. Sprague, 103 U. S. 756. bonds on special grounds, not appli- In order to entitle it to make a de- cable to individual engagements, fense, the defendant corporation in There the court said (p. 425) : " If the New York, must serve with its answer bonds in question are transferable by or demurrer a judge's order directing delivery so as to confer a complete the issues presented by the pleadings Bonds 427 II. That on or about the day of , 19 , the said defendant duly executed its negotiable bond bear- ing date on said day, in the sum of dollars, payable to bearer [or, to M. N., or order,] years after said date, at the Bank in , a copy of which bond is annexed hereto and hereby made part of this complaint, marked "Exhibit A" [or plead by legal effect as in preceding forms]. III. That thereafter and before the maturity of said bond plaintiff purchased the same for a valuable consideration and is still the owner thereof. IV. That no part of said bond has been paid, and there is due thereon from defendant to plaintiff the said sum of dollars, and interest thereon from the day of , 19 , which pkintiff claims. Wherefore [etc., demand of judgment]. 440. Another Form, upon a Railroad Bond Requiring Cer- tification by Trustee.' I. [Allege defendant's corporate capacity; see Forms 44, ^tc] II. That on or about the day of , 19 , the defendant duly made, signed, executed and delivered, for value received, an issue of its bonds known as [describe issue by name] as hereinafter mentioned. be tried. Code Civ. Pro., § 1778. maker to issue new bonds to him, but This applies to municipal corpora- may by injunction restrain the maker tions. Moran v. Long Island City, from paying the bonds and compel 101 N. Y. 439. ' him to make any claimants parties to In Bainbridge v. City of Louisville, the suit that they may litigate their 7 Ky. L. Rep. 269, it was held that right with the original owner. See a where bonds payable to bearer are form of. complaint to recover upon stolen from the rightful owner, and lost bonds upon giving indemnity, the maker is notified of the theft, he Man. Savings Inst. v. East Chester, should require one presenting the 44 Hun (N. Y.), 537. bonds or coupons for payment to ' Adapted from complaint in Els- show himself an innocent purchaser worth v. St. Louis, etc., R. Co., 98 N. for value before maturity. If the Y. 553, where judgment for plaintiff maker pays any such bond or coupon was aflBrmed, against a defense of after maturity he does so at his peril, ultra vires. The original owner cannot compel the 428 Abbott's Forms of Pleading III. That the said bonds bear date on said day of , 19 , £i.nd purport to be some of the bonds of a series of bonds, numbered to (in- clusive, for the sum of dollars each, and are made payable on the day of , 19 , at the office or agency of said defendant in the city of , with interest thereon, from the date thereof, at the rate of per cent per annum, payable semi-annually at the said office or agency in the city of , upon the days of and in each year. IV. That said bonds are made payable to bearer, and are therein stated to be secured by a certain deed of trust, bearing even date with said bonds, executed and delivered by said defendant to the Trust Company, of as trustees; that it is expressed in the said bonds that they respectively shall not become vaUd or obhgatory until the same shall have been authenticated by a certificate indorsed thereon and duly signed by the said trustee or its successors. V. That each of the said bonds hereinafter mentioned was and is duly authenticated by said certificate indorsed thereon and duly signed by the said trustee. VI. That plaintiff is the owner of of said bonds hereinbefore mentioned and described, respectively num- bered , and that the said bonds are all due and un- paid, and that there remains also due upon the said bonds interest at the rate of per cent per annum from Wherefore [etc., demand of judgment], 441. On a Municipal Bond,^ Issued in Aid of Railroad. I. That the plaintiff is a citizen of the State of V., and ' From an unreported precedent in upon lost municipal bonds upon giv- the United States Circuit Court for ing a bond of indemnity in Man- the ^southern district of New York, hattan Savings Inst. ». East Chester, where plaintiff recovered judgment. 44 Hun (N. Y.), 537. See, also, form of complaint on The fact that the bonds are nego- CoupON OF Municipal Bond, Form tiable does not prevent the defense of 443. See, also, the averments of the any invalidity which is of a jurisdic- complaint in an action to recover tional or fundamental nature. Cit. Bonds 429 that defendant is a citizen of the State of N. Y., a corporation duly created and existing under and by virtue of the Laws of the State of N. Y., and was and is a town in the county of , in said State of N. Y., and in the southern district of N. Y. II. That on the Legislature of the State of New York pa-ssed an act which became a law, entitled "An act to authorize certain towns in the counties of U. and 0. to issue bonds and take stock in the W. V. R. R." III. That in and by virtue of the said act of the said Legislature the town of S., the defendant herein, was au thorized in substance and effect to aid in the construction of the said railroad, and to issue bonds therefor, by com- missioners to be appointed for that purpose.^" Sav. Bank v. Greenburgh, 173 N. Y. 215. When bonds are negotiable, see ^ Manh. Sav. Inst. v. Nat. Ex. Bank, 170 N. Y. 58. "• In an action on negotiable bonds issued by a town which had been authorized to make such bonds for specified purposes only, it is not enough for the plaintiff to aver in general terms that the town was au- thorized* to issue the bonds in suit; but he must state the facts which bring the case within the special authority. A complaint in such a case is demurrable if, as to this point, it only alleges that defendant was a municipal corporation, existing under the laws of the State, with full power and authority pursuant to those laws, to execute negotiable commer- cial paper, and that pursuant to those laws it executed the bond sued upon, and does not show the purpose for which the bond was made. Hopper V. Town of Covington, 118 U. S. 148. Where city bonds recited on their face that the conditions had been complied with which authorized their issue, in an action on them by an innocent holder, pleas which simply tender an issue to the authority of the city to issue the bonds are de- murrable. Nauvoo V. Ritter, 97 U. S. 389, 24 Law. Ed. 1050; com- pare, Cagwin v. Town of Hancock, 84 N. Y. 532, as illustrating the con- flicting rules applied in the Federal and State courts. Recitals in a bond are not enough to raise an estoppel. Sutliff V. Lake County Comm'rs, 147 U. S. 230. Where a declaration sets out a copy of bonds, with all the recitals, and the recitals show that the bonds were ir- regularly issued and not binding upon the township, the declaration is de- murrable. McClure v. Oxford, 94 U. S. 429, 24 Law, Ed. 129. The plaintiff may prove that he was a bona fide holder and owner of the coupons sued on, under an aver- ment in the petition that he is the owner thereof, which is denied. Ralls County V. Pouglass,^ 105 U. S. 728, 26 Law. Ed. 957. In an action upon coupons, pleas that the plaintiff is neither the owner, holder, nor bearer, and that the bonds 430 Abbott's Forms of Pleading IV. That afterwards, in pursuance of the said act of the Legislature, E. V. K., E. B. and D. R., who were respectively freeholders and residents of the defendant town of S., in the county of , were duly appointed commissioners of the said town of S., to carry into effect the purposes and provisions of the said act of the said Legislature, and that they subsequently qualified and entered upon the discharge of their duties as said commissioners. V. That thereafter the said commissioners, duly appointed and quaUfied in pursuance of the said act of the said Legisla- ture, duly executed the bonds of the said town of S., dated , the aggregate principal whereof amounted to the sum of dollars, or thereabouts, which said bonds were of different denominations, to wit, , , and , and of different series, which were made out to become fully due and payable at different times, not exceeding years, and were in form as follows: [Copy of bond set out here.] VI. That aimexed to each of said bonds at the time of its execution and issue was a series of coupons, signed by E. V. K., secretary and one of the commissioners, whereby the said defendant town of S. promised and imdertook fo pay the interest on such bonds annually on in each year, until the principal of each of such bonds should, by the terms thereof, become due and payable. VII. That on , the Legislature of the State of New York passed an act which became a law, entitled "An act to facilitate the construction of the W. V. R. R.," which said act is chapter of the Laws of the State of New York for said year, and is in the words and figures follow- ing, to wit: [Copy of act set out, but probably unnecessarily under N. Y. Code Civ. Pro., § 530.] belonged to a third person, and that ton County v. Amey, 13 Wall. 297, 20 the county did not make them, are Law. Ed. 579. good on general demurrer. Pendle- Bonds 431 VIII. That thereafter the said commissioners, so as afore- said appointed and qualified, did, in pursuance of the said acts of the Legislature, and conformably thereto, duly issue and deliver said bonds of the said defendant town of S. for their proper value, to the board of directors of the said W. V. R. R. Co., and received in exchange therefor, as pro- vided in said last-mentioned act of said Legislature, an equal amount of the stock of the said W. V. R. R. Co., which said stock of the W. V. R. R. Co. was duly delivered to, and accepted by, the said town of S., and has ever since been and is held by said town of S., or its assigns, and that the bonds and coupons so as aforesaid issued and delivered therefor passed into the possession and became the property of various persons and corporations in good faith and for valuable consideration. IX. That thereafter, on , the said Legislatiire of the State of New York passed an act which became a law entitled "An act in relation to the W. V. R. R. Co. and the town bonds issued in aid of its construction," which said act is chapter of the Laws of the State of New York for said year and is in the words and figures following, to wit : [copy of act set out]. X. That afterwards the said town of S. paid the respec- tive holders of the. bonds executed, issued and delivered as aforesaid the sum of dollars or thereabouts, being part of the principal sum Inentioned in and secured by cer- tain of said bonds at or about the time when said principal amoimt fell due and became payable by the terms of said bonds, and also paid to such respective holders the said interest which fell due and became payable on or before XL That after the issue and delivery of the bonds afore- said, and prior to the commencement of this action, the plaintiff purchased for value and became the owner of of said bonds so numbered and described as follows: [numbers and description of bonds set out]. XII. That the said bond numbered of series 432 Abbott's Forms of Pleading , became by its terms due and payable oh , and on said day the said town of S., in the county of the defendant, thereby became and was indebted unto this plaintiff as owner and holder of said bond in the principal sum herein mentioned, to wit, the sum of dollars, and in the further sum of dollars, being the interest on said sum, which also became due and payable on the day last aforesaid, but although the said bond and the said interest coupons annexed were duly presented for payment at the place of payment therein mentioned, to wit, at Bank at and payment thereof demanded, the sum was not, neither was any part thereof paid, nor has any part of said sum been since paid, and the said defendant town of S. in the said county of , has neglected to and Te- fused to make any provision for the payment thereof. XIII. That the said plaintiff at the time of the commence- ment of this action was and he still is the owner and holder of the said bond and interest coupons, and there is now actually due thereon the sum of dollars, with interest at the rate of per cent per annum, from the day of Wherefore [etc., demand of judgment]. 442. On Coupon. [From McClelland v. Norfolk Southern R. Co., 110 N. Y. 469.] '1 I. That on or about the day of , 19 , at the city of , said defendant made, issued and delivered its certain coupon, numbered , attached to its certain bond dated the day of , 19 , " Where it was held that an action obhgation contained in the bond and may be maintained upon the coupons a transferee takes it subject to any without the production of the bond; defense existing to the bond in the but if the coupons refer to the bond, hands of the original payee. See, and the bond'contains special stipula- also, Manning v. Norfolk Southern tions, whereby their payment is sub- R. Co., 29 Fed. Rep. 838; Kelly v. ject to contingencies beyond the con- 42nd St. Ry. Co., 37 App. Div. 500, trol of the holders, a recovery upon 55 N. Y. Supp. 1096. the coupons must be based upon the Bonds 43;? numbered , by which coupon it promised to pay to the bearer the sum of dollars' on the day of , 19 , at II. That said coupon has come lawfully into possession of plaintiff, and that no part thereof has been paid. Wherefore [etc., demand of judgment]. 443. On Coupon of Bond Issued by Town in Aid of a Rail- road. ^^ I. That the Railroad Company now is, and since , has been a railroad company, duly authorized and incorporated under and in pursuance of the statutes of the State of , for the purpose of constructing, main- taining and operating a railroad from the city of , in the county of , in the State of , to the city of , etc. II. That the defendant, the town of H., now is, and for twenty years last past has been, one of the towns of the county of , in the State of , and a municipal corporation organized and existing pursuant to the statutes of this State. III. That in pursuance of chapter of the Laws of 19 , of said State of , said defendant, said town of H., was authorized to take stock in and issue its bonds in aid of the construction of the said Railroad Com- pany. IV. That on , J. W. G., N. W. H., J. M. M. were assessors for the said town, and that on that day they made an affidavit, of which the following is a copy, to wit: [copy '* From the complaint in Cagwin by some statute, and are only binding V. Town of Hancock, 84 N. Y. 532, upon the town when issued in the way where no question of pleading was in- pointed out by the statute; except volved, and the decision on the merits that irregularities or omissions not of established the rule in New York that a fundamental or jurisdictional char- there can be no bona fide holder of acter may not be urged. See Cit. town bonds within the meaning of Sav. Bank v. Town of Greenburgh, the law applicable to negotiable 173 N. Y. 215. paper, as they can only be issued by See, also. Form of Complaint on virtue of special authority conferred Municipal Bond, No. 441. • 434 Abbott's Forms of Pleading of affidavit of assessors in regard to borrowing powers of the town]. That said affidavit, together with the consents therein referred to, were, on , duly filed and recorded in the office of the clerk of said county of , and certified copies thereof were, on , duly filed in the office of the clerk of the defendant town of H. That the following is a copy of the consents therein re- ferred to: [copy of. the consents that commissioners be appointed in accordance with the provisions of the several acts relatijig to the construction of the railroad]. V. That under and in pursuance of the aforesaid acts of the Legislature, W. M., J. M. M. and F. M. W. were duly appointed commissioners for the said town, and executed a bond pursuant to section , chapter of said Laws of 19, which was duly approved and filed with the supervisor of the defendant, the town of H., and entered upon the discharge of their duties as such. VI. That on said commissioners subscribed for dollars of the capital stock of said railway, and said commissioners thereupon, between and , both inclusive, duly issued bonds of said defendant, said town of H., to the amount of dollars, of which bonds the following is a copy, except as to number and amount, to wit: [copy of bond set out]. That of said bonds were of the numbers of to , inclusive, and were for the payment of dollars each, etc. VIL That during the years and said rail- road company constructed its road through the aforesaid town of H. upon the route designated in the aforesaid con- sent at an expense of more than dollars, and that said railway now is and since has been in opera- tion from to through the town of H. upon the route designated in said consents, and that said railway company has performed all the conditions of said consents. VIIL That on said F. M. W., W. M. and J. M. Bonds 435 M., commissioners as aforesaid, subscribed of the capital stock of said railway company and paid therefor with said bonds, which were issued and delivered at divers times as the work of construction of said railroad progressed in said town of H., which bonds were purchased for value in good faith and are now owned by divers different persons and corporations in the State of and elsewhere. IX. That on said railway corporation issued to the said defendant town of H. a certificate of shares of capital stock of the said corporation, which certificate and the shares of stock represented thereby are now owned by the aforesaid town. X. That the said plaintiff, before the commencement of this action, became and now is the legal owner and holder and purchaser in good faith and for full value of coupons, of which the following is a copy: [copy of coupon set out], which said coupons were cut from the bonds numbered amoimting to the sum of dollars. XI. That all said coupons were attached to and issued with said bonds at the time and in the manner hereinbefore stated, and were thereafter and before the commencement of this action detached from said bonds. XII. That no funds are or ever have been deposited or been ready at the place where said coupons are payable to pay the same or any part thereof, but that defendant does now and ever has neglected and refused to pay said coupons or furnish the money for the payment thereof at the place where the same are payable, and has hitherto neglected and refused and still does neglect and refuse to pay said coupons or any part thereof, although payment thereof was before the commencement of this action duly demanded of the supervisor of the said defendant town of H., which was refused. That there is due and justly owing to plaintiff by reason of the facts aforesaid the sum of dollars together with interest from, etc. Wherefore [etc., demand of judgment]. 436 Abbott's Forms of Pleading 11. ON BONDS OTHER THAN FOR PAYMENT OF MONEY 444. Common Form; Setting Forth Copy. I. That the defendant, on or about the day of 19 , made and delivered to plaintiff his bond or writing obligatory, sealed with his seal, of which a copy is hereto annexed marked Schedule A and made a part of this complaint. [Annex copy of bond.] II. [Set forth a single breach; see following forms.] III. For a further breach the plaintiff alleges,'* etc. 445. Another Form; where Condition is Contained in an Instrimient which Cannot Conveniently be Set Forth. I. That on or about the day of , 19 , at , the defendant, under his hand and seal, cove- nanted with the plaintiff to pay to the plaintiff the sum of [state the penalty], upon the express condition thereunder written, that if, etc. [set forth the svbstance, or the words, of the condition], the said obligation was to be void; otherwise to remain in full force. II. [Allege breaches and damages, as in other cases; see forms following.] Wherefore [etc., demand of judgment]. 446. On a Bond for Rent; against Principal and Sureties.*^ I. That plaintiffs were, at the time next hereinafter men- tioned, possessed of certain issues and profits arising and accruing froim certain wharves in the city of New York, hereinafter mentioned — viz., the right to collect wharfage from such vessels as should lie against or touch at the said wharves; and being so possessed, and on or about the " Where the cause of action is rfe '* This is, in substance, the com- garded as entire, but the pleader de- plaint used in Mayor, etc., of N. Y. sires to charge several breaches, they v. Mabie, 13 N. Y. 151. may be appropriately stated in sepa- See note 1 on p. 504. rate paragraphs as above. Bonds 437 day of , 19 , by an instrument in writing, bearing date on that day, one part whereof was duly executed by plaintiff, the city of New York, and the other part whereof was duly executed under the hand and seal of the defendant [lessee], the plaintiffs demised and leased to the said [lessee], in consideration of certain rents and covenants therein re- served and contained, the right to levy and collect to his own use all the wharfage which should or might arise, ac- crue, or become due between the day of , 19 , and the day of , 19 , from the use or occupation [by vessels of more than five tons burden,] of any of Ohe wharves belonging to the plaintiffs, from and in- cluding the easterly side and end of the middle pier at Coenties Slip, or Pier No. 7, to and including the westerly half of Pier No. 8, or the pier on the easterly side of Coenties Slip, together with the bulkhead between said piers, and which were known as "District No. 5. of Public Docks and Slips," except certain docks, slips, wharves, piers, and places therein mentioned and excepted. And the plaintiffs further thereby authorized the said [lessee] to demand and receive all lawful sums of money due for wharfage thereon. II. And the said [lessee] on his part covenanted to pay to the said [plaintiffs] the sum of dollars, in four equal quarterly payments, on the first days of August, Novenaber, February and May next thereafter. III. That the said [lessee] on said day of the making of said lease, and as a part of the agreement and in order to secure the payment of the said rent, in and by the said lease agreed to be paid, duly executed, together with the defend- ants [sureties], under their respective hands and seals, a joint and several bond, in the sum of dollars, conditioned for the due payment of the said rents in said lease so reserved unto the said [plaintiffs] at the times at which they should respectively fall due. IV. That the said [lessee] entered upon the said premises, and collected and retained for his own use and benefit and behoof, the wharfage thereof, under and in pursuance of the 438 Abbott's Forms op Pleading said lease for the full term thereof, but has neglected and failed to pay the amount due to the [plaintiffs] under the said lease, but that there is still due and unpaid for rent for the months of thereon, from the said [lessee], the sum of dollars, ^^ with interest upon the sum of dollars from, etc., upon the sum of, etc. V. [State the demand on principal; notice . to surety, and demand on surety, where these facts are necessary.] " 447. On a Bond for the Fidelity of an Employee." I. [Allege plaintiff's corporate capacity as in Forms 44, etc.] II. That on or. about the day of , 19 , at , one M. N. made apphcation to plaintiff for his appointment as cashier of the plaintiff, and therewith pre- sented his bond, duly signed and sealed by himself and the defendants, of which a copy is hereunto annexed marked A and made a part hereof :^^ [The bond was in the usual form of a joint and several bond, in the penal sum of $30,000, and conditioned as follows:] The condition of this obligation is such that, whereas the above bounden, M. N., has been duly appointed cashier of the said Bank, now if the said M. N. shall well, honestly and faithfully discharge the duties of such cashier, and shall at all times account for and pay over all moneys which have come, now are, or hereafter may come into his hands, belonging to said bank, and shall " In an action to recover, from the v. Van Voorhis, 91 N. Y. 353, against surety upon a lease, the amount of an objection that it was defective in rent due, plaintiff will not be required not assigning specific breaches, under to reduce defendant's liability by 2 R. S. 378, § 5, then in force, but sub- setting forth the particulars of certain sequently superseded by Code Civ. sums received by him from the prem- Pro., § 1915. See, also, Guarantee ises, which the surety is entitled to Co. v. First Nat. Bank, 95 Va. 480; have credited to him. The plaintiff Kohlberg v. Fett (Tex. Ct. Civ. App. is not bound in his complaint to fur- 1895), 29 S. W. Rep. 944. nish the defendant with the particu- " It is not necessary to allege a con- lars of an offset. Giles v. Betz, 15 sideration, as one is presumed. See Abb. Pr. (N. Y.) 285. general note on consideration, p. 21; " See notes to forms under Com- Northern Assurance Co. v. Hotchldss, PLAINTS ON Guaranties, post. 63 N. W. Rep. 1020. " Complaint sustained in Bostwick Bonds 439 keep true and accurate books of all the affairs of the said bank intrusted to him, then the above obUgation to be void, or else to remain in full force and virtue. That said bond was duly accepted by said plaintiff, and said M. N. was duly appointed and entered upon his duties as cashier. III. That said M. N., during the time he continued to act as such cashier, did not honestly and faithfully discharge the duties of such cashier, and did not at all times account for and pay over all moneys which came into his hands, belonging to said plaintiff, and did not keep true and accu- rate books of all the affairs of the said plaintiff intrusted to him. But, on the contrary thereof, the said M. N. paid out the moneys of said plaintiff fraudulently to various persons, without any sufficient vouchers or security therefor, and fraudtdently permitted various persons to overdraw their accounts without any security, and fraudulently altered and falsified the accounts and books of said plaintiff so as to conceal said fraudulent doings, and has refused to pay over to its president and directors large sums of money belonging to plaintiff, to wit, dollars and over, and has refused to account for the same, to the damage of the said plaintiff, doUars." Wherefore [etc., demand of judgment]. 448. On a Bond for the Faithful Accoimting of an Agent. ^'' I. That on or about the day of , 19 , at , it was mutually agreed between this plaintiff " It is siiflScient as against de- N. Y. 524, the complaint set forth the murrer to merely negative the acts of the bank cashier with great language of the condition of the bond, detail, quoted in the opinion, when that wiU necessarily show a "> The sureties on a bond for a breach; but the better form is to faithful accounting are proper parties aflBrmatively allege the facts showing defendant in a suit for an accounting the breach. Town of Hadley v. against the principal, but no decree Gamer, 116 App. Div. 68, 101 N. Y. for payment can be made against Supp. 777. them in such suit. Mayor, etc., v. In Kankin v. Bush, 102 App. Div. Alyea (N. J.,) 32 Atl. Rep. 70. 510, 92 N. Y. Supp. 866, aff'd 182 440 Abbott's Forms of Pleading and one M. N., that the said M. N. should canvass the' cities of , for subscribers to certain books then in course of pubUcation in numbers by the plaintiff, and had for sale by him to subscribers [or, for subscribers to the , a magazine or periodical then published by this plaintiff]; that the said M. N. should collect for account of the plaintiff the moneys which should grow due upon the subscriptions prociu-ed by him; that the plaintiff should pay to said M. N. dollars upon each order or sub- scription obtained by him, the same to be payable when- ever numbers of the work subscribed for should have been paid for by the subscriber thereof; and that the said M. N. should faithfully account to this plaintiff for all books and parts of books intrusted to him, and should faith- fully pay over to the plaintiff [on the day of each month] all the money that he should from time to time col- lect for subscriptions to said books under the authority given him by the said agreement [during the month next preceding], over and above his commission of dollars for ^ach order or subscription. [Or otherwise according to the agreement between the parties.] II. That then and there [or, on or about the day of , 19 , at ] the defendant made and delivered to the plaintiff his bond under his hand and seal, and thereby bound himself in the penal sum of dol- lars to this plaintiff, the condition of which bond was, that if the said M. N. should faithfully render up, or account for, to this plaintiff, all books and parts of books and other publications and specimens, and all sums of money, evi- dences of debt, and things in action which should be intrusted to him by or on behalf of this plaintiff, or by or on behalf of others to the use of this plaintiff, in the course of the em- ployment of said M. N. as a canvasser as aforesaid, up to and not exceeding the amount of dollars at any one time [or, otherwise, according to the condition as stated in the bond], then said bond should be void, otherwise it should be of full force and effect. Bonds 441 III. That the plaintiff did thereafter intrust and deliver to said M. N. in the course of his employment under«the agreement aforesaid, certain books and parts of books of the value of dollars, for which he has failed to account to the plaintiff [or, that thereafter and between the months of, etc., said M. N. did collect and receive divers sums of money in the course of his employment under the agreement aforesaid, over and above his commissions, to wit, the amoxmt of dollars, which sums he failed to render up, account for, or pay over to the plain tiff]. ^^ IV. That on or about the day of , 19 , at , plaintiff duly requested said M. N. to account to this plaintiff for said books and parts of books [or, to accoimt for and pay over to this plaintiff such sums], but he has not done so, of which this plaintiff gave due notice to the defendant, and thereupon demanded payment from him of the said sum of dollars, according to the terms of said bond,^^ but the same has not been paid nor any part thereof. Wherefore [etc., demand of judgment]. 449. On a Bond Given to Procure a Stay of Proceedings Under a Stipulation; for Reformation of a Mistake in it, and, for Judgment upon it as Reformed, ^^ I. That on or about the day of , 19 , the plaintiffs recovered a judgment against one M. N. in " Where the agreement set forth in Request is a condition precedent to the declaration was to sell for not less an action on a bond that the principal than a certain sum, and to account shall account on request. Davis v. for the proceeds, and the declaration Gary, 15 Q. B. 418, 69 Eng. Com. L. merely averred a refusal to account, R. 416. See also First Nat. Bank v. and did not aver any sale, it was held Story, 200 N. Y. 346. bad. Wolfet). Luyster, 1 Hall (N. Y.), ^' A complaint seeking to have a 146. written contract reformed, and for ^^ Under such a bond allegations of judgment thereon when reformed, notice to the surety and demand on states but a single cause of action, the surety for pajnment are not neces- See notes to forms in Chapter LXIX, sary. Howe Machine Co. v. Farring- for reformation on the ground of ton, 82 N. Y. 121. fraud or mistake. 442 Abbott's Forms of Pleading the Court of this State, in and for the county of • , for the sum of dollars, in an action wherein these plaintiffs were plaintiffs and said M. N. was defendant. II. That on or about the day of , 19 , pending proceedings supplementary to execution on said judgment, to collect the same from said M. N., he, the said M. N., moved said court to have the judgment vacated. III. That thereupon, and at the request of said M. N., the plaintiffs stipulated with him that if he would give them security for the payment of said judgment, to wit, the bond of some third person, conditioned for the payment by M. N., upon demand, of the amoxmt due on said judg- ment, if his said motion was denied, they would stay such proceedings to collect the judgment until the determination of the court upon such motion. IV. That in pursuance of such stipulation said M. N. thereupon caused to be drawn a bond, of which a copy is hereinafter set forth, which he represented to the plaintiffs that he intended to have executed by one O. P., in the body thereof named as the obligor therein. V. That on the day limited by said stipulation for the delivery of said bond, said M. N. represented to the plain- tiffs that said O. P. was out of town, and that access could not be had to him to obtain the execution by him of said bond, and the said M. N. thereupon offered to procure such a bond to be executed by the defendant Y. Z., instead of by said O. P., which bond these plaintiffs thereupon con- sented to receive. VI. That on or about the day of , 19 , in consideration of the premises and of the stipulation of these plaintiffs to stay proceedings as aforesaid, the defend- ant Y. Z., at the city of , executed and delivered to these plaintiffs his bond in writing, under his hand and seal, of which the following is a copy: [copy of the bond, with name of 0. P. in the title, but signed by Y. Z., the defendant]. VII. That the striking out o'f the name of said O. P. from the bond as prepared for execution, and the insertion instead Bonds 443 thereof of the name of said Y. Z., were accidentally omitted, by mistake of the parties to said bond, and that the name of said O. P. remained therein contrary to their intention. VIII. That thereupon the plaintiffs stayed proceedings, as agreed, until the determination of the court upon said motion. i IX. That thereafter, and on or about , the de- termination of said court was duly made, that the said mo- tion be denied, and that the whole amount of said judgment was still due and owing to the plaintiffs from the said M. N. X. That on or about the day of , 19 , payment of the amount due on said judgment was duly demanded of said M. N.; but no part thereof has been paid, and there is now justly due to these plaintiffs from said M. N. thereon the sum of dollars, with interest from said day of , 19 , of all which the defend- ant had due notice. XI. That thereafter, and on or about the day of , 19 , said bond was duly presented to said Y. Z. and payment thereof demanded; but no. part thereof has been paid, and there is now due thereon from the de- fendant to these plaintiffs the sum of dollars, with interest from, etc. Whekefobe, plaintiffs demand judgment that said bond be reformed by striking out therefrom the name of said 0. P., and inserting in the place thereof the name of the defendant Y. Z., as the obUgor therein; and that plaintiffs have judgment against the defendant for the sum of dollars, with interest, from, etc. m. ARBITRATION BONDS 450. For Refusal to Comply with Award.''* I. That heretofore, and on or about the day of '* This fornj is supported by Myers For form of complaint upon the V. Dixon, 2 Hall (N. Y.), 456; Mc- award see Form 429, supra. Kinstry v. Solomons, 2 Johns. (N. Y.) • 57; 13 id. 27. 444 Abbott's Forms of Pleading , 19 , the defendant made and delivered to the plaintiff a bond of arbitration,^^ conditioned to abide the award of one M. N. as therein specified, of which bond a copy is hereto annexed, as a part of this complaint, and marked Exhibit A. [II. That on or aJDout the day of , [or, thereafter, and within the time hmited for making the award], by agreement of plaintiff and the defendant, the time for the making of the award was duly extended to the day of , 19 .] III. That the said M. N., on or about the day of ,19 , duly made and pubUshed his award in writing upon the matter submitted, and thereby awarded that the defendant should [here indicate briefly the provision which the defendant has disregarded]; of which award a copy is hereto annexed, as a part of this complaint, and marked Exhibit B. IV. That the plaintiff duly performed all the conditions of said bond on his part [and on or about the day of ,19- , gave notice of said award to the defendant, and tendered to him, etc., showing performance of any condi- tions, precedent or concurrent, on his part, contained in the award and demanded of him, etc.]. V. That the defendant has not [here allege breach, specify- ing the particular act or omission], to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 451. For Revoking the Arbitrator's Powers. ^^ I, II. [Allege submission and bond, as in preceding form.] ^* If the recitals in the bond are so sion was actually made a rule of court, meagre as not to disclose the circum- the plaintiff should assign the revoca- stances under which it was given, tion as a breach — not the non-per- allege them as though the action were formance of the award. Frets v. based on the submission, as in Form Frets, 1 Cow. (N. Y.) 335. This form 429. is further supported by Williams v. • '" Where defendant revoked the ar- Maden, 9 Wend. (N. Y.) 240. bitrator's powers, before the submis- The New York Code of Civil Pro- Bonds 445 III. That thereafter, and before the allegations and proofs of the parties were closed, and the matters in said submission contained were finally submitted to said arbitrator for his decision, the defendants, by writing under their hands and seals delivered to said M. N., revoked the powers of said arbitrator. IV. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. cedure (§§ 2383-2385) prescribes the not, however, otherwise limit the measure of damages, whether the right of action at common law for submission be made as prescribed in damages. Union Ins. Co. v. Central the statute, or otherwise. It does Trust Co., 157 N. Y. 633. CHAPTER XV COMPLAINTS IN ACTIONS UPON OFFICIAL BONDS AND UNDERTAKINGS ^ I. Oppiciai, bonds. page 452. On a bond in the surrogate's court; after accounting had 447 453. The same, where prior accounting is impossible or imprac- ticable ^9 464. By successor, against one surety (the other having been re- leased) on the bond of an executor, whose letters have been revoked 451 455. Against original surety, after substitution of new bond or undertaking, under N. Y. Code Civ. Pro., § 812 457 456. By successor, against sureties on bond of deceased represent- ative or guardian 457 457. On bond of trustee in bankruptcy 458 458. On receiver's bond; by his successor 459 459. By trustee in bankruptcy, against surety on bond of general assignee 462 460. Assignment of breach of the bond of a county treasurer in ac- tion by county 464 461. Assignment of breach in a sheriff's bond, for neglect to levy. . 464 462. The same, for neglect to sell after levy 465 463. The same, for neglect to return 466 464. Allegation of judgment for damages and costs against the sheriff 466 465. By later or second surety against prior surety on default of principal during term of earlier bond 466 II. Undertakings. 466. Short form, where the undertaking recites the facts 470 467. For security for costs 471 468. On undertaking given to stay execution on appeal to appellate division, from money judgment 472 469. On undertaking for costs of appeal to Court of Appeals 473 470. The same, to also stay execution meantime 474 471. On undertaking on appeal from decree of surrogate 475 'Voluntarily given bonds, which supported by consideration. See through some defect are not good as Carl v.' Meyer, 51 App. Div. 5, 64 statutory bonds, may nevertheless N. Y. Supp. 1077; see, also, note on be good as common-law bonds if this point to Form 466. 446 Official Bonds 447 PAGE 472. For costs and damages on obtaining an attachment 476 473. On an undertaking to discharge attachment 478 474. On undertaking to discharge vessel from attachment under N. Y. Lien Law 480 475. On an undertaking for costs and damages on obtaining order for an arrest . . . . ' 482 476. On undertaking for jail hmits 484 477. On undertaking to procure discharge from arrest 485 478. On undertaking to indemnify sheriff for levy under execution . . 487 479. On undertaking in an action to recover a chattel (replevin) . . 488 480. On an undertaking given in an action to recover a chattel, to secure the return of the property 490 481. On an undertaking given on obtaining an injunction 491 482. On a bail-bond given in criminal proceedings 493 483. On undertaking given to secure stay of proceedings 494 I. OFFICIAL BONDS ^ 452. On a Bond in the Surrogate's Court; after Accounting Had.3 I. That on or about the day of , 19 , the defendants [together with names of the adminis- trators] made and delivered to the surrogate of county their bond in writing, under their hands and seals, whereby they jointly and severally bound themselves to the People of the State of New York in the sum of 2 Where an official bond runs to the upon by any one concerned if in People, and special provision for its accord with such obvious intent, prosecution is not made, any person Close v. Farmers' Loan & Tr. Co., 195 injured by the principal's default N. Y. 92. may apply for leave to sue upon the All bonds and undertakings in New bond. N. Y. Code Civ. Pro., §§ 814, York must be joint and several in 1888. It has been held that a bond form, if executed by two or more running not to the People but to a persons (Code Civ. Pro., § 812). county may be similarly sued upon An action upon such a bond may be after leave obtained. Town of brought against the surviving sureties Ulysses v. Ingersoll, 182 N. Y. and the representatives of a deceased 369. surety. County of Erie v. Baltz, 125 While an official bond should App. Div. 144, 109 N. Y. Supp. 304. usually run to the people, it will be ^ Under N. Y, Code Civ. Pro., construed in accordance with the §2583 (formerly §2607). To be obvious intent of the parties, and brought by and in the name of the although running to the person who person in whose ■ favor the decree was primarily interested may be sued was made. 448 Abbott's Forms of Pleading dollars, with a condition that if said [administrators] should faithfully discharge the trust reposed in them as adminis- trators of all and singular the goods, chattels and credits of M. N., late of , in the State of , de- ceased, and should obey all lawful decrees and orders of the surrogate's court, touching the administration of the estate committed to them, then the obUgation was to be void, otherwise in full force ^ [or, otherwise according to the terms of the condition]. II. That after the making and delivery of said bond, and on the same date [or the day of , 19 ,] letters of administration upon said estate were duly issued and granted to said [administrators] by the said surrogate, and said [administrators] thereupon duly qualified as such. III. That more than one year after said letters of adminis- tration were issued^ and on or about the day of , X9 , said [administrators] duly presented to the said surrogate a petition for a judicial settlement of their account; that a citation thereon was duly issued by said surrogate addressed to the persons required by law to be cited in such a proceeding, including the defendants herein, and was duly served upon all said persons, and said defend- ants duly appeared therein.^ [Or, if a compulsory proceeding only was had:] III. That after the expiration of eighteen months from their qualification as aforesaid, the said administrators were required to render an account of their proceedings, by an order duly made on the day of , 19 , by the said surrogate, and in compUance therewith said administrators duly made and filed with said surrogate an account of their proceedings as such administrators;* that the defendants duly appeared by counsel in said proceeding.' * Under Code Civ. Pro., § 2591. v. Stoddard, 132 App. Div. 485, 116 ^ The action on the bond cannot be N. Y. Supp. 901. maintained upon the basis of a de^ « See next form for allegations cree made in a voluntary accounting Reusing a prior accounting, deci'ee, unless the defendant sureties were and unsatisfied execution thereon, parties to the proceeding. Cookman ' It was held in McMahon v. Smith, Official Bonds 449 IV. That thereafter such proceedings were had upon such accounting that the said surrogate duly adjudged and de- creed, by a decree duly made and entered on the day of , 19 , [set forth provision of decree relied upon in the action, as] that said administrators had in their hands, of the assets of the estate of said M. N., a balance of dollars, and that they should pay one-third of such balance, being dollars, to this plaintiff, the widow of said intestate, as and for her distributive share of the estate. V. That on or about the day of , 19 , a transcript of said decree was duly filed and said decree docketed ^ in the office of the clerk of the county of and an execution thereon was duly issued to the sheriff of said county of commanding him to satisfy the same out of the personal property of said [administrators], and if sufficient personal property could not be found, then out of the real property belonging to them in said county at the time of said docketing of said transcript; that said sheriff has returned said execution wholly unsatisfied [or, col- lected dollars upon said execution and returned the same unsatisfied as to the sum of dollars]; that at the time of the issuance of said execution, the said [ad- ministrators] were, and now are, residents of said county of Wherefore [etc., demand of judgment]. 453. The Same, Where Prior Accounting is Impossible or Impracticable. [Sustained in Kurz v. Hess, 86 App. Div. 529, 83 N. Y. Supp. 773.] '" 24 App. Div. 25, 49 N. Y. Supp. 93, therefore, it seems proper to aver the that it is not necessary to show that docketing of the decree which is a the defendant sureties were parties prerequisite to the issuance of the to a compvlsory accounting; there execution, was, however, a vigorous dissent. ' This is a necessary averment * It is necessary to show the return under N. Y. Code Civ. Pro., § 2583. of an execution by the sheriff; and, '» The form is further supported by 450 Abbott's Foems of Pleading [Substitute for paragraphs III, IV, V and VI of preceding form]: III. That said [administrator] did not faithfully discharge the trust reposed in him as such administrator, but on the contrary after having received moneys and property of said estate amounting in value to the sum of at least dollars, appropriated said moneys and property to his own use. IV. That on or about the day of , 19 , said [administrator] became wholly insolvent, and absconded and fled from the State of New York, and his whereabouts have since remained and now are wholly unknown to plain- tiff; that plaintiff has attempted to obtam a judicial settle- ment of the account of said as such administrator, and has attempted to ascertain the whereabouts of said [administrator] through diUgent effort in that behalf in order to serve upon him due process of the said surrogate's court, but plaintiff has been imable, and will be unable, and that it is impossible for him, to obtain an account as such admin- istrator from the said , and compel him to judicially settle his account as such administrator; that said [adminis- trator] is wholly insolvent, and that plaintiff is wholly without means of obtaining any redress from the said [administra- Duck V. McGrath, 160 App. Div. 482, Where the administrator removes 145 N. Y. Supp. 1033. to another State, and dies there in- The authorities are uniform that, as solvent, the prior accounting is a general rule an accounting before excused. Otto v. Van Riper, supra; some proper court and the establish- Parker v. Domioick, 105 App. Div. ing judicially of the principal's de- 440, 94 N. Y. Supp. 249. fault is necessary before an action A judgment at law against the will lie on a bond of this character; administrator, based upon substi- but if special circumstances exist tuted service, is ineffective of itself from which it appears that such to excuse the surrogate's accounting, remedy is impractical, or would be Scharmann v. Schoell, 38 App. Div. fruitless, the prior accounting is 528, 56 N. Y. Supp. 498. excused in equity, and an action will The defaulting representative is a lie against the sureties. See cases proper but not a necessary party, supra; Haight v. Brisbia, 100 N. Y. under these facts. Otto v. Van 219; Long v. Long, 142 id. 545; Otto Riper, supra. V. Van Riper, 164 id. 536. Official Bonds 451 tor] for the conversion of said moneys and property of said estate. V. [Show that plaintiff is entitled to a distributive share of said estate, as:] That said [decedent] left him surviving the plaintiff, his only child and lineal descendant, and that he left no widow him sm-viving. Wherefore plaintiff demands judgment that an account be taken of the proceedings of said [administrator] as such administrator, and his UabiUty to said estate be adjudged and decreed, and that plaintiff have judgment against the defendants for the amoimt thereof, and for such other and further relief as may be just." 454. By Successor, against one Surety (the Other Having been Released), on the Bond of an Executor, Whose Letters have been Revoked." [Complaint adapted from Hood v. Hayward, 124 N. Y. 1; aff'g 48 Hun, 330.] " I. That on or about the day of , 19 , at , one A. H., then being a resident of the county of , in the State of , departed this Ufe, leaving a last will and testament, of which a copy is hereto annexed marked A and made a part of this complaint. II. That the said will was duly admitted to probate by " The action is equitable and such a settlement. See Dunne v. triable at Special Term. Parker v. Am. Surety Co., 43 App. Div. 91, Dominick, supra. 59 N. Y. Supp. 429; also cases cited " N. Y. Code Civ. Pro., §§ 2584-85, in notes to preceding form, formerly §§ 2608-9. Leave of court need not be ob- " Where it was held that plaintiff, tained by such successor. Dunne v. as sole remaining executor, was the Am. Surety Co., supra. "successor" of the removed executor The persons interested in said es- within the statute (§ 2584), and that tate as distributees are not necessary an action on the bond would lie parties to the action. Dunne v. Am. without the return of an execution Surety Co., supra. unsatisfied. The precedent as given herein is A successor is excused from ob- verbose, but so framed that an ad- taining a judicial settlement of the mission of many of the allegations accounts of the prior representative, might be anticipated with resultant whenever it is impossible "to obtain narrowing of the issues. 452 Abbott's Forms of Pleading the surrogate of the county of , on the day of , 19 , and letters testamentary thereon wiere afterwards, and on or about ,19 , duly issued by said surrogate to F. H., and to the plaintiff, M. H., the executor and executrix named in said will, who thereafter duly qualified as said executor and executrix. III. That said F. H. was then and is now a non-resident of this State, and that previous to the issuing of said letters to the said F. H., he, together with the defendant J. N. H., and also one D. M., duly made and executed a certain bond or obligation, a copy whereof is hereunto annexed marked B, and made a part of this complaint. IV. That said bond, after being duly acknowledged, was thereupon filed in the office of the said surrogate, and letters testamentary were thereafter issued to said F. H., pursuant to the statute in such case made and provided, and he thereupon qualified as such executor. V. That said A. H. died seized and possessed of a large real and personal estate, amounting in value, as plaintiff is in- formed and believes, to the sum of dollars, or there- abouts. VI. That said plaintiff alleges that the condition of the said bond, in or about the month of , 19 , was broken by said F. H., and that the penalty therefor became thereupon due and payable according to the condition and tenor thereof. VII. That the said F. H. did not faithfully execute the trust reposed in him as such executor, and did not obey the orders of the surrogate of county touching the ad- ministration of the estate committed to him, [and said de- fendant J. N. H., on or about , 19 , had actual notice thereof]. VIII. That the said F. H., since , 19 , received the sum of dollars, and upwards, of assets of the said estate, which have not been duly and properly admin- istered by him, and which have, in consequence thereof, been lost to the estate. , Official Bonds 453 IX. That in or about the month of , 19 , the said F. H. presented to the surrogate of county and filed with him art account of the proceedings of the exec- utor and executrix of the said estate, and a statement of their accounts; that in and by said accounts it appeared that the property of the said estate then remaining consisted principally of certain moneys, amounting to the sum of dollars or thereabouts, then invested upon bond and mortgage. X. That thereafter, on the day of , 19 , an order or decree was made by said surrogate, whereby it was ordered that the said executor should invest, pursuant to the powers and declarations in the said will, the sum of dollars. • XI. That the said sum represented principally the amounts secured to be paid by the aforesaid bonds and mortgages; that the said bonds and mortgages, amounting in the aggregate to the sum of dollars, were after- wards collected and realized by said F. H. XII; That said F. H. neglected and refused to comply with the aforesaid order and decree of said surrogate, and did not invest the moneys of said estate so received, as thereby directed, and as directed by said will; that upon col- lecting and realizing said assets it became his duty, imposed upon him by said order and decree and said will, to invest the same upon bond and mortgage, and keep the same in- vested upon bond and mortgage on property situate in this State, which he failed and neglected to do. XIII. That since the said day of , 19 , large sums of money belonging to said estate have been misapplied by said F. H. and invested in property not au- thorized by law, or said wiU, and that large sums of money of said estate have been lost and wasted by said F. H. XIV. That in or about the year 19 , without the knowl- edge or consent of this plaintiff, the said H. invested part of the assets of said estate, to wit, the sum of dollars, in the purchase of certain real estate situate in , 464 Abbott's Forms of Pleading which was subject to a mortgage to secure the payment of the sum of dollars. XV. That some time in the year 19' , the said premises were sold under foreclosure of said mortgage and did not reaUze sufficient to pay said mortgage and interest, whereby and in consequence the moneys of said estate so invested therein as aforesaid were lost to said estate. XVI. And the plaintiff fiu-ther alleges on information and belief that in or about the month of , 19 , a certain proceeding was brought by B. H., one of the persons inter- ested in said estate, in the said Smrogate's Court of county against the said F. H., for a revocation of letters testamentary issued to him by the surrogate of said county, as an executor under the will of A. H., deceased; that in and by the petition of the said B. H. various acts of misconduct were alleged to have been conomitted by said F. H., being substantially the same acts of misconduct above set forth. XVII. That a citation was duly issued by said surrogate requiring said F. H. to show cause at at the Siuto- gate's Court on the day of , 19 , why the letters testamentary theretofore issued to him by said surro- gate as executor of the said will should not be revoked, and that the said F. H. duly appeared upon the return of said citation and filed his answer to said petition. XVIII. That thereafter and after hearing the allegations and proofs of the respective parties, the. said surrogate duly found and decided that the said F. H. had since reafized and collected certain assets and property of said estate amounting to dollars; that since the said , large sums of money belonging to said estate have been misapplied by said F. H. in the purchase of real estate situate in the State of , contrary to the ex- press provisions of said will, to the amount of dollars, which by reason thereof have been lost to said estate; that since he had invested large smns of money of the estate in securities and property not author- ized by law or the will of said deceased; that he had not duly Official Bonds 455 and properly administered the said estate, and that large sums of money belonging to said estate had not been prop- erly or duly reaUzed by him; that he had not faithfully per- formed the duties of the trust committed to his care; that large sums of money of said estate had been lost and wasted by him, and that in consequence of the acts aforesaid the said estate had suffered loss and damage in the sum of dollars. XIX. That the said surrogate thereupon made his order or decree, which bears date ,19 , wherein it was decreed that the letters testamentary theretofore issued to said F. H. by the surrogate of county and bearing date , 19 , were thereby revoked. XX. That thereafter and in the month of , 19 , the plaintiff herein presented a petition to the said surro- gate which, among other things, alleged the making of the last-mentioned decree; that she was the remaining execu- trix of said will; that said F. H. had, since the day of , 19 , received and collected certain assets of the said estate amounting to the sum of dollars or thereabouts, and .praying among other things tljat said H. accoimt for and pay over to and deliver to said plaintiff all moneys and property of said estate, and that he be cited to show cause why he should not render and settle his account; that a citation was thereupon duly issued to said H. accord- ingly, and he duly appeared and filed his objections to said petition; that certain proceedings were duly had thereupon, and said H. presented and filed with said surrogate an ac- count of his proceedings and his disposition of the assets of the said estate; that thereafter the said surrogate duly made his certain order or decree whereby certain payments and charges and investments [including the said payment or investment of the sum of dollars on the purchase of premises in the city of , above alleged] were dis- allowed by said surrogate, which charges amounted in all to the sum of dollars, which sum the said H., by decree aforesaid, was duly directed to pay to this plaintiff, 456 Abbott's Forms of Pleading but which the said H. has failed and refused to do after being duly demanded before the commencement of this action; that said H. is wholly insolvent. XXr. That no successor has been appointed in the place and stead of the said F. H,, and that this plaintiiif is now tlie sole remaining executor of the estate of A. H., deceased. XXII. That by the aforesaid acts of misconduct done and committed by said H., the said estate has been seriously aggrieved and injured and has suffered damage thereby in the sum of dollars; that plaintiff has been ag- grieved by the acts of misconduct committed by the said H. XXIII. That pursuant to the statute in such case made and provided, the said surrogate of county, on the application of this plaintiff, made his order or decree bearing date , whereby he granted leave to this plaintiff to bring an action on the bond above mentioned, andjwhich said order was duly filed and entered in the office of the said surrogate. " XXIV. That this action is prosecuted by this plaintiff as the executrix of the will of the said A. H., deceased, as well as in her own behalf and in behalf of all persons inter- ested or claiming to 'be interested in said estate, pursuant to the statute in such case made and provided-. XXV. That D. M., named in said bond, has been re- leased from any liability on said bond to the extent of one- half the penalty thereof, to wit, the sum of dollars, saving and reserving, however, and excepting all cause or causes of action against the other parties thereto and any and all liability thereunder, i' XXVI. [Allege issuance of execution on decree, and its return unsatisfied, as in paragraph V of Form 4-52.] " Wherefore, the plaintiff prays judgment for the sum of dollars, one-half the penalty of said bond, besides the costs of this action. '■* Leave to prosecute is not esseii- not operate to discharge the defend- tial. See Dunne v. Am. Surety Co., ant surety, 43 App. Div. 91, 59 N. Y. Supp. 429. " Probably this is unnecessary. '^ It was held that this release did See VanZandt v. Grant, 175 N. Y. 150. Official Bonds 457 455. Against Original Surety after Substitution of New Bond or Undertaking, under N. Y. Code Civ. Pro., § 812. '^ [After alleging the giving of the bond or undertaking as in Form 452, or other appropriate form:] That thereafter and on or about the day of , 19 , the defendant applied to said court to be relieved from liability as surety for subsequent acts of said [principal], 'as provided in § 812 of the Code of Civil Procedure. That thereafter such proceedings were had upon said application that on the day of , 19 , said [principal] filed a new bond in said court. [Allege default of principal, accounting, decree fixing lia- bility and execution unsatisfied (or facts excusing these pro- ceedings) substantially as in other Forms.] That such wrongful acts of said [principal] were done prior to the said application of said defendant [surety] to be relieved from liability. ^^ 456. By Successor, Against Sureties on Bond of Deceased Representative or Guardian." [Under N. Y. Code Civ. Pro., § 2584.] I. and II. [Allege giving of bond, and qualification of de- ceased representative or guardian, as in Form 4-52.] III. That thereafter and on or about the day of ) 19 , the said [deceased representative] died at , and thereafter and on or about the day " Undoubtedly plaintiff may ignore " Adapted- from complaint in Van these proceedings, and serve a com- Zandt v. Grant, 175 N. Y. 150, where plaint in the usual form, leaving to it was held that it was not necessary the surety the pleading of his dis- that an execution be issued upon the charge from further liability by way surrogate's decree and returned un- of defense. It may tend to narrow satisfied; it was also held that where the issues to plead in the above way, the decree directed payment of the however. amount due to be made to plaintiff ^ This is essential in order to hold as general guardian, it was not nec- the surety. Siebert v. Milbank, 95 essary to have himself appointed App. Div. 666, 88 N. Y. Supp. 993, guardian ad litem, but that he might aff'd 180 N. Y. 535. sue as such general guardian. 458 Abbott's Forms of Pleading of , 19 , plaintiff was duly appointed [general guardian of said infant— or, othervxise] by an order duly made by- said surrogate dated on said day, and that there- after plaintiff duly qualified as such (general guardian) and continues to act as such.^" IV. [Allege appointment of the representative of the deceased guardian or representative, as in Forms 63 or 64.] V. That thereafter, in proceedings duly had under § 2725 of the Code of Civil Procedure, a -decree was duly granted and entered in the surrogate's court of county, whereby it was duly adjudged that the estate of said [de- ceased representative or guardian] was indebted to said [infant] in the sum of dollars for moneys theretofore re- ceived by said [deceased] and not disbursed by him, and said decree further duly directed that [the representative] should pay said sum to plaintiff, as such [general guardian]. VI. That on or about the day of , 19 , a certified copy of said decree was duly served upon [the representative of the deceased representative or guardian], and payment of said sum of dollars duly demanded, but no part has been paid. Wherefore [etc., demand of judgment]. 457. On Bond of Trustee in Bankruptcy. ^^ I. That heretofore, and on or about the day of ,19 , in the District Court of the United States for the District of , one M. N, was duly adjudicated a bankrupt, and one 0. P. was thereupon duly elected trustee in bankruptcy of the estate of said bankrupt. II. That in order to qualify as such trustee said 0. P. ™ The defendant surety cannot States, to the use of the person in- attack the sufficiency of the plain- jured, and that it was improperly tiff's bond given upon his qualifica- brought by the plaintiff as successor tion. Van Zandt v. Grant, supra. trustee. It was also held that the ^' Adapted from complaint in Alex- defaulting trustee is not a necessary, ander v. Union Surety, etc., Co., 89 though a proper party, under the App. Div. 3, 85 N. Y. Supp. 282; facts disclosed, and that the state the court held that the action must courts have jurisdiction of such an be brought in the name of the United action upon the trustee's bond. Official Bonds 459 was required to give a bond, in the amount and upon the condition as hereinafter set forth. III. That thereafter, and on or about the day of , 19 , and for the purpose of enabling said O. P. to qualify as such trustee, the defendant duly made and filed in said District Court its bond, in the penal sum of dollars, to the United States of America, the con- dition whereof was that said 0. P., as such trustee, would obey all orders which the court might make in relation to the trust estate, faithfully account for all the goods, assets and effects of said bankrupt estate which might come into his hands and possession, and in all respects faithfully per- form all his official duties [or otherwise according to condition]. IV. That the condition of said bond has been violated; that said 0. P. has converted to his own use property be- longing to the estate of said bankrupt of the value of dollars, and has failed and neglected to account for the same although duly directed by said District Court so to do. V. That said 0. P. has absconded and fled from the State of New York, and is now a fugitive from justice, and by an order duly made by said District Court, dated on the day of J 19 , said O. P. was removed as such trus- tee, and plaintiff was duly appointed trustee in his place and stead; that plaintiff thereafter duly qualified as such trustee, and is now acting as such. Wherefore, plaintiff demands judgment that an ac- count be had of the proceedings of said 0. P., as trustee of the estate of said bankrupt, and that whatever sum said O. P. as such trustee would have been liable to pay it be herein adjudged that defendant shall pay to plaintiff, not exceeding said penal sum of said bond, and that plaintiff have such other and further relief as may be just. 458. On Receiver's Bond; by his Successor.^^ I. That an in action then pending in the court of , '' From Thompson v. MacGregor, 9 ever, it was held that as the terms of Abb. N. C. (N. Y.) 138, where, how- the bond were for fidelity subsequent 460 Abbott's Forms of Pleading for the county of , wherein one C. B. R. was plain- tiff, and F. A. D. was defendant, an order was duly made by said court, on or about the day of , 19 , appointing the said C. B. R. receiver of all the debts, property and equitable interests, rights and things in action, of the late firm of D. & R., composed of said D. and said R. II. That under said order and before entering upon his trust, the said C. B. R. was directed to file with the clerk of said court a bond in the sum of dollars, with two sufficient sureties to be approved by one of the justices of said court, conditioned for the faithful discharge by said R. of the duties of his trust, as receiver, as aforesaid. III. That pursuant to said order and in intended com- pliance therewith, the defendant, with said R., [and one H. H. G. who is now dead,] executed their certain bond under their respective hands and seals, bearing date the day of ) 19 , and on the same day caused the same to be duly filed in the office of the clerk of said court, after having been duly approved by oge of the jus- tices thereof. That in and by said bond said defendant, and said R. [and G.] bound themselves, their heirs, executors and administrators jointly and severally unto the people of the State of New York, in the sum of dollars; that the condition of said bond was, that if the said R. should account for all money that may come into his hands as such to its date, and did not expressly bind 83 N. Y. Supp. 780; French v. for obedience to orders of the court, Dauchy, 134 N. Y. 543. If sued upon the surety was not liable merely on as a common-law obligation, it will be proof of disobedience of an order necessary to allege and prove the made without notice to the surety: principal's default. See Stratton v. but there must be proof competent City Trust, etc., Co., supra; ano. against the surety of unfaithfulness dec, 69 App. Div. 322, 74 N. Y. Supp. after the date of the bond. 670. Undoubtedly the same excep- An accounting is necessary upon a tion exists, where the principal has receiver's bond, viewed as a statutory absconded and rendered an account- obligation, and the sureties must have ing impossible, which permits an been given notice. Stratton v. City action in equity without an account- Trust, etc., Co., 86 App. Div. 551, ing. See notes to Form 453. Official Bonds 461 receiver, and should faithfully discharge the duties of his said trust, as such receiver, in said action, then said bond should be void, otherwise it should be in full force and effect. That thereupon said R. entered upon the discharge of his duties as such receiver, and continued to act as such until his removal as hereinafter alleged. IV. That in and by an order duly made in said action on or about the day of , 19 , said R. was removed from his position as .sa,id receiver, and ordered to pass his accounts, and this plaintiff was duly appointed in his place and stead as substituted receiver of all the prop- erty and effects of the said firm of D. & R., with the powers usually vested in receivers in such pases on filing the bond required by said order, duly approved by one of ,the justices of said court. That on or about the day of , 19 , this plaintiff duly filed the bond required by said order, duly approved by one of the justices of said court, and duly qualified as such receiver and continues to be and act as such. V. That thereafter, and upon due notice to defendant, an accounting by said R. of his proceedings as said receiver, was had pursuant to the order last aforesaid, and thereafter in such proceeding a final order was, on or about the day of , 19 , duly granted by said court in said proceeding, adjudging that there was a balance then in the hands of said R., of the funds that he had received as said receiver amounting to dollars, with interest thereon, from , 19 , and directing said R. to forthwith pay said sum to this plaintiff, as substituted receiver as aforesaid. That on or about the day of , 19 , plaintiff duly demanded of said R. payment of said sum, and that said R. lias neglected and refused to pay the same or any part thereof, and that the said sum remains wholly unpaid. VI. That an order was duly made by the [Supreme] court on or about the day of , 19 , granting plaintijBf leave to maintain this action on the said bond of 462 Abbott's Forms of Pleading said defendant herein for the recovery- of said sum of dollars.^' Whebefore [etc., demand of judgment]. 459. By Trustee in Bankruptcy against Surety on Bond of General Assignee for Benefit of Creditors. [Sustained in Cohen v. American Surety Co., 192 N. Y. 227.] 24 I. That on or about the day of , 19 , at , one M. N. duly made an assignment for the benefit of his creditors to one O. P.; that said-0. P. duly accepted said trust, and that said assignment was on said day duly recorded in the office of the clerk of the county of II. That thereafter, and on or about the day of ,19 , by an order duly made by the supreme court in said county, the amount of said assignee's bond was, pursuant to the statute, duly fixed at the sum of dollars. III. That thereafter and on or about the day of , 19 , and in compliance with said order, said O. P. as principal, and the defendant, as surety, duly exe- cuted and delivered their certain bond in said sum of dollars, conditioned that the said O. P. shall faithfully execute and discharge the duties of such assignee and duly account for all moneys received by him as such assignee, in which event said bond was to be void, otherwise to remain in full force and virtue [or, a copy whereof is hereunto annexed marked A and made a part of this complaint]. IV. That thereafter said O. P. received and took into his possession a large amount of property and assets belong- ing to said M. N., amounting in value to more than "See N. y. Code Civ. Pro., equitable counterclaim interposed by 5 814. ■ defendant, in 129 App. Div. 166, 113 " See a further decision on an N. Y. Supp. 375. Official Sonds 463 dollars, and that no accounting with respect thereto has ever been had except as hereinafter alleged. V. That on or about the day of , 19 , in the District Court of the United States for the District of , said M. N. was, by an order duly made on said day, duly adjudged a bankrupt, and thereafter plain- tiff was duly appointed trustee in bankruptcy of the estate of said M. N., and duly qualified and is now acting as such trustee. VI. That on the day of , 19 , said 0. P. duly filed in said District Court a petition praying that his account as such assignee be stated and allowed, and that such proceedings were thereafter duly had therein that an order was duly made by said court on the day of , 19 , requiring and directing said 0. P., as such assignee, to pay to plaintiff, as trustee of said bank- rupt, the sum of dollars. VII. That the defendant was a party to such proceeding by said assignee, and participated in and had notice and knowledge of such accounting. VIII. That said 0. P." did not pay said amount, and thereafter plaintiff duly commenced an action against said O. P. to recover said amount in the court; that said 0. P. duly appeared therein, and such proceedings were thereafter had that a judgment was duly given in said action in favor of plaintiff, as trustee aforesaid, against said O. P., for the sum of dollars. IX. That execution upon said judgment has been here- tofore duly issued, but has been returned wholly unsatisfied, and said judgment remains wholly unpaid; that payment of said judgment has been demanded of defendant, but no part has been paid. X. That on the day of , 19 , an order was duly granted in said [supreme] court authorizing plain- tiff to maintain this action upon said bond against the de- fendant. Whekefore [etc., demand for judgment]. 464 Abbott's Fokms of Pleading 460. Assignment of Breach ^'^ of the Bond of a County Treasurer, in Action by County. ^^ That said M. N. [county treasurer], between the day of , 19 , and the day of , 19 , received various sums of money as such county treas- urer, amounting to about the sum of dollars [being a part of the tax raised in said county for the year ], and that he fraudulently, and in breach of his trust, con- verted and appropriated to his own use said sum. For a further breach the plaintiff alleges that said treas- urer, on or about the day of , 19 , ac- counted with the plaintiff concerning moneys [raised in said county for defraying the pubUc and necessary charges thereof] which had theretofore come to his hands as such treasurer, and on such accounting was found to have and did have in» his hands, as treasm-er aforesaid, the sum of dollars, which was payable forthwith to plaintiff. That on or about the day of , 19 , plaintiff duly demanded of said M. N. that he pay said sums to it, but he refused -so to do, and no part thereof has been paid. 461. Assignment of Breach in a Sheriff's Bond, for Neglect to Levy. That on or about the day of , 19 , in an action brought by him against one M. N., plaintiff ^' ^* It is sufficient as against a de- Allegany v. Van Campen, 3 Wend, murrer to allege a breach by neg- (N. Y.) 48. See Code Civ. Pro. ativing the condition of the bond (§ 1887), as to requisites in action by when that necessarily shows a breach; individual on a like bond. but the better form is to affirmatively A town entitled to the school allege the facts from which a breach moneys, and the supervisor to whom appears. Town of Hadley v. Garner, the money was payable by the county 116 App. Div. 68, 101 N. Y. Supp. treasurer, having obtained leave so 777. to do, may sue upon the county ^« Where a county treasurer has treasurer's bond running to the embezzled and converted money of county, under the general policy of the county, it is not necessary to § 1888 of the code. Town of Ulysses make a request or demand before a v. Ingersoll, 182 N. Y. 369. suit on his bond. Supervisors of 2' The action is brought in the name Official Bonds 465 recovered judgment, duly given by the court of , against said M. N., for the sum of dollars [which judgment was on, etc., duly docketed in the office of the clerk of the county of, etc.]. That on or about the day of , 19 , an execution in favor of the plaintiff against the property of said M. N. was duly issued on said judgment, and delivered to the said [defendant] sheriff, of which the following is a copy: [or, state its requirements]. That said [defendant] sheriff did not properly execute said process; that there was then within said county real and personal property belonging to said M. N.,^^ upon which he might have levied and from and out of which he could have satisfied said judgment [and of which he had notice ^'], he neglected and refused so to do and returned said execu- tion wholly imsatisfied, whereby plaintiff lost his said debt. That on or about the day of , 19 , by an order duly made and entered in this court,'" permission was granted to this plaintiff to maintain an action on the aforesaid bond. 462. The Same, for Neglect to Sell after Levy." [Allege judgment and execution, as in preceding form.] That the said sheriff by virtue thereof, on or about the day of , 19 , levied on the goods of said M. N., of the value of dollars; but he neglected to of the person injured by the default, ^ The allegation of notice, though and may be maintained as if such per- usual, seems unnecessary. Tomlinson son were the obligee named in the v. Rowe, Hill & D. Supp. (N. Y.) bond. N. Y. Code Civ. Pro., § 1881. 410. ^ In an action against sureties in a '" Leave to prosecute must be ob- constable's bond, an allegation that tained, and the action must be the constable did not levy the brought in the court granting the amount, nor take the body, is not leave. N. Y. Code Civ. Pro., §§ 1880- sufficierit without any averment that 81. the defendant had property which " This form is supported by People might have been levied upon, or that v. Ten Eyck, 13 Wend. (N. Y.) 448. his body could have been found. It is appropriate where the writ was Lawton v. Erwin, 9 Wend. (N. Y.) delivered to a deputy, as well as where 233. it was delivered to the sheriff. 466 Abbott's Forms of Pleading advertise and sell the goods so levied on by him as aforesaid, and no part of the moneys directed to be collected on the plaintiff's said execution has been received by the plaintiff. [Leave to sue as in preceding form.] 463. The Same, for Neglect to Return. [Allege judgment and execution, as in Form 461, continuing:] who, by virtue thereof, on or about the day of , 19 , levied on the goods of said M. N., of the value of dollars; but, although more than sixty days elapsed after its deUvery to him and before this action, said sheriff wholly neglected and failed to make retm-n of said execution, and no part of the moneys directed to be collected thereby has been received by the plaintiff. [Leave to sue as in Form 461 .] 464. Allegation of Judgment for Damages and Costs against the Sheriff. That thereafter, and on and about the day of ,19 , in an action brought by the plaintiff in the Coiu-t, he recovered a judgment duly given against the said sheriff for the sum of dollars, for the dam- ages which the plaintiff had sustained by the neglect of the sheriff to execute [or, return] said process and dollars costs of his said action, and no part thereof has been paid to the plaintiff. 465. By Later or Second Surety against Prior Surety on Default of Principal During the Term of the Earlier Bond. [Sustained in Tawger v. Am. Surety Co., 212 N. Y. 292, aff'g 156 App. Div. 504, 141 N. Y. Supp. 491.] ^^ I. [Allege circumstances of giving, and the character of the first bond, as:] That on or about the day of , 19 , one M. N. was elected supervisor of the town of '' Held that under the facts alleged an action to enforce an equitable division of the liability would lie. Official Bonds 467 , , for the term of one year, and until his successor should be elected and qualified; that under the charter of said town the supervisor was ex officio the treasurer, and required to give a bond, conditioned that he will faith- fully account for all moneys that may come into his hands; that on the day of , 19 , M. N., as princi- pal, and the defendant Surety Company, as surety, duly executed and delivered to said town a bond in the sum of dollars upon the condition that the said M. N. should faithfully accoimt for all moneys that might come into his hands as such supervisor, and pay over the same pur- suant to the provisions of law or the order or resolution of the board of trustees of said town, and should faithfully perform the duties of his office to the best of his skill and abilities. II. {Allege facts showing a liability under first bond, as:] That between the day of , 19 , and the day of , 19 , M. N., as such treasurer, deposited in a private banking institution called the Bank, dollars, and during said period drew out only the sum of dollars. That upon the said day of , 19 , he had on deposit in the account in said bank a balance of funds of said town of amount- ing to dollars; that on said day, and for several months prior thereto, the said private banking institution operated as the Bank, and one 0. P., who was the sole owner and proprietor thereof, were hopelessly insolvent. III. [Allege circumstances of giving the later bond, as:] That on the day of , 19 , said M. N. wa,s again elected supervisor for the term of one year and until his successor should be elected and should have qualified; that on the said day of ,19 , said M. N., as principal, and the plaintiff, as surety, executed a bond similar in all respects to the one heretofore referred to, given by the defendant Company for the preceding year. IV. That the said bond given by the plaintiff was not given nor accepted as a compromise with the town of the claim against the defendant on its bond, and that said bond of the 468 Abbott's Forms of Pleading defendant was not surrendered-up or canceled, and remained in full force and effect. V. That at the time of the making and delivery of the plaintiff's bond neither said company nor any of its officers knew that the Bank and said O. P. were insolvent, or that the funds belonging to the said town had been de- posited in the said private bank by M. N. VI. That on the day of , 19 , upon the said M. N. qualifying as supervisor for the year commencing , 19 , [the term covered by plaintiff's bond] he did not then nor thereafter withdraw from the said bank any of the balance, amounting to the sum of dollars, which he had on deposit at the conclusion of his previous term of office as supervisor; nor could the said balance have been withdrawn on account of the insolvency of said private banking institution. VII. That said M. N., for the term ending , 19 , [the term of the first bond] did not and could not, on accoimt of the aforesaid insolvency of the said private banking in- stitution, pay over to himself, as supervisor and ex-offido treasurer for the year commencing ,19 , the said balance or any part thereof. VIII. That said M. N., from , 19 , to 19 , deposited the sum of dollars in said bank, and drew out the sum of dollars, and that on the day of ,.19 , he had, as treasurer of the said town, on deposit in said bank a balance of money be- longing to the town of the sum of dollars, which included the balance of dollars which he had on deposit on the ^ day of , 19 , [the end of the first term] as hereinbefore set forth. IX. That on or about , 19 , proceedings in bankruptcy were taken against said 0. P., operating under the name of Bank, so that he was thereafter ad- judicated a bankrupt, and by reason of his insolvency and bankruptcy none of the said balance was ever paid over or returned to M. N. or the said town, and that the said M. N. Official Bonds 469 failed and neglected to account for said dollars to the town and failed to pay over said sum to his successor as supervisor as required by law. X. That as a result of such failure the said town prose- cuted an action against M. N. and the plaintiff, as surety, for said sum of money, including the sum of dollars which M. N. had on deposit at the conclusion of his first term of office; that a judgment was rendered in favor of the town, which, on appeal to the appellate court and the Supreme Court of , was affirmed; that as a result of said judgment, the plaintiff paid to the said town of the full sum of dollars, no part of which has been returned except the sum of dollars paid by the trustee in bankruptcy of 0. P. XI. That on account of the payment of the said sum of dollars by the plaintiff to the said town, the said town, before the commencement of this action, duly as- signed the said bond executed by defendant and said M. N., to plaintiff, together with all claims or causes of action arising thereunder against defendant. XII. That plaintiff has demanded of defendant payment to it of the sum of dollars but no part has been paid. Wheeefore, etc. [in the precedent judgment was asked that defendant be adjudged to contribute a sum named — which was the sum the official had deposited prior to the second bond — or such proportionate ratable share as the court might direct]. 470 Abbott's Forms of Pleading n. UNDERTAKINGS '« 466. Short Form, where the Undertaking Recites the Facts.'^ I. That on or about the day of > 19 , at , the defendants made an undertaking, a copy of which is hereto annexed, marked "A" and made a part of this complaint. II. That thereafter, and on or about ,19 , judgment was duly recovered in the action therein mentioned [which was duly given by, etc.] against the plaintiff [or, de- ^' An action on a statutory under- taking is an action on contract. Bien v. Freund, 26 App. Div. 202, ■ 49 N. Y. Supp. 971. The giving of the undertaking is followed by the acquiring of some right by the one giving it, or the staying of some right belonging to the adversary. But where an under- taking is given in a form, or under circumstances not complying with any statutory permission or require- ment, in order that it may be en- forced as a contract, a consideration must be shown, e. g., the adversary must in reliance upon it have ab- stained from some remedy or for- borne the exercise of some right. See Carter v. Hodge, 150 N. Y. 532; Mossein v. Empire State Surety Co., 97 App. Div. 230, 89 N. Y. Supp. 843 (later decisions in 112 App. Div. 69 and 117 id. 782); Sklar, etc., Co. v. Owen, 177 App. Div. 796, 165 N. Y. Supp. 1.3. Where it appears that the instru- ment was given in pursuance of a statute requirement, in a form pre- scribed thereby, and in a case within the statute, those facts constitute a sufficient consideration to support it, though it be without seal, and no further averment of consideration is necessary. Slack v. Heath, 4 E. D. Smith (N. Y.), 95, 1 Abb. Pr. 331. A declaration upon a statutory security — e. g., a replevin bond — need not aver that it was taken in pursuance of the statute. It is enough that the instrument set forth is in accordance with the statute. Shaw V. Tobias, 3 N. Y. 188. An undertaking on appeal running to an executor is properly sued upon by the executor in his individual capacity. Morris v. Hunken, 40 App. Div. 129, 57 N. Y. Supp. 712. '* This form is supported by Morange v. Mudge, 6 Abb. Pr. (N. Y.) 243. The liability is several as well as joint (under N. Y. Code Civ. Pro., § 812), and the plaintiff may sue one or both sureties; he may also sue the surviving surety and the represent- atives of the deceased surety in the same action. County of Erie v. Baltz, 125 App. Div. 144, 109 N. Y. Supp. 304. It is not 3, defense that the imder- taking was not "joint and several in form" as required by statute; it not being shown that the principal did not receive the full benefit obtainable ' by statute upon giving an under- taking. Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629. Undertakings 471 fendant] therein, for the sum of [or otherwise, ac- cording to the case], no part whereof has been paid. III. [Where issuance and return of execution is necessary, it may be alleged thu^:] That on or about the day of ,19 , [a transcript of said judgment was duly filed in the office of the clerk of the county of ; and on the same day], an execution thereon against the property of was duly issued to the sheriff of said county, which has been duly returned wholly unsatisfied [or, un- satisfied as to the sum of, etc.].^^ IV. [7/ demand is necessary by the terms of the undertaking, — or if notice must be served on appellant's attorney and the defendants, under N. Y. Code Civ. Pro., § 1309 — aver it as in the following forms.] Wherefore [etc., demand of judgment]. 467. For Security for Costs.^^ I. That heretofore one M. N. commenced an action in this court [or, in the court], against the plaintiff, wherein such proceedings were duly had, that, on or about the day of , 19 , the defendants made and caused to be duly filed with the clerk of said court, an undertaking whereby they jointly and severally under- took that they would pay, upon demand, to plaintiff [the defendant in said action] all costs that might be awarded to him in said action not exceeding the sum of dollars. II. That such proceedings were thereafter had in .said action, that this plaintiff, on the day of , 19 , duly recovered judgment therein against the said M. N. awarding to plaintiff the sum of dollars costs. III. That on or about the day of , 19 , plaintiff duly demanded payment of the said sum of ^^ As to the effect of the word ployed, it is the proper plaintiff to "duly" see general note on page 23. sue upon an undertaking for costs. " Where costs awarded to a public The Mayor, etc., of N. Y. v. Bannan, official by statute belong to the 42 App. Div. 191, 58 N. Y. Supp. municipality by which he is em- 1031. 472 Abbott's Forms Of Pleading dollars from the dgfendants," but no part thereof nor of said judgment has been paid. Wherefore [etc., demand of judgment]. 468. On Undertaking Given to Stay Execution on Appeal to the Appellate Division, from Money Judgment. I. That on or about the day of , 19 , plaintiff duly recovered judgment in the court against one M. N. for the sum of dollars; that on or about the day of^ , 19 , said M. N. appealed from said judgment to the Appellate Division of the Supreme Court for the Department. II. That for- the purpose of staying the issuance of exe- cution to enforce said judgment, said M. N. caused to be given and filed in said court an undertaking duly executed and acknowledged by the defendants, of which a copy is hereunto annexed marked Schedule A, and made a part of this complaint [or, plead the character of the obligation, as: whereby they jointly and severally undertook that said M. N. would pay all costs and damages which may be awarded against him on said appeal, not exceeding the sum of five hundred dollars, send did also further undertake that if the judgment so appealed from was affirmed, or the appeal was dismissed, said appellant would pay the sum recovered or directed to be paid by the aforesaid judgment, or the part thereof as to which said judgment shall be affirmed; or, otherwise following langiiage of undertaking]. III. That a copy of said undertaking, with notice of its filing, was duly served upon the attorney for plaintiff, and that by reason of the making and delivery of said under- taking by said defendants plaintiff did not issue execution upon said judgment. IV. That said judgment so appealed from was thereafter duly affirmed by said Appellate Division, and on the day of , 19 , judgment was duly entered affirming " Demand is essential to defend- First Nat. Bank v. Story, 200 N. Y, ant's liability and must be alleged, ^ 346. Undertakings 473 said judgment and providing that plaintiff recover of said M. N. the sum of dollars costs. V. That plaintiff has duly served upon the defendants and upon the attorney for said M. N. a written notice of the entry of said judgment affirming the said judgment so ap- pealed from, and that more than ten days have expired since said service.'^ VI. That no part of said judgment has been paid.^' Wherefobe [etc., demand of judgment]. 469. On Undertaking for Costs on Appeal to Court of Ap- peals/" I. That on or about the day of > 19 , judgment was duly given under the direction of an order of the Appellate Division of the Supreme Court for the department, in favor of plaintiffs against one M. N. [briefly allege its character, as, affirming a judgment theretofore duly given in favor of plaintiffs and against said M. N., at Trial Term of said Supreme Court, for the sum of dollars]; that on or about the day of , 19 , the said M. N. appealed to the Court of Appeals from the said judgment of affirmance. II. That upon said appeal the defendants duly made and delivered their written undertaking, a copy whereof is here- unto annexed marked Schedule A and made part hereof ^ Required by Code Civ. Pro., cover the necessary lapse of time § 1309. A complaint is insufficient after such service and before suit without this allegation. No. Side brought. First Bank of Notasulga v. Hoisting Co. v. Southern Surety Co., Casualty Co., 176 App. Div. 109, 94 Misc. 167, 157 N. Y. Supp. 903; 162 N. Y. Supp. 349. Porter v. Kingsbury, 5 Hun, 598, '' Held, in Sweeney v. Met. Surety aff'd 71 N. Y. 588. Co., 129 App. Div. 22, 113 N. Y. ' It is notice of the entry of the judg- Supp. 126, that an allegation of non- ment of affirmance, not of the order of payment of the judgment was not the Appellate Division, which is re- essential. quired. Lowerce v. Tallman, 30 App. *> Such an undertaking is necessary Div. 225, 52 N. Y. Supp. 431. in order to perfect the appeal to the An allegation that a copy of the Court of Appeals. N. Y. Code Civ. judgment and notice of entry was Pro., § 1326. "duly served" is not sufficient to / 474 Abbott's Fokms of Pleading [annex copy].*^ [Or, plead its substance, as whereby they jointly and severally undertook that said M. N. would pay all costs and damages which might be awarded against him on the said appeal not exceeding five hundred dollars.] ^^ That said undertaking was duly filed with the clerk of the County of in whose office the original judgment in said action was entered. III. That thereafter, by an order of the said Court of Appeals, duly made on or about the day of , 19 , bearing date on said day, the judgment appealed from was in all respects affirmed; that thereafter and on the day of , 19 , the judgment of the Court of Appeals was duly made the judgment of the [Supreme Court] and the sum of dollars, costs and damages on the said appeal, was therein duly awarded against the appellant, but that no part of the same has been paid.*^ Wherefore [etc., demand of judgment]. 470. On Such Appeal to Court of Appeals, to also Stay Execution, Meantime. [N. Y. Code Civ. Pro. §§ 1327-32.] I. [Allege judgment and appeal therefrom, as in preceding form.] II. [Allege the undertaking by copy; or by legal effect, as in preceding form, specifying the further character of the obliga- tion thus: and also further undertook that if said judgment so appealed from, or any part thereof, was affirmed, or the appeal was dismissed, said M. N. would pay the sum re- covered or directed to be paid by the judgment, or the part *' It is unnecessary to allege that allegation if the undertaking also the undertaking was approved. N. Y. secures payment of the judgment. Code Civ. Pro., § 1335; Sutherland v. *' It is not necessary to allege that Phelps, 22 111. 91. Nor that it was the judgment of the Court of Appeals accompanied by the aflBdavits of the was made the judgment of the Su- sureties. Gibbson v. Berhard, 3 preme Court if the costs are alleged to Bosw. (N. Y.) 635; Pevey v. Sleight, have been "duly awarded." Baxter 1 Wend. (N. Y.) 518. v. Lancaster, 58 App. Div. 380, 68 " See next form as to additional N. Y. Supp. 1092. Undektakings 475 thereof as to which it is affirmed — or otherwise, -preferably following the language of the undertaking.] *^ III. [Allege affirmance and non-payment, as in preceding form.] ^^ • Wherefore [etc., demand of judgment]. 471. On Undertaking on Appeal from Decree of Surrogate. [Sustained in Hildreth v. Lerche, 23 Abb. N. C. (N. Y.) 428.] I. That heretofore and on the day of , 19 , a decree or judgment was duly given and entered in the Surrogate's Court of coimty, [briefly state its character as:] admitting to probate as a valid will of real and personal property a certain paper dated , pro- pounded by plaintiffs as the last wiU and testament of J. G. B., late of the city of , deceased, whereby the objec- tions interposed by the widow and contestant, E. B., were in all things overruled. That thereafter the said contestant, E. B., on or about , appealed to the Appellate Division of the Su- preme Court, for the Department, from the afore- said decree of probate. II. That upon the said appeal, and for the purpose of perfecting the same, the defendants herein duly made, executed and filed with the clerk of the court, their written imdertaking, pursuant to §§ 2759 and 2762 of the Code of Civil Procedure, and in conformity therewith, a copy of which undertaking is hereto annexed as a part of this complaint and marked "Exhibit A." ** If the Court of Appeals has re- on an undertaking on appeal to the versed the judgment and directed a Supreme Court from an inferior court new trial "with costs to abide the (Code Civ. Pro., §§ 1340-45), notice event," aU liability under this under- to sureties and appellants' attorney, taking is discharged. Jackson v. and lapse of ten days since such Lawy. Surety Co., 95 App. Div. 368, service, must also be alleged, as in 88 N. Y. Supp. 576, aff'd 184 N. Y. Par. V of Form 468. (Code Civ. Pro,, 521. § 1309.) " In using this form as a precedent 476 Abbott's Forms op Pleading III. That subsequently, by an order of said Appellate court, duly made on the day of , 19 , said decree appealed from was m all things aflBrmed, with costs to these plaintiffs as the lespondents, as against the said appellant, E. B., amounting, as taxed, to the sum of dollars; and thereupon a judgment of affirmance accordingly and for the aforesaid costs in favor of these plaintiffs and respondents, and against said E, B. as appel- lant, was duly entered on the day of , 19 , wherein and whereby it was adjudged, among other things, that these plaintiffs, as the respondents therein named, recover the aforesaid costs of and from the said contestant, E. B., as the appellant thereni. IV. That no part of said sum of dollars, thus awarded to, and for which judgment was entered in favor of, these plaintiffs, as aforesaid, has been paid. V. That heretofore and by an order duly made and en- tered by the said surrogate of county, dated , 19 , these plaintiffs, as the persons aggrieved by the taking of the aforesaid appeal, were duly authorized to bring an action on the aforesaid undertaking given by the defendants herein.*^ VI. [Allege service of notice of affirmance on appellant's at- torney and defendants, as in Form 468.] ^^ Wherefoee [etc., demand of judgment], 472. On Undertaking for Costs and Damages on Obtaining an Attachment. I. That heretofore in an action then pending in this court [or, the Court] by one Y. Z. against this plaintiff, the said Y. Z. made apphcation to one of the justices of the said coxurt for a warrant of attachment against the property of this plaintiff; that thereupon the defendants executed * A substantially similar averment *' Required by Code Civ. Pro., was sustained against demurrer in § 2758, applying the provisions of Ringle v. Wallis Iron Works, 16 Misc. § 1309 to appeals in surrogates' 167, 38 N. Y. Supp. 875. courts. Undertakings 477 pursuant to § 640 of the Code of Civil Procedure, a written undertaking, of which a copy is annexed hereto marked Schedule A and made part of this complaint [annex copy of the undertaking, — or, set forth the substance of the obli- gation, as' thu^: whereby they jointly and severally under- took that if the plaintiff (defendant in said action) recovered judgment therein, or if said warrant of attachment was vacated, said Y. Z. would pay all costs which might be awarded this plaintiff, and all damages which this plaintiff might sustain by reason of the said attachment, not exceed- ing the sum of dollars]. II. That pursuant to said application and upon the papers thereupon presented to him, .including said vmdertaking, Hon. J. K., one of the justices of said court, duly granted and issued a warrant of attachment directed to the sheriff of the county of , whereby the said sheriff was required to attach and safely keep sufficient property of this plaintiff to satisfy the alleged demand of the said Y. Z. in said action, to wit, the sum of dollars, together with costs and expenses. III. [Allege damage suffered, as] That at the time of the issuing of said attachment, this plaintiff [was engaged as a merchant in selUng dry goods at wholesale and retail, at No. street, in the city of , in said county]. That the sheriff of said county, pursuant to said warrant of attachment, entered said store and duly levied upon ^* and removed property of this plaintiff consisting of [specify briefly] and kept this plaintiff out of possession of the same for the space of over months; that thereby the business of the plaintiff was utterly broken up, and the goods of the plaintiff became unmarketable and useless, and this plaintiff's credit was great injured, to his damage ■"An allegation that "a levy was ject to attachment. Milliken v. duly made" upon a cause of action, Fidelity & Dep. Co., 129 A. D. 206, "under the warrant by the sheriff of 113 N. Y. Supp. 809. The fact that a a county named, admits proof to levy was made is only relevant upon show that it was of a character sub- the question of damages suffered. 478 Abbott's Forms of Pleading dollars. [// expense for. counsel has been incurred, allege as:] That plaintiff necessarily employed counsel in endeavor- ing to vacate said attachment and that the reasonable value of the services of said counsel therein, and in defending an appeal from the order vacating said attachment, was dollars, which plaintiff has paid — or, will be obUged to pay.^^ [Also allege any other expense incurred or damage s-uffered.] IV. That such proceedings were thereafter had in the action aforesaid, that this plaintiff on or about the day of , 19 , recovered judgment therein, which was duly given by said com-t against the said Y. Z., plaintiff therein, for the sum of dollars costs, no part of which has been paid.^" [Or, that on or about the day of ? 19 > an order was duly made and entered in said action vacating said attachment.]" V. That on or about the day of , 19 , plaintiff notified defendant of the rendition of said judgment and demanded payment of said sum of dollars, his said damages and costs; but that no part thereof has been paid.^^ Wherefore [etc., demand of judgment]. 473. On an Undertaking to Discharge Attachment/' [Adapted from Cruyt v. Phillips, 7 Abb. Pr. (N. Y.) 205.] * Counsel fees for such service are the undertaking that the warrant was allowed, even if the attachment granted improperly for want of holds, where the judgment is in favor jurisdiction. Code Civ. Pro., § 642. of the defendant in that action. '^ "pjjjs paragraph is usual, though Tyng V. Am. Surety Co., 174 N. Y. perhaps unnecessary. 166; ano. dec. 48 App. Div. 240, 62 " Under N. Y. Code Civ. Pro., N. Y. Supp. 843. §§ 687-696. '" See preceding note. The sureties are estopped from con- *' If. plaintiff secures an order of testing the fact of non-residence (47 discontinuance of the action, defend- N. Y. Super. 207), irregularity in ant has an action upon the under- issuance of warrant (1 Abb. Pr. N. S. taking. Straus v. Gilhou, 80 App. 421), or the truth of the grounds Div. 50, 80 N. Y. Supp. 182. upon which it was issued. 62 Barb. It is no defense to this action on (N. Y.) 175. Undebtakings 479 I. That heretofore, and on or about the day of ,19 , in an action then pending in the Court, wherein this plaintiff was plaintiff and one M. N. was defendant, a warrant of attachment in the usual form was duly issued and granted by Hon. J. K., a justice of said court, directed to the sheriff of the county of , and commanding him to attach and safely keep so much of said M. N.'s property within said county as would satisfy plain- tiff's demand; that on or about the day of , 19 , a levy was duly made thereimder upon certain prop- erty of M. N. consisting of [briefly specify].^* II. That thereafter, and on or about the day of , 19 , said M. N. made appUcation for the dis- charge of said attachment, and thereupon the defendants, for the purpose of procuring the discharge of said attach- ment, as by statute provided, duly made and delivered their undertaking, of which a copy is hereunto annexed marked Schedule A and made part hereof [annex copy. Or, whereby they jointly and severally undertook that said M. N. would pay, on demand to plaintiff, the amount of any judgment which might be recovered in said action against said M. N., not exceeding the sum of dollars with interest ^^] ; that said undertakings was duly filed with the clerk of said court, and such proceedings were thereupon had that said warrant of attachment and levy thereuijder were by reason aforesaid discharged and released. III. That thereafter, and on or about the day of , 19 , judgment was duly given in said action in favor of plaintiff and against said M. N. for the sum of dollars. If the action is brought upon an ^* A sufficient allegation of issuance undertaking given under § 658a or of and levy under warrant. See § 2912, Ck)de Civ. Pro., the burden is Milliken v. Fidelity & Dep. Co., 129 on the claimant and the-sureties to App. Div. 206, 113 N. Y. Supp. 809. establish that the claimant owned '* Interest will run from recovery the attached property. Goldstein of the judgment. Sooysmith v. Am. V. Goldman, 74 App. Div. 356, 77 Surety Co., 28 App. Div. 346, 51 N. Y. Supp. 699. N. Y. Supp. 313. 480 Abbott's Forms of Pleading IV. That thereafter, and on or about the day of , 19 , plaintiff duly demanded payment of said judgment from said M. N., but that no part thereof has been paid, either by said M. N. or by defendants. ^« Wherefore [etc., demand of judgment]. 474. On Undertaking to Discharge Vessel from Attach- ment, under New York State Lien Law (L. 1909, c. 38.)" I. That the plaintiff has a hen under the provisions of Art. IV of the Lien Law of the State of New York, against a certain three-masted schooner or vessel called the Nancy, which lien accrued while said vessel was being built by C. D. at his (C. D.'s) shipyard at [further description of shipyard is omitted] for a debt of dollars besides interest, contracted by the said C. D. on account of work done and materials furnished by the said plaintiff within the State for and towards the building the said schooner or vessel. That the items composing said debt are hereto annexed and marked "Schedule A," and made part hereof. That said sum of dollars, the amount of the above- mentioned bill, is justly due to the said plaintiff, with in- terest from the day of , 19 , over and above all payments and just deductions, and was a sub- sisting hen upon the vessel above specified, at the time of the issuance of the warrant of attachment as hereinafter alleged. II. That within ninety days after said debt became due, and on or about the day of , 19 , plaintiff duly filed in the office [of the county clerk of the county of , wherein said debt was contracted] a notice of hen under § 82 of the Lien Law, containing the name of said vessel, the name of the owner thereof, the particulars of said debt and the amoimt claimed to be due thereon. ™ The action accrues only upon Y. 52, where the cause of action was demand. Sooysmith v. Am. Surety held to be within the jurisdiction of Co., supra. See, also, First Nat. the state courts. See, also, on this Bank v. Story, 200 N. Y. 346. subject, Onderdonk v. Voorhies, 36 " From Sheppard v. Steele, 43 N- N. Y. 358. Undeetakings 481 III. That said plaintiff, having such claim aforesaid, on the day of , 19 , duly made an application to Hon. J. K., one of the justices of the Supreme Court, at his chambers in the judicial district, wherein plain- tiff then resided and still resides, setting forth by his af- fidavit the above matters and that the said vessel was at that time in county, and praying a warrant to enforce the said Hen and to collect the amount thereof according to the provisions of the statute aforesaid. IV. That on or about the said day of , 19 , said justice duly issued a warrant in conformity with the said statute upon said application, and reciting the same, and directed to the sheriff of the covmty of , duly conunanding him to attach, seize and safely keep said ves- sel, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien upon such vessel according to law, and make return of his proceedings under such warrant to the said justice within ten days after such seizure. V. That by virtue of the said warrant and the said statute aforesaid, the said sheriff of county did, on the day of , 19 , at , in the county of , execute said warrant, and did seize and take into his custody the vessel described in the said appHcation and warrant, and did safely keep the same in his custody and possession until the delivery of the bond made and exe- cuted by the defendants in this action, as hereinafter speci- fied, and did, according to the statute aforesaid, make his return to such warrant as above stated. VI. That, for the purpose of procuring the discharge of the said vessel from the said attachment, the defendants in this action did, on the day of , 19 , in pursuance of the provisions of §§ 101-2 of said statute, duly make, execute and deliver to the plaintiff their written undertaking, in the sum of dollars, conditioned that [the person making the application] would pay to the said plaintiff, his executors or assigns, the amount of all claims and demands which shall be established to be due to the 482 Abbott's Forms of PiiEADiNG said plaintiff, and to have been a subsisting lien upon said vessel, pursuant to the statute aforesaid, at the time of the issuance of said warrant. VII. That by means of the said undertaking so made and executed as aforesaid by the said defendants, an action has accrued to the said plaintiff to collect from said defend- ants his said claim of dollars, with interest thereon from the day of , 19 , no part of which has been paid. Wherefore [etc., demand of judgment]. 475. On an Undertaking for Costs and Damages on Ob- taining Order for an Arrest.** [Adapted from Keck v. Gross, 6 Misc. 438, 26 N. Y. Supp. 111.] I. That heretofore an action was commenced in the [Su- preme] Court for the county of , by one M. N. against this plaintiff, wherein the said M. N. made applica- tion to one of the justices of said court for an order of arrest against this plaintiff; that thereupon the defendants, on or about the day of , 19 , duly executed and caused to be duly filed with the clerk of said court, pur- suant to § 559 of the Code of Civil Procedure, a written undertaking, of which a copy is annexed marked Exhibit A, and made part hereof : [annex copy of the undertaking]. II. That thereupon, pursuant to said appUcation and undertaking, an order was made by Hon. J. K., one of the justices of said court for the arrest of this plaintiff. III. That this plaintiff was, on or about the day of , 19 , arrested by the sheriff of the county of , under said order, and was [unjustlyp detained and deprived of his hberty thereunder for the space of days, to his damage dollars. " If two or more persons have been the damages which the defendants arrested, and the order vacated as to "or either of them" sustain. Krause one, he may sue separately, where the v. Rutherford, 81 App. Div. 341, 81 undertaking provides for payment of N. Y. Supp. 465, aff'd 178 N. Y. 584, Undertakings 483 IV. That such proceedings were afterwards duly had in said action that on the day of , 19 , by an order of said Court duly made and entered on said day, said order of arrest was duly vacated and set aside, ^' and the time within which to appeal from said order has fully expired ^" [or, this plaintiff, on or about the day of 19 , recovered judgment therein, which was duly given by said court against the plaintiff therein, said M. N., and wherein dollars, costs, were duly awarded to this plaintiff, which have not been paid; that the time to appeal from said judgment has heretofore fully ex- pired, and no appeal has been taken therefrom]." [V. Allege any special damage, such as expense of employing counsel. See Form 472-] ^^ VI. That on or about the day of , 19 , plaintiff demanded payment of said judgment and damages from the said M. N., but no part thereof has been paid.®' Wherefore [etc., demand of judgment].^* " Action on the undertaking will '" See Krause v. Rutherford, 45 he without awaiting the final tennina- App. Div. 132, 60 N. Y. Supp. 1047, tion of the action, when the order and cases cited. Counsel fees paid of arrest has been vacated on the ■ for defending the action in which the papers on which it was granted, and arrest was obtained cannot usually not on the merits, and any appeal be recovered in an action on the talcen therefrom has resulted in an undertaking. Peinstein v. Jacobs, 139 affirmance or a dismissal of the ap- App. Div. 192, 123 N. Y. Supp. 750; peal. Krause v. Rutherford, supra; Kattell v. Am. Surety Co., 160 App. Allaire v. Kalfon, 20 App. Div. 646, Div. 68, 145 N. Y. Supp. 465. But 47 N. Y. Supp. 969. they may be recovered where the •" Or if an appeal was taken, allege trial was necessary in order to vacate the affirmance on appeal, or the dis- the order of arrest. Cook v. Nat. missal of the appeal. See Allaire v. Surety Co., 169 App. Div. 656, 155 Kalfon, supra; Cook v. Nat. Surety N. Y. Supp. 493. Co., 169 App. Div. 656, 155 N. Y. The sureties are hable for the Supp. 493. amount which plaintiff is obUgated to "' If an appeal is pending undeter- pay counsel, as weU as what he has mined the action will not Ue. Cook actually paid. Cook v. Nat. Surety V. Nat. Surety Co., 169 App. Div. Co., supra. 656, 155 N. Y. Supp. 493. " An allegation of demand is probar " Leave to sue on the undertaking ford, 45 App. Div. 132, 60 N. Y. ig not necessary. Krause v. Ruther- Supp, 1047. 484 Abbott's Forms of Pleading 476, On Undertaking for Jail Limits.^^ [Under N. Y. Code Civ. Pro., §§ 149, 151.] I. That in an action in the Court, brought by plaintiff against one M. N., plaintiff on or about the day of , 19 , duly recovered judgment against said M. N. for dollars. II. That on or about the day of , 19 , plaintiff duly issued an execution against the person of said M. N. to the sheriff of the county of , wherein said sheriff was commanded to commit said M. N. to jail until he should pay the said judgment or be discharged according to law. III. That on or about the day of , 19 , said M. N. was duly arrested by the said sheriff. IV". That on or about the day of , 19 , defendant, together with said M. N., duly made, executed and delivered their undertaking to said sheriff, a copy whereof is hereunto annexed marked A and made part hereof [or, plead according to legal effect, as: wherein and whereby they bound themselves to said sheriff in the sum of dollars, the condition thereof being that if the said M. N. should remain a prisoner "^ and should not at any time or in any manner escape, or go without the liberties of the jail of the said county of , until discharged by due course of law, then the obligation to be void, otherwise to be and remain in full force and virtue]. i V. That on said day said undertaking was approved by Hon. J. K., one of the justices of said court, and thereupon said M. N. was by said sheriff admitted to the jail limits bly not essential. First Nat. Bank v. ** Adapted from Flynn v. Union Story, 200 N. Y. 346. Surety Co., 170 N. Y. 145, where The party arrested can resort, in a judgment for plaintiff was af- the first instance, to an action on the firmed. undertaking without pursuing his ^ Although released on jail limits, remedy against the party procuring he still remains a prisoner in the eyes the arrest. Keck v. Gross, 6 Misc. of the law. Horowitz v. Olenick, 438, 26 N. Y. Supp. Ill, 58 N. Y. 62 App. Div. 283, 70 N. Y. Supp. St. Rep. 301. 1116, Undertakings 485 of said county of , which have at all times since been the city of [VI. That on or about the day of , 19 , said sheriff delivered to the plaintiff's attorneys in said action a copy of said undertaking, and execution and return thereon, and that said attorneys did not within three days thereafter, or at any other time, serve a notice that they or the plaintiff did not accept said surety or bail.] ^^ VII. That on or about the day of , 19 , said M. N. went at large beyond the limits of the liberties of the jail, to wit, to , in the county of ; that said going at large beyond said jail limits was without the assent of the plaintiff. [VIII. That on said day, and while said M. N. was beyond the jail limits, as aforesaid, this action was duly commenced by the service of the summons herein upon the defend- ant.] «« IX. That said M. N. has never been discharged by due course of law, or otherwise, and that said judgment has never been paid. Wherefore, etc. [demand for judgment]. 477. On Undertaking of Bail, to Procure Discharge from Arrest/' I. That on or about the day of > 19 , at , under an order of arrest theretofore duly granted by Hon. J. K., a justice of the Court, against one " These allegations were in the graphs V and VI cover an arrest un- precedent but are not a part of der § 549 of the N. Y. Code, other plaintiff's case on the statutory than in an action of replevin. Where undertaking. the order has been granted in an ac- " It is a defense if the prisoner has tion of replevin, or under § 550 of the returned before action begun, under Code, the undertaking of the bail will Code Civ. Pro., § 160. To include be in accordance with § 575 of the such an allegation in the complaint Code, and the averments must be would be merely in anticipation of changed to conform to the require- the defense. ments of § 597. '' The allegations set forth in para- 486 Abbott's Forms of Pleading M. N., in an action brought in said court by this plaintiff, against the said M. N., the said M. N, was duly arrested by the sheriff of the county of , in said county. II. That thereafter and oh or about the. day of , 19 , the defendants, as the bail of said M. N., duly executed a written undertaking, pursuant to § 575 of the Code of Civil Procedure, of which undertaking a copy is annexed, marked "A," and made a part of this com- plaint [or, and thereby jointly and severally undertook, in the sum of dollars, that the said M. N. should at all times render himself amenable to any mandate which might be issued to enforce a final judgment against him in said action — or, otherwise, according to the terms of the under- taking], III. That thereupon the said M. N. was discharged from said arrest. IV. That thereafter and on or about the day of , 19 , judgment in said action was duly given by said court, against said M. N., and in favor of the plaintiff, for dollars, which has not been paid. V. That thereafter and on or about the day of , 19 , execution thereon against the property of said M. N. was duly issued to the sheriff of said county [the county wherein he was originally arrested] and -the same was thereafter duly returned by said sheriff wholly unsatisfied [or, unsatisfied except as to the sum of dollars]. VI. That thereafter, and on or about the day of ,19 , an execution against the person of said M. N. was duly issued to said sheriff, and said sheriff made return more than fifteen days thereafter, to wit, on or about the day of , 19 , that said M. N. could not be found within his said county. VII. That defendant has paid no part of said sum of dollars under his said undertaking, and by reason of the premises, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. Undertakings 487 478. On Undertaking to Indemnify Sheriff for Levy under Execution. [Complaint in Conner v. Reeves, 103 N. Y. 527.] " I. That from and including the day of , 19 , to and including the day of , 19 , plaititiflf was sheriff of the city and county of New York. II. That the defendants in this action, on or about the day of . 19 , duly made, executed and deUvered to this plaintiff, as such sheriff as aforesaid, their certain bond or writing obhgatory, sealed with their respect- ive seals, dated on said day, wherein and whereby they bound themsielves to this plaintiff, as sheriff of the city and coxmty of New York, in the penal sum of dollars, lawful money of the United States, to be paid to this plaintiff, or to his executors, administrators or assigns, for which pay- ment, well and truly to be made, they bound themselves and their and each of their heirs, executors and administrators jointly and severally firmly by theWd bond or writing ob- hgatory. That the said bond or writing obligatory, so as aforesaid made, executed and dehvered, was subject to a certain con- dition therein written, whereby, after particularly reciting that one M. N. had obtained judgment in the Court » • against one O. P. for the sum of dollars, whereupon execution had been issued, directed and delivered to this plaintiff as such sheriff, commanding him that out of the goods and chattels of the said judgment debtor in his county he should cause to be made the sum aforesaid, and that certain personal property that appeared to belong to the said judgment debtor, against whom said execution had so been issued, was claimed by one S. T. [claimant], it was agreed, and the condition of said bond or writing obhgatory was such, that the said obUgors on said bond [being the defend- ants in this action] would indemnify the plaintiff herein, to the amount of dollars against all damages, costs, '" The form finds further support in Reilly v. Moffatt, 20 N. Y. Week. Dig. 391. 488 Abbott's Forms of Pleading and expenses in any actidn which might be brought against him by said [claimant],- his assignee, or other representative, by reason of the levy upon, detention or sale of any of said property by virtue of said execution. III. That, in reUance upon said undertaking, plaintiff levied upon said personal property, for the purpose of satis- fying said execution. IV. That on or about the day of , 1-9 , by reason of the said levying upon and taking possession of said personal property, one G. K. commenced an action against this plaintiff as sheriff as aforesaid, in the Court; that such proceedings were subsequently had in said last-mentioned action that afterwards, and on or about 19 , judgment was duly rendered therein in favor of said G. K. for the sum of dollars damages and costs. V. That the costs, counsel fees and expenses to this plain- tiff which accrued in defending said last-mentioned action, amounted to the sum of dollars. VI. That defendants have not paid to plaintiff any por- tion of said judgment, or of said expenses. Wherefore [etc., demand of judgment]. 479. On Undertaking in an Action to Recover a Chattel , (Replevin)." I. That heretofore, and on or about the day of , 19 , one M. N. commenced an action in the Court against this plaintiff to recover the posses- sion of [specify the chattel], and thereupon delivered to the sheriff of the county of , the affidavit and requisi- tion required by law to cause said chattel to be replevied by said sheriff. II. That on said day of , 19 , and pur- suant to the requirements of § 1699 of the Code of Civil "Under N. Y. Code Civ. Pro., Div. 91, 139 N. Y. Supp. 1037, § 1699. Form adapted from First aff'd 209 N. Y. 145.' Com. Bank v. Valentine, 155 App. Undertakings 489 Procedure, the defendants made and caused to be delivered to said sheriff with such requisition a written undertaking, of which a copy is hereto annexed marked A and made a part hereof: [annex a copy. Or, whereby they jointly and severally undertook and became bound to plaintiff, [the de- fendant in said action]" in the sum of dollars for the prosecution of said action, for the return of said chattel to this plaintiff if possession thereof was adjudged to him, or if said action abated or was discontinued before said chattel was returned to plaintiff, and for the payment to plaintiff of any sum which the judgment in said action might award to him against said M. N.]. III. That thereafter, and on or about the day of , 19 , said sheriff replevied said chattel from plaintiff's possession. IVr That thereafter, and on or about the day of ,19 , a judgment was duly given by said Court in said action, wherein the possession of said chattel was duly adjudged to this plaintiff, and the sum of dollars damages awarded to him against said M. N., and wherein it was further adjudged that said chattel was of the value of dollars, and that if the same was not re- turned to this plaintiff by said M. N. that said M. N. pay to plaintiff such sum of dollars." V. That an execution upon said judgment, in the form prescribed by law for the delivery of the possession of said chattel to plaintiff and for the collection of said sum of dollars costs and if possession of said chattel could not be deUvered, for the collection of said sum of dollars, has been duly issued to the said sheriff, and has been hereto- fore returned wholly unsatisfied and unexecuted," and '- Such an undertaking does not ^' The judgment must also fix the inure to the benefit of a defendant value of the chattel, and award such brought in after the giving of the sum, to be paid by plaintiff if jyosses- undertaking. First Com. Bank v. sion of the chattel is not delivered. Valentme, 155 App. Div. 91, 139 N. Y. Code Civ. Pro., § 1730. N. Y. Supp. 1037, aff'd 209 N. Y. '* Required by Code Civ. Pro., 145. § 1733. Does not apply where the 490 Abbott's Forms of Pleading that said chattel has not been returned to plaintiff, or any portion of its value paid to him. Wherefore [etc., demand of judgment]. • 480. On an Undertaking, Given in an Action of Replevin, to Secure the Return of the Property, etcJ' I. That heretofore and on or about the day of , 19 , this plaintiff commenced an action in the Court against one M. N., to recover possession of specific personal property, and caused the same to be duly replevied by the sheriff of the coimty of II. That in the course of said action, such proceedings under § 1704 of the Code of Civil Procedure ^^ were had that on or about the day of , 19 , the de- fendants made and caused to be deUvered to the said sheriBf of county their written vmdertaking, of which the following is a copy: [copy of the undertaking — or, wherein they jointly and severally undertook, etc., stating substance of obligation as in preceding forms]. III. That the personal property referred to in said under- taking was thereupon by said sheriff returned to the said M. N., defendant in said action, pursuant to said undertak- ing, and to a notice by said M. N., requiring such return, made pursuant to § 1704 of the Code." judgment was a dismissal on default. It was held in McMillan v. Dana, Rushbrook v. Jerge, 74 Misc. 43, 133 18 Cal. 339, that the complaint on a N. Y. Supp. 640. statute undertaking, given to dis- '* Adapted from the complaint in charge a levy, need not aver the facts Slack V. Heath, 1 Abb. Pr. (N. Y.) which authorized the issue of the 331, 4 E. D. Smith, 95. process levied, if the levy is recited ™ Unnecessary, since it is never in the instrument. The recital estops necessary to plead a public statute, the defendants. And to similar ef- nor even to refer to its title, in order feet is Gregory v. Levy, 12 Barb, to give the party the benefit of its (N. Y.) 610. provisions. Goelet v. Cowdrey, 1 " As to the necessity of this aver- Duer (N. Y.), 132. This is the form ment, see Slack v. Heath, 1 Abb. Pr. suggested by the Superior Court for 331 and 343. In a complaint upon a an amendment in the complaint in bond given by a defendant in an ac- Bowdoin v. Coleman, 3 Abb. Pr. tion, either for the delivery of prop- (N. Y.) 431. erty replevied, or the release of Undertakings 491 IV. That such proceedings were afterwards had, that, on or about the day of , 19 , this plaintiff recovered judgment, which was duly given "by said court in said action against said M. N., the defendant therein, that the plaintiff recover possession of said property, or the sum of dollars, in case a deUvery could not be had," and for the sum of dollars damages and costs. V. That an execution upon said judgment in the form pre- scribed by law has been heretofore duly issued to the said sheriff of the county of , and by said sheriff returned wholly unsatisfied and unexecuted," and said personal property has not been delivered to plaintiff, or any portion of its value paid to him. Wherefore, [etc., demand of judgment]. 481. On an Undertaking Given on Obtaining an Injtmc- tion.«" I. That on or about the day of , 19 , property attached, it must be averred that the property was delivered or released. This is the consideration, and must be alleged. Palmer v. Melvin, 6 Cal. 651; Williamson v. Blattan, 9 id. 500. And this is so even if the undertaking was under seal. Nickerson v. Chatterton, 7 id. - 568. But if the undertaking recites the performance of the condition, a com- plaint setting forth the undertaking, nged not also aver performance. Mc- Millan V. Dana, 18 Cal. 339. ™ In an action against the sureties in a bond or undertaking given for the return of property replevied, the complaint should show a judgment in the alternative, for a return, or for payment of a specified value, and aver that neither has been had; and the recovery against the sureties can only be for the latter. Nickerson v. Chatterton, 7 Cal. 568. ™ See Code of Civil Procedure, § 1731, prescribing form of execu- tion, and § 1733, requiring execution to have been issued and returned unsatisfied. *" On granting an injunction the court has power to require an under- taking fixing a Uability in addition to the statutory requirement; if the terms are accepted and the injunc- tion obtained and enforced, the sureties thereon are liable. Am. Exch. Nat. Bank v. Goubert, 135 App. Div. 371, 120 N. Y. Supp. 397. Where an action is brought upon an injunction bond, the subject of the action being the damage sustained by the plaintiffs in consequence of the in- junction, which prevented them from, proceeding in their business, all the obligees may join as plaintiffs, not- withstanding the claim of one of them is different in its character and amount from that of the others. Loomis V. Brown, 16 Barb. (N. Y.) 325. 492 Abbott's Forms of Pleading in an action brought by M. N. against this plaintiff, an in- junction order issued out of this court [or, the Court] was duly served " on this plaintiff, by which this plaintiff was enjoined from [here state briefly the effect of the injunction]. II. That at the time of the issuing of the 'said injunction in the said action, and for the purpose of causing the same to be issued, the defendants made and caused to be filed a written undertaking, of which the following is a copy: [copy of the undertaking — or, whereby they jointly and severally undertook that said M. N. would pay to plaintiff such damages not exceeding the sum of dollars as plaintiff might sustain by reason of the injimction, if the court finally decided that said M. N. was not entitled thereto, thus setting forth substance of undertaking]. III. That thereafter and on or about the day of ,19 , judgment was duly given by said coiirt in said action,^' and it was therein and thereby duly adjudged, that the said M. N. was not entitled to the said injunction; that no appeal from said judgment was taken and that the time of said M. N. to appeal therefrom has heretofore fully expired.** IV. That thereafter under proceedings duly had for that " In an action upon an undertaking entered into on granting an injunc- given on the issue of an injunction, an tion, it is a sufficient statement of the allegation that the injunction was nature of a suit, the manner of its served imports a legal service, and is commencement, place of trial, juris- sufficient on demurrer. Loomis v. diction of the court, etc., to say that Brown, 16 Barb. (N. Y.) 325. an injunction in the suit was duly It would be enough to say, "Which granted by a justice of a court, and this plaintiff, having notice of, that issues were joined in the suit, obeyed." A defendant who obeys an and a judgment rendered therein, injunction, though never served Loomis v. Brown, 16 Barb. (N. Y.) therewith, is entitled, after judgment 325. in his favor, to claim the damages pro- *' Or otherwise show that the mat- vided for in the undertaking given to ter has been fiiwlly determined, procure such injunction. Cumber- Discontinuance on plaintiff's motion land Coal & Iron Co. v. Hoffman against defendant's consent is suffi- Steam Coal Co., 15 Abb. Pr. (N. Y.) cient. N. Y. Central, etc., R. Co. v. 78. Village of Hastings, 9 App. Diy. 256, '2 In an action upon an undertaking 41 N. Y. Supp. 492. Undertakings 493 purpose, the plaintiff's damages sustained by reason of said injunction were duly ascertained and determined by the said court [or, by the referee duly appointed by said court, by order duly made on the day of 19 ,] ; that by the decision of said court thereon [or, by the report of said referee, which was duly confirmed by said court] in and by its order duly made on the day of , 19 , plaintiff's said damages were fixed at the sum of dollars.*'' V. That no part thereof has been paid. Wherefore [etc., demand oj judgment]. 482. On a Bail Bond Given in Criminal Proceedings.*^ I. That heretofore and on or about the day of , 19 , one M. N. was duly indicted for the crime of [forgery in the second degree;] that he was thereafter and on or about the day of , 19 , duly arraigned in the court of in the County of , and pleaded not guilty, and bail was thereupon duly fixed at the sum of dollars. II. That thereafter and on or about the day of , 19 , said M. N. and the defendants duly made, executed and acknowledged to the People oT the State, their bond in. the form prescribed by § 568 of the Code of Criminal Procedure, in the said sum of dollars, conditioned that said M. N. should at all times render himself amenable to the orders and process of. the court, and if convicted shall appear for judgment and render himself in execution thereof. III. That thereafter said M. N. was duly brought to trial under the indictment on , 19 , and was duly ^* The complaint upon an under- Phoenix Bridge Co. v. Keystone taking to pay all damages which Bridge Co., 10 App. Div. 176, 41 should be awarded by virtue of the N. Y. Supp. 891, aff'd 153 N. Y. issuing of an injunction, must allege 644. an award of damages. Tarpey v. '* Adapted from People v. Mao- Shillenberger, 10 Cal. 390. Gregor, 147 App. Div. 488, 131 N. Y. As to damages recoverable, see Supp. 783. 494 Abbott's Forms of Pleading convicted; and that thereupon said court duly made an order directing that the bond hereinbefore mentioned be con- tinued until the day of , 19 , at o'clock in the forenoon, to which time the said court was thereupon duly adjourned for the purpose of passing sen- tence and judgment upon said M. N. IV. That said M. N. failed to appear on said adjom-ned day, and his said sureties failed to produce him, for sentence and judgment, whereupon the court duly ordered that the bail be forfeited and that the proper officer proceed against the defendant to collect the sum of dollars for the use and benefit of the county of V. That the defendants, and said M. N., have paid no part of said dollars. Wherefore [etc., demand for judgment]. 483. On Undertaking Given to Secure Stay of Proceed- ings.** I. That heretofore, and on or about the day of ,19 , an action was pending in the Coizrt, brought by this plaintiff against one M. N., to recover the sum of dollars for [briefly describe, as] goods sold and delivered. II. That on or about said date, said M. N., by an order granted by said Court and dated on said day, ob- tained a stay of proceedings on the part of the plaintiff in said action. III. That said stay of proceedings was granted by said court upon condition that said M. N. would given an under- taking as hereinafter described. IV. That for the purpose of securing such stay, and in compUance with the requirements of said order, the de- fendants jointly and severally undertook that said M. N. would pay all the damages which plaintiff might suffer or *« Adapted from complaint in Gibbs N. Y. Supp. 945, aff'd 150 N. Y. V. Title G. & S. Co., 79 Misc. 247, 139 Supp. 1087. Undertakings 495 sustain by reason of said stay of proceedings, not exceeding the sum of dollars. V. That by virtue of the giving of said undertaking by the defendants, the proceedings in said action on the part of this plaintiff against said M. N. were stayed from said day of , 19 , to the day of , 19 , when judgment was duly entered in favor of plaintiff against said M. N. for the sum of dollars. VI. That thereafter an execution upon said judgment was duly issued upon said judgment against said M. N., but said execution has been returned wholly unsatisfied and said judgment remains wholly unpaid. VII. That at the time said stay of proceedings was ob- tained, said M. N. was solvent and able to pay such judg- ment as might have been obtained by plaintiff in said action against him, and continued to be solvent for at least months thereafter, during which time said action could have been regularly tried but for such stay of proceedings. VIII. That on said day of , 19 , when said stay of proceedings ^as terminated, said M. N. was wholly insolvent, and had been prior to said date duly ad- judicated a bankrupt. IX. That plaintiff has sustained damages by reason of said stay of proceedings in the sum of dollars, no part of which has been paid. Wherefore [etc., demand for judgment]. CHAPTER XVI COMPLAINTS IN ACTIONS ON CHARTER PARTIES PAGE 484. Shipowner against charterer, for freight 496 485. The same, annexing a copy 497 486. The same, against assignee of cargo 497 487. For not loading 498 488. For injuries to vessel caused by violation of agreement 498 489. For demurrage 499 490. The same, by railroad 500 491. For damages for unreasonable detention of vessel in unloading 502 492. Charterer against owner, for abandoning the Voyage 503 484. Shipowner against Charterer, for Freight. ^ I. That at , and on or about the day of , 19 , the plaintiff and defendant agreed by charter party that the plaintiff's ship named should, with all convenient speed, sail to - , and that the defendant should there load her with a full cargo of , or other lawful merchandise, which she should carry to , and there deliver to defendant on payment by him to plaintiff of freight at dollars per ton, [one-half of such freight to be paid in cash on unloading and delivery of the cargo, and the remainder by approved bills on , at months, or in cash less per cent discount, at the ' This form is adapted from Isberg App. Div. 347, 93 N. Y. Supp. 805, in V. Bowden, 8 Exch. 852. an action by the owner against the A charter party is usually a mere sureties on a bond for the faithful affreightment and not a lease of the performance of his contract by the vessel for the time being; but a char- charterer. ter part.y under which the owner As to allegations in a complaint by agrees to deliver the vessel and the owners of a vessel, for the breach of charterer to return at a specified time, a clause in the charter party binding is to be considered a lease. Auten v. the hirers to keep her in repair, see Bennett, '183 N. Y. 496. Coster v. N. Y. & Erie R. R. Co., See a form of complaint in Mich- 3 Abb. Pr. (N. Y.) 332, 6 Duer, igan SS. Co. v. Am. Bonding Co., 104 43. 496 Charter Parties 497 defendaBt's optitm — or, otherwise, according to terms of agree- ment], II. That afterwajrds the said ship accordingly sailed to , aforesaid, and was there loaded by the defendant with a full cargo of lawful merchandise, and the plaintiff duly carried the said cargo in said ship to aforesaid, and there unloaded and delivered the same to the defendant. [Or, in the short method allowed by statute {N. Y. Code Civ. Pro., % 533) iris.:] II. That plaintiff duly performed all the conditions on his part. III. That said cargo consisted of tons, and said freight amounted in the whole to the sum of dollars ; [allege non-payment of freight, as:] that the defendant paid to the plaintiff one-half of said freight in cash, but defend- ant did not pay to the plaintiff the remainder of said freight, to wit, the sum of dollars [either by such approved bills as ^.foresaid, or in cash, less discoimt as aforesaid]. Wherefore [etc., demand of judgment]. 486. The Same, Annexing a Copy.^ I. That at and on or about the day of ,19 , the plaintiff and defendants entered into an agreement, a copy wherecrf is hereunto annexed marked "A" and made part of this complaint. II and III as in preceding form. 486. The Same, against Assignee of Cargo. I. That at , on or about the day of , 19 , plaintiff and one M. N. agreed by charter party [continue as in paragraph I of the two preceding forms, substituting the charterer's name for the word "defendant"]. II. That thereafter the said M. N. assigned the cargo [or, the charter party and cargo] to the defendant, who there- 2 See as to the effect of thus annexing a copy of an agreement, note 21 on p. 6. 498 Abbott's Forms of Pleading / upon became the owner thereof and entitled to receive the same. III. [Continue as in Form 484, paragraphs II and III.] Wherefore [etc., demand of judgment]. 487. For not Loading.' I. That on or about the day of , 19 , at , plaintiff and defendant agreed by charter party that the defendant should deUver to the plaintiff's ship , at , on the day of ; 19 , tons of [merchandise], which she should carry to , and there deUver to defendant on payment of dollars freight; and that the defendant should be allowed days for loading, and days for discharging, and days for demurrage, if required, at dollars per day. [Or, plead the charter party by copy as in Form 485.] II. That the plaintiff duly performed all the conditions on his part and was ready and willing at the time and place aforesaid to receive said cargo upon his said vessel and offered to receive the same.^ III. That defendant failed and refused to deUver said cargo to plaintiff's said ship and that the aforesaid period for loading and demurrage has heretofore fully elapsed, to plaintiff's damage dollars.^ Wherefore [etc., demand of judgment]. 488. For Injuries to Vessel, caused by Violation of Agree- ment.* I. That at , and on or about the day of ' On neglect or failure of the char- might have been so procured. Mur terer to furnish a cargo as agreed, it is rell v. Whiting, 32 Ala. 54. the duty of the master to use all ordi- * Plaintiff's performance of condi- nary means and diligence to secure tions precedent, and readiness to per- another cargo, and his neglect to do form conditions concurrent must be this will not be allowed to enhance the averred and shown. Robert v. damages in an action by the owner Opdyke, 40 N. Y. 259. against the charterer for the breach of ' For measure of damages, see Ash- contract; but the burden is upon the burner v. Balchen, 7 N. Y. 262. defendant to show that another cargo "From Bleakley w. Sheridan, 115 Charter Parties 499 , 19 , plaintiff chartered to defendant a scow for the term of and at the rental of dollars; and defendant agreed that said scow should not be sent to , which was dangerous to such a craft at such periad of year. II. That defendant, notwithstanding his said agreement and in violation thereof, sent said scow to , and on or about the day of , 19 , it was blown ashore at and damaged. HI. That plaintiff necessarily expended the sum of doUars in getting said scow afloat, and in repairing it, and was deprived of its use for a period of weeks (which use was of the value of dollars per week), in all to plaintiff's damage dollars. ■ Wherefore [efc., demand of judgment]. 489. For Demurrage.'^ I. [As in Form 487].^ II. That the plaintiff duly performed all the conditions on his part. III. That the defendant kept the said ship on demurrage App. Div. 657, 100 N. Y. Supp. 1029, able time in loading and unloading, where it was held that the action was but must declare specially for dam- on contract, and that the damages ages sustained. Abb. on Shipping, being unUquidated no interest thereon 304; Clendariiel v. Tuckerman, 17 could be recovered. Barb. (N. Y.) 184; Horn v. Bensusan, Such a chartering would be in the 9 C. & P. 709, 2 M. & Rob. 326; Kell nature of a lease. See note to Form v. Anderson, 10 M. & W. 499. See 484. Erichsen v. Barkworth, 3 H. & N. ' Demurrage is a terra used to ex- 894; MoUerw. Young, 5 El. & Bl. 755. press a sum of money agreed to be paid With respect to demurrage on rail- for the detention of a vessel by the road cars, plaintiff recovers the shipper or owner of goods at the port charges embraced in its tariff as filed of shipment or discharge after the ex- with the Interstate Commerce Com- piration of the time allowed for the mission, which charges the plaintiff loading or unloading of the cargo by is obliged to collect. See next Form the consignee. 3 Kent's Gom. 203. arid notes. If there be no express contract to pay ' Where the demurrage is for demurrage, a shipowner cannot, on a freight cars plaintiff must allege the count for demurrage, recover for the rate in its tariff schedule on file with detention of the ship for an unreason- Interstate Commerce Commission. 500 Abbott's Forms of Pleading days over and above the periods so agreed upon for load- ing and discharging as aforesaid, but has failed to pay plain- tiff the sum of dollars therefor, or any part thereof. Wherefore [etc., demand of judgment]. 490. The Same; by Railroad." I. [After proper allegations of plaintiff's corporate capacity, and operation of a railroad.] II. That at and prior to all the time hereinafter mentioned, plaintiff, as a common carrier engaged in interstate com- merce, had duly pubUshed and filed with the Interstate Com- merce Commission, and printed and kept open for public inspection, pubUc schedules showing all the rates, fares and charges for transportation between different points on its own route, and between points on its own route and points on the route of any other carrier by railroad when a through rate or joint route had been established, which schedules also stated separately all terminal charges and other charges required by the Commission, and plaintiff has at times duly made changes in such rates, fares and charges in the manner required by law, and has in all things duly compUed with the provisions of the Act of Congress of February 4th, 1887, commonly known as the Interstate Commerce Act, and the acts amendatory thereto. III. In pursuance of such publication of its rates and charges, and of changes therein, and in due obedience to the law above mentioned, plaintiff, on or about the day of , 19 , duly filed with the Interstate Commerce Commission, and duly pubhshed, printed and kept open for pubUc inspection and posted in its depots a general notice of Charges on different cars, for Div. 806, 132 N. Y. Supp. 41, where a different periods, do not necessarily recovery for plaintiff was sustained make separate causes of action. Erie but no question of pleading was di- R. R. Co. V. Hilton, 171 App. Div. rectly involved. See, also, Staten 545, 157 N. Y. Supp. 733. Isl. Rap. Trans. Co. v. Marshall, 136 ' Adapted from the complaint in App. Div. 571, 121 N. Y. Supp. 82, Pa. R. R. Co. V. Marshall, 147 App. and notes to preceding form. Charter Parties 501 regulations covering demurrage charges on cars [containing bituminous coal and coke at tidewater points], the parts of such general notice material to the present action being as follows: [Quoting the regulations.] IV. That plaintiff in making and issiiing such regulations duly compUed in all ways with the requirements of said In- terstate Commerce Act, and thereafter, to wit, on and after the day of , 19 , said regulations became binding upon aU shippers, and the defendant became by law liable for demmrage in accordance with the above regulations on his shipments as hereinafter set forth. ' V. That thereafter, and during the months of , 19 , the defendant shipped [show shipments coming within the quoted reguhiions]; that by so shipping such [coal] on the cars of the plaintiff, defendant became bound to pay all proper demurrage as estabhshed by the plaintiff's published regulations and schedules as aforesaid. VI. That on the arrival of the cars containing defendant's [coal] at , certain of them were detained for various periods of time, more fully set forth in Schedule A hereto annexed and made a part of this complaint, through no fault of the plaintiff, and solely by reason of the" failure of the de- fendant to [furnish the requisite boats and vessels to trans- ship his said coal]. That calculating the time of the deten- tion of the various cars, as specifically shown in said Schedule A, and charging for the same according to the regulations above quoted, and making all proper deductions required by such regulations, there became due and owing to the plaintiff from the defendant demurrage on the said cars as also spe- cifically set forth in said Schedule A, and aggregating the sum of dollars. VII. That defendant has paid to plaintiff no part of said sum of dollars, although payment thereof has been heretofore duly demanded. Wherefore [etc., demand for judgment]. 502 Abbott's P'orms of Pleading 491. For Damages for Unreasonable Detention of Vessel in Unloading.'" I. That at the times hereinafter mentioned plaintiff was (and now is) the owner of [the barge Nellie H.J; that at , and on or about the day of , 19 , plaintiff chartered said barge to one M. N., a manufacturer of brick at said , to carry a cargo of brick from to , there to be sold. II. That said barge arrived at on the day of , 19 , and on that day the said cargo of brick was sold to the defendant, subject to the conditions for usual and ordinary time for unloading such cargo. III. That the usual and ordinary time for unloading such a cargo of brick at said is not to exceed days; that defendant detained said barge, in unloading said cargo,* a period of days after the expiration of such usual and ordinary period for unloading. IV. That plaintiff has been damaged in the sum of dollars by the defendant's detention of said barge, as aforesaid, or at the rate of dollars per day," which is the reasonable value of the use of said barge, no part whereof has been paid although heretofore, and on or about the day of , 19 , duly demanded of the defendant. Whebefore [etc., demand for judgment]. 492. Charterer against Owner, for Abandoning the Voyage. I. That on or about the day of , 19 , '" Adapted from Washburn v. Em- resulting from his unreasonable delay pire Brick & Supply Co., 152 App. in unloading. Div, 563, 137 N. Y. Supp. 489, where See, also, Ulster Brick Co. v. it was held that a consignee is liable Murtha, etc., Co., 169 App. Div. 151, to the owner for damages in the nar 154 N. Y. Supp. 834, where it was ture of demurrage for unreasonable also held that when the period of delay in discharging the cargo, al- unreasonable detention has begun, though no express agreement was the obligation to pay is continuous made in relation to demurrage or regardless of weather and holidays, discharging; it was also held that ^' This is the measure of the dam- the vendee of the consignee is also ages. Ulster Brick Co. v. Murtha, liable to the owner for the damages etc., Co., supra. Charter Parties 503 at , plaintiff and defendant agreed by charter party that the defendant's ship called , then at ., should, with all convenient speed, having liberty to take an outward cargo for owner's benefit, sail to , or so near there as she could safely get, and there load from the plaintiff [or, the factors of the plaintiff] a full cargo of , or other lawful merchandise, which he should carry to , and there deliver to plaintiff on payment of freight [certaiin perils and casualties in the said charter party men- tioned only excepted]. ^^ [Or, plead by copy annexed, as in Form 485.] II. That the plaintiff duly performed all the conditions on his part, and was ready and willing at said to load a full cargo of upon said ship when 'the same should arrive. III. That said ship [was not prevented ^^ by any of said perils or casualties from completing said outward voyage, but that she] did not with all convenient speed sail to , or so near thereto as she could safely get; and the defendant caused the said ship to deviate from her said voyage and abandoned the same, to the plaintiff's damage dollars. Wherefore [etc., demand of judgment]. " It is not essential to aver and party. Wheeler v. Bavidge, 9 Exch. negative the exceptions in the charter 668, 25 Eng. L. & Eq. R. 541. CHAPTER XVII COMPLAINTS IN ACTIONS ON GUARANTIES ^ PAGE 493. Against guarantor of payment of note 505 494. Against guarantor of payment of debt contemporaneously contracted 506 495. On a guaranty of payment of a precedent debt ' . 509 496. The same, alleging the specific consideration for the guaranty. . . 510 497. Against guarantor of bonds; principal sum due for default in interest payment 510 498. Against guarantor of payment of coupons on negotiable bonds 511 499. Against guarantor of the ultimate payment 513 500. Against guarantor of the collection of a debt 514 501. On guaranty of yearly dividend on stock 515 502. Against sureties for payment of rent 517 503. Against sureties upon building contract; owner's default in making payment 518 504. The same, contractor's default in performance 519 1 The principal debtor and the guarantor may not be sued in the same action. Their engagements are not upon the same instrument, within the meaning of Code Civ. Pro., § 454. See Stein v. Whitman, 156 App. Div. 861, 142 N. Y. Supp. 4, reversed in 209 N. Y. 576, on the dissenting opinion in ' the court be- low; De Ridder v. Schermerhorn, 10 Barb. 638. Of course this will not be the rule if the guarantor is included as one of the parties to the principal's agree- ment. See Carman v. Plass, 23 N. Y. 286. Upon a guaranty that the prin- cipal will pay on demand, or that the guarantor will pay on demand, de- mand in each case is matter of sub- stance and must be alleged and proved. See First Nat. Bank v. Story, 200 N. Y. 346'. 504 If the complaint is based wholly on an alleged guaranty, no recovery may be allowed on the theory of a primary liability by defendant. Harms Co. o. Michel Brewing Co., 176 App. Div. 235, 162 N. Y. Supp. 1071. It is not necessary to specifically allege that the defendant's agree- ment was in writing; as against a demurrer this will be presumed. Marston v. Swett, 66 N. Y. 206; see also general note on p. 17. It is not necessary in New York to allege or prove that an acceptance of a guaranty, absolute in its terms, was communicated to the guarantor. Niles Co. V. Reynolds, 4 App. Div. 24, 38 N. Y. Supp. 1028. See, generally, the notes to Form 494, which are applicable to most actions on guarantees. Actions on Guaranties 505 PAGE 505. On an agreement to be answerable for the price of goods sold to a third person 520 506. Against guarantor of mortgage; to recover deficiency after foreclosure 521 507. Allegation of assignment of guaranty 523 508. On a guaranty of payment, by a transferee of the principal obligation 524 509. Against guarantor, or so-called irregular indorser (before delivery) of a non-negotiable note 525 493. Against Guarantor of Payment of a Note.^ [Sustained in Westchester Mortg. Co. v. Mclntyre, 168 App. Div. 139, 153 N. Y. Supp. 437.] I. That on or about the day of , 19 , one M. N. made and deUvered to plaintiff his promissory note, of which the following is a copy [&et forth copy of note; or, may plead the legal effect as in Form 331]. II. That contemporaneously with the delivery to plaintiff of said note, defendant made and delivered to plaintiff his written guaranty of payment of said note of which the fol- lowing is a copy: [set forth copy, which in the precedent was substantially as follows:] "This is to certify that the undersigned, for value re- ceived, hereby guarantees Company the payment of a note for dollars, dated on or about , 19 , made by to said Company, payable sixty days after date with interest. It is hereby consented that the time for the payment of said note may be extended by one or more extensions, [provided such time of payment is not extended to a time later than , 19 ,] and it is consented that such extension be without notice to the under- signed. "Dated , 19 . "[Signed] Y. Z." III. That in consideration of said guaranty, and in re- ^ If the maker fails to pay at ma- demand, or notice to defendant turity the guarantor becomes im- guarantor. West. Mort. Co. v. Mc- raediately liable. Catsk. Nat. Bank Intyre, supra. V. Dumary, 206 N. Y. 550. It is not See, generally, the notes to next necessary to allege presentment, form. 506 Abbott's Forms of Pleading liance thereon, plaintiff [state his action thereon, as:] dis- counted said note and paid to said M. N. the amount thereof less discount. IV. That said note was not paid at its maturity/ and de- fendant has paid no part thereof. Wherefore [etc., demand of payment]. 494. Against Guarantor of Payment of Debt Contem- poraneously Contracted.^ [Sustained in Cordier v. Thompson, 8 Daly (N. Y.), 172.] I. That on or about the day of , 19 , ' Non-payment by the principal must of com'se be alleged. Delaware Co. Nat. Bank v. King, 109 App. Div. 553, 95 fr. Y. Supp. 956. *See, also, complaints quoted in Del. Co. Nat. Bank v. King, 109 App. Div. 553, 95 N. Y. Supp. 956; Levy D. Cohen, 103 App. Div. 195, .92 N. Y. Supp. 1074; Etz v. Place, 81 Hun, 203, 30 N. Y. Supp. 765. It was held by the court that under the terms of this guaranty demand on the guarantor need not be alleged, nor, it seems, notice of the default of the principal. See, also, CatskiU Nat. Bank v. Dumary," 206 N. Y. 550; Barhydt v. Ellis, 45 N. Y. 110; Wood, etc., Co. V. Farnham, 33 Pac. Rep. 867. But where the principal debtor was a municipal corporation, and its warrants were payable at a certain office, it was held that a complaint must aver presentment for payment at that office. Greely v. McCoy, 3 So. Dak. 624, 52 N. W. Rep. 1050. If the guaranty is one of general performance, or pajonent, it is an absolute undertaking, and it is not necessary to allege the exhaustion of remedy or any proceeding taken against the principal debtor. JacOcka V. Dessar, 129 App. Div. 286, 113 N. Y. Supp. 324; Levy v. Cohen, i03 App. Div. 195, 92 N. Y. Supp. 1074; Helios-Upton Co. v. Thomas, 96 App. Div. 401, 89 N. Y. Supp. 222, aff'd 184 N. Y. 585; Westch. Mort. Co. V. Mclntyre, 168 App. t)iv. 139, 153 N. Y. Supp. 437. See also notes to Form 500, upon a guaranty of collection. If the guaranty be of "payment and collection" the creditor may elect to proceed against either the prin- cipal or the guarantor, upon default of payment. Loos v. McCormack, 107 App. Div. 8, 93 N. Y. Supp. 1088; Tuton v. Thayer, 47 How. Pr. (N. Y.) 180. The consideration for the guaranty must appear upon the face of the writing, expressly or by fair implica- tion. Brum V. Gilbert, 50 App. Div. 430, 64 N. Y. Supp. 144. It sufficiently appears by a statement therein that the guaranty was "for value received." Greene v. Odell, 43 App. Div. 494, 60 N. Y. Supp. 78. A statement of the consideration need not be included in the instru- ment itself, but may be established from any other writings. Cahill Iron Works v. Pemberton, 30 Abb. N. C. 450, 27 N. Y. Supp. 931. Actions on Guaranties 507 at , at the instance and request of one J. F., and in consideration of the defendant's guaranty of payment there- tofore made ^ and as hereinafter set forth, plaintiff loaned and advanced unto said J. F. the sum of dollars. II. That at the time of the making of such loan and ad- vance of money, to wit, on said day of , 19 , said J. F. executed and delivered a certain instrument in writing^ bearing date on that day, wherein and whereby he acknowledged indebtedness to plaintiff of the above- mentioned sum of dollars, and agreed to return or repay the same within two years from the date thereof, to wit, the day of , 19 , and the defendant * then and there, in writing on the said instrument, and in con- sideration that plaintiff would make said loan, guaranteed imto said plaintiff the payment thereof, on the part of said J. F.; and the said acknowledgment of debt by the said J. F., and defendant's said guaranty to pay the same were, prior to the loan of said sum of dollars by said plaintiff, duly executed and deUvered to him. III. That the said sum of dollars was not paid by the said J. F. on the day whereon the same was due and pay- able, to wit, the day of , 19 , [of which due notice was given to the defendant]. ' ^ If the guaranty is not alleged De Reske v. Duss, 99 App. Div. to be a part of, and precedent to or 353, 91 N. Y. Supp. 221; Cahill concurrent with, the principal trans- Iron Works v. Pemberton, 48 App. action, a valuable consideration for Div. 468, 62 N. Y. Supp. 944, aff'd the guaranty should be alleged. 168 N. Y. 649. See next form; Kratenstein v. Bikoff, ' If two or more make a joirit 127 App. Div. 72, 111 N. Y. Supp. guaranty, they must all be joined, 250. If the principal obligation has even though the guaranty divides been . entered into, a subsequent and limits their individual liability, promise would not be supported by Del. Co. Nat. Bank v. King, 1Q9 App. it, -though the promise were made Div. 553, 95 N. Y. Supp. 956; Alpaugh concurrently. See Petze v. Leary, v. Wood, 53 N. J. Law, 638. 117. App. Div. 829, 102 ,N. Y. Supp. ' In the case of an absolute guar- 960. If they are made concurrently anty, — i. e., an underta,king that the and as a part of one transaction, debtor shall pay within a given time, the consideration for the principal and if not, that the defendant will obligation supports the guaranty, himself pay it, — demand on the 508 Abbott's Forms of Pleading IV. That [payment thereof has been heretofore duly de- manded of defendant,' but] defendant has paid no part of principal and notice to the guarantor is not necessary. . West. Mort. Co. V. Mclntyre, 168 App. Div. 139, 153 N. Y. Supp. 437; Barhydt v. Ellis, 45 N. Y. 110; Brown v. Curtis, 2 id. 227; Allen v. Rightmere, 20 Johns. 365; Cordier v. Thompson, 8 Daly (N. Y.), 172; Dearborn v. Sawyer, 59 N. H. 95. Where one guaranties the act of an- other, though such act be on condi- tion, his liability is commensurate with that of his principal, and he is no more entitled to notice of the default than the latter, unless the act is beyond his inquiry. Douglass V. Rowland, 24 Wend. (N. Y.) 35. On a general guaranty that the debtor will pay, demand upon the debtor is not necessary to fix the li- ability of the surety. Clark v. Bur- dett, 2 Hall (N. Y.), 197; Union Bank «. Coster, 3 N. Y. 203. See, generally, the notes to Form 500. An undertaking indorsed on a note: "For value received I hereby guarantee the payment of the within note, waiving demand and protest," is not merely a guaranty that the note shall be paid by the maker, but an original promise to pay it; and in an action thereon the maker's insolvency, or plaintiff's efforts to collect the note of the maker, need not be alleged. Wood Mowing, etc., Co. V. Faraham, 1 Okla. 375, 33 Pac. Rep. 867; Vetter v. Welz, 143 App. Div. 121, 127 N. Y. Supp. 1069. Where one guaranties to make sat- isfaction, if it cannot be obtained in a reasonable time from his principal, a demand on the principal is not neces- sary, if it be shown thai it would have been useless because he was insolvent. Morris v. Wadsworth, 11 Wend. (N Y.) 100. See, also, Cooke v. Nathan, 16 Barb. (N. Y.) 342. Where the guaranty provides that plaintiff shall use due diligence in the coDection of the debt guaranteed, an allegation that plaintiff used due dili- gence was held to be equivalent to an averment that he pursued the course which the law iinposed on him to charge the guarantor. Clark v. Kel- logg, 96 Mich. 171, 55 N. W. Rep. 667. But the safer plan would be to allege the facts from which the court can see that due diligence has been exercised. To show due diligence in suing in another State, on a contract, the statute laws of such State regulating the contract must be averred, unless the pleader can rely on the common- law rules. Mendenhall v. Gately, 18 Ind. 149. If one guaranties a debt to be col- lected by himself, the complaint need not show demand on the prin- cipal debtor; otherwise in a complaint against one who merely guaranties a debt which the creditor is to col- lect. Milliken v. Byerly, 6 How. Pr. (N. Y.) 214. To nkaintain an action upon a guaranty that a judgment is collecti- ble, proceeding for the collection in the due course of law is a con- dition precedent, and its perform- ' If the guarantor's promise is to pay the debt on demand, the demdnd is of the substance of the promise, and must be alleged and proved. First Nat. Bank v. Story, 200 N. Y. 346. Actions on Guaranties 509. the said sum of dollars and the whole thereof is still due and unpaid, with interest thereon from the day of , 19 ." Wherefore [etc., demand of judgment]. 495. On a Guaranty of Payment of a Precedent Debt.'" I. That on or about the day of , 19 , one M. N. was indebted to plaintiff in the sum of dol- lars, which sum was then [or, on or about the day of , 19 , became] due and payable to the plaintiff. II. That on said day the defendant, in writing acknowl- edging value received by him from plaintiff, guaranteed that said M. N. would pay said indebtedness on or before the day of , 19 , [or otherwise according to the terms of the giiaranty].^^ ance or excuse must be alleged. Mains v. Haight, 14 Barb. (N. Y.) 76. If the guaranty is to pay if the principal do not pay on demand, a demand on the principal must be averred and proved. First Nat. Bank v. Story, 200 N. Y. 346. And it is only necessary to show a suit against the principal where the terms of the guaranty necessarily imply that the liability of the guarantor is de- pendent upon that. Morris v. Wads- worth, 17 Wend. (N. Y.) 103; affirm- ing 11 id. 100; Backus v. Shipherd, Id. 629; but see Cooke v. Nathan, 16 Barb. (N. Y.) 342. Where the guaranty is to pay the debt of P. on request, if he does not pay, a special request of the defend- ant must be averred and proved. Bush ». Stevens, 24 Wend. (N. Y.) 256; Nelson v. Bostwick, 5 Hill (N. Y.), 37; Douglass v. Rathbone, Id. 143. Where the guaranty was a -guar- anty "to the holder of the within bond . the punctual payment of the principal and interest thereof when and as the same shall become due and payable," a complaint on cer- tain coupons against the guarantor was held insufficient which merely alleged that plaintiff was the owner and holder of the coupons. Clokey V. Evansville & T. H. R. Co., 16 App. Div. 304, 44 N. Y. Supp. 631. ' Non-payment by the guarantor must be alleged, in addition to the breach by the principal debtor. Del. Co. Nat. Bank v. King, 109 App. Div. 553, 95 N. Y. Supp. 956. '" Seo, generally, the notes to Form 494. '' In the next form the considera- tion is specifically alleged, and prob- ably is the preferable method to follow. But an allegation that an, obligation was assumed "for value received" sufficiently shows a con- sideration (see note on p. 21 on alleging consideration), and an in- strument of guaranty containing, such a recital of consideration is in form sufficient to charge liability. Greene v. Odell, 43 App. Div. 494, 60 N. Y. Supp. 78. 510 , Abbott's Forms of Pleading III. That no part of said indebtedness of dollars has been paid by said M. N., nor by the defendant.'" Wherefore [etc., demand of judgment]. 496. The Same; Alleging the Specific Consideration for the Guaranty. I. [Allege the debt, substantially as in preceding form.] II. That thereafter, and on or about the day of , 19 , and in consideration that plaintiff would forbear commencing any action against said , [debtor] for months thereafter, and would extend to him a further credit for such period, defendant guaranteed to plaintiff the payment of said loan. III. That plaintiff duly performed all the conditions on his part, and forbore commencing any action against said [debtor] for months and extended to him a further credit for such period." IV. [Non-payment by debtor and guarantor, as in paragraph III of preceding form.] 497. Against Guarantor of Payment of Bond; Principal Sum Due Because of Non-payment of Interest In- stallment." I. That on or about the day of , 19 , at , one M. N. covenanted with the defendant [or, with one O. P.] under his hand and seal, to pay to the de- fendant [or, said O. P.], his executors, administrators or assigns, on the day of , 19 , the sum of dollars, with interest thereon to be computed from the said day of , 19 , at the rate of per 12 Allege demand upon guarantor if " Adapted from Stein v. Whitman, his agreement was to pay on de- 209 N. Y. 576, reversing 156 App. mand. First Nat. Bank-!). Stery, 200 Div,. 861, 142 N. Y. Supp. 4, and N. Y. 346. holding the complaint demurrable "Performance by plaintiff of the on the ground only that^the maker condition forming the consideration of -the bond and- the guarantor could must be alleged. Hall u. Little, 89 not be sued together. App. Div. 524, 85 N. Y. Supp. 653. Actions on Guaranties 511 cent per annum, and to be paid on the days of and in each year thereafter; and it was in said bond expressly agreed that the whole of said sum of dollars should become due at the option of the said defendant [or, said 0. P.], or his executors, administrators or assigns, after default in the payment of any installment of interest as aforesaid for days after the same became due and payable. II. Thereafter the defendant, by an instrument in writing dated the day of , 19 , under his hand and seal, [duly assigned said bond to the plaintiff for value, and thereby and] for a consideration therein expressed, guaranteed to the plaintiff the payment of said bond accord- ing to its tenor. III. That said M. N. failed to comply with the condition of the said bond by omitting to pay the sum of dol- lars interest thereon which became due and payable on the day of , 19 , and that more than days have since elapsed, but said sum remains unpaid; that plaintiff elects that the whole principal sum be immedi- ately due and payable. IV. That no other action or proceeding has been had, at law or in equity, or otherwise, for the recovery of the said sum secured by the said bond, or any part thereof.'^ V. That no part of the said bond had been paid, and that plaintiff is now the sole holder and owner thereof. Wherefore .[etc., demand for judgment]. 498. Against Corporation Guarantor of Payment of Cou- pons on Negotiable Bonds. ^^ I and II. [After alleging the corporate capacity of defend- " Desirable only when the bond Erie Ry. Co., 12 N. Y. Weekl. Dig. is secured by a mortgage. See Cqde 457, where, however, no question Civ. Pro., §§ 1628-29. of pleading was involved on appeal. If the action is brought for de- In Clokey v. Evansville, etc., R. ficiency after foreclosure, use Form Co., 16 App. Div. 304, 44 N. Y. Supp. No. 506. 631, where the guaranty in question " From complaint in Racey v. was substantially similar to the one 512 Abbott's Forms of Pleading ant, and of the maker of the bond, the complaint should allege the making of the bond as informs under Chapter XVI on Bonds.] III. That on the day of , 19 , the defendant, by H. N. 0., its secretary duly authorized so to do by resolution of its board of directors, and under its cor- porate seal, duly indorsed and executed upon each of said bonds, which are hereinafter specified, the following agree- ment, viz. : [set forth copy of guaranty, or may annex and refer thereto], "In consideration of the provisions of a contract of even date, for the use of the B., H. and E. R. R. by the E. R. Company, the E. R. Company hereby agrees with the holder of this bond, that the several interest coupons hereto at- tached shall be paid as they respectively mature. "Witness the seal of the E. R. Company and the signature of [l. s.] its Secretary, at the City of New York, the day of , A. D. 19 . "E. R. Co., by "H. N. O., "Secretary." IV. That at the time of the execution by the defendant of such contract, there were attached to each of said bonds interest coupons, each for the payment of dollars, interest on each succeeding first days of January and July. V. That of the said series of bonds, numbered respectively , with the interest coupons attached thereto, were, after their issue, duly transferred by the B., H. and E. R. R. Company, for a valuable consideration to a bona fide purchaser, who, for a valuable consideration, trans- ferred them to the defendants, and thereafter the defendants duly guaranteed the payment of the interest upon said bonds, and of the interest warrants or coupons annexed thereto. VI. That thereafter the defendants sold and transferred i ' ■ given in the form, i. e., "to the holder leged that plaintiff is the holder and of the within bond," a complaint was owner of the coupons and failed to held insufficient which merely, al- allege his ownership of the bonds. Actions on Guaranties 513 the said bonds with the interest coupons thereto attached, and with its said guaranty indorsed thereon, for value re- ceived, to a bona fide purchaser, who purchased the same from the defendants in reliance upon the defendants' guaranty aforesaid, and they were thereafter, together with the cou- pons or interest warrants thereto attached, sold for value to the plaintiff, who purchased the same in reliance upon the defendants' guaranty aforesaid, and who thereupon became, and now is, the bona fide owner and holder thereof. VII. That the following described coupons or interest warrants, attached to the said several bonds, being in number, and bearing date , for dollars each, and payable by the terms thereof on the day of , 19 , were, on or about the day of , 19 , duly presented at the office of the B., H. and E. R, R. Company, in the city of New York, and pay- ment thereof duly demanded but payment was refused. VIII. That on or about the day of , 19 , and after the demand and refusal aforesaid, the plaintiff presented to the defendants the said coupons or interest warrants at their office in the city of New York, and de- manded payment thereof, and the same was refused." IX. That none of the said coupons or interest warrants have been paid, and the whole amount is due from the de- fendants to the plaintiff. Wherefore [etc., demand of judgment]. 499. Against Guarantor of the Ultimate Payment.** [Adapted from complaint in Hernandez v. Stilwell, 7 Daly (N. Y.), 360.] I. That one M. N., on or about the day of " Under the terms of the guaranty cited that demand or other effort pleaded in the form, neither pre- to collect, and notice to defendant sentment, demand, or notice to de- of the principal's default, must be fendant guarantor, is essential to the averred. The court arrived at this suflSciency of the complaint. See conclusion as the only method of note on this point to Form 494. giving effect to the word "ulti- " It was held in the case above mate." 514 Abbott's Forms of Pleading , 19 , made his bond, dated on said day, for the pay- ment of dollars, one year after date, to wit, on the day of , 19 . II. That the defendant [simultaneously,] for one dollar, and other good and valuable consideration, guaranteed the- ultimate payment of the sum named therein, together with interest and all lawful charges, or so much thereof as should be due and owing. III. That prior to the day of , 19 , there had been paid of the sum named in said bond, dollars as interest, and dollars as principal. IV. That on or about the said day of , 19 , plaintiff duly demanded of said M. N. payment of the balance due upon said bond, together with the accrued in* terest thereon; that said M. N. refused to pay any part thereof, of which the defendant had due notice, nor has the defendant paid the same. V. That there is now due on said bond to plaintiff dollars, with interest thereon from Wherefore [ etc., demand of judgment]. 600. Against Guarantor of the Collection of a Debt.^' [I and II as in Forms 494} 495 or 499,^" averring, however, the contract of guaranty a^ one for collection.]- III. That said [principal] did not pay said [note] at ma- tvu-ity thereof; that plaintiff used due diligence " in seeking '' Under this guaranty plaintiff anty was given upon a then con- must aver and prove that he has ex- tracted, or previously existing, debt, hausted all the ordinary legal rem- ^^ Plaintiff may aver " that he used edies against the principal debtor due diligence," but cannot show an (Blanding v. Cohen, 101 App. Div. excuse for not so doing, or defend- 442, 92 N. Y. Supp. 93, aff'd 184 ant's waiver thereof, under such an N. y. 538; Craig v. Parkis, 40 N. Y. averment. Clark v. KeUogg, 96 181; Mead v. Parker, 111 id. 259; Mich. 171, 55 N. W. Rep. 667. Greeley v. McCoy, 3 So. Dak. 624, 52 Insolvency of the principal is no N. W. Rep. 1050); and must show excuse for failure to secure judgment reaionable diHgehce in using' such against principal. Phillips v. Lindley, remedies. Salt Springs Nat. Bank v. 112 App. Div. 283, 98 N. Y. Supp. Sloan, 135 N. Y. 371. 423, aff'd 188 N. Y. 606; Salt Springs ™ According to whether the guar- Nat. Bank v. Sloan, 135 N. Y. 371, Actions on Guaranties 515 collection thereof from said [principal] and that on or about the day of , 19 , commenced an action on said [note] in the Court against said [principal], and On or about the day of , 19 , a judg- ment was duly given in said court in said action in favor of plaintiff and against said [principal] for the sum of dollars. IV. That on or about the day of , 19 , plaintiff caused an execution upon said judgment to be is- sued and delivered to the sheriff of county, where said [principal] then resided and now resides, but that said sheriff has heretofore returned said execution wholly unsatis- fied, of all of which said defendant has had notice. V. That although payment thereof has been duly de- manded of defendant, he has paid no part of said sum of dollars. [VI. That defendant had notice of the commencement of said action against said — principal — and an opportunity to defend the same.] ^^ Wherefore [etc., demand of jvdgment]. 601. On Guaranty of Yearly Dividend on Stock. ^^ I. That for some time prior to the making of the agreement hereafter mentioned, the plaintiff and defendants were re- spectively engaged in the business of transporting freight between the cities of and , in competition with each other. II. That on or about ,19 , at the city of , the plaintiff made and entered into a certain agree- ment, in writing, with said defendants, J. S. H., G. W. C. and '^ If this allegation is sustained by *' From complaint in Lorillard v. the proof, the judgment against the Clyde, 122 N. Y. 42, 25 N. E. Rep. principal is conclusive upon the 292, where it was held that a recovery guarantor. Blinding r. Cohen, 101 under the guaranty for the dividend App. Div. 442, 92 N. Y. Supp. 93, for one year does not bar a subsequent aff'd 184 N. Y. 538. And the costs action for a subsequent year's div- of the prior action are recoverable 'dend. against the guarantor. Id. 516 Abbott's Forms of Pleading T. C, under the name and form of W. P. C. & Co., a copy of which is annexed and made part of this complaint as Exhibit A. III. That the plaintiff thereby agreed to consolidate his said business with that of said defendants, and for that purpose to join with them in the formation of a corporation to be called The Co., with a capital of dollars, one-half of which should be subscribed and paid for by the plaintiff and one-half by defendants; and plaintiff thereby agreed to transfer his business therein mentioned to the said corporation, and give defendants the manage- ment and control of said corporation and business and pay a commission therefor; and the plaintiff thereby further agreed that he would not be associated in any company owning a steam water line between said and , or in opposition to the several lines of W. P. C. & Co. therein named, for a period of seven years from , 19 , when said agreement was to go and did go into effect. IV. That in consideration thereof and in order to induce this plaintiff to enter into said agreement, the said defend- ants, J. S. H., G. W. C. and T. C, under the firm name of W. P. C. & Co., on their part guaranteed and agreed to pay to this plaintiff in each and every year of the term of seven years succeeding said day of > 19 , divi- dends of not less than seven per cent upon the par value of the stock of said corporation, amounting to the sum of dollars, to be subscribed and paid for by this plaintiff as aforesaid.^* V. That in piu-suance of said agreement said corporation was duly organized under the laws of the State of , by the name of The Co., on or about , 19 , with a capital stock of dollars. ^* In Crook v. Scott, 65 App. Div. yearly, in the event dividends at such 139, 72 N. Y. Supp. 516, aff'd 174 amount were not paid by the corpora- N. Y. 520, on opinion below, it was tion, was not within the Statute of held that a promise to pay an amount Frauds as a promise to answer for the necessary to make up an 8% dividend debt or default of the corporation: Actions on Guaranties 517 VI. That in further pursuance of said agreement the plain- tiff subscribed, paid for, and has ever since owned ^^ and held shares of the stock of said company, of the par value of dollars each, amounting in all to the sum of dollars; transferred his business and said steamers mentioned in said agreement to said company, and in all respects fully performed said agreement on his part; and the defendants have since had and exercised management of said corporation and business. VII. That no dividend upon the stock of said company has ever been declared or paid by said company, and the defendants have had due notice thereof. VIII. That the dividends or sums guaranteed and agreed to be paid by said agreement for the year from , 19 , to , 19 , have not been paid, nor any part thereof, although the payment thereof was duly demanded before the commencement of this action, and the defendants are, and each of them is, now justly indebted to the plaintiff therein in the sum of dollars, with interest thereon from , 19 . Wherefore [etc., demand of judgment]. 602. Against Guarantor of Payment of Rent.^* [Sustamed in Wood v. Husted, 83 App. Div. 174, 82 N. Y. Supp. 631.] I. That on or about the day of , 19 , one M. N., by agreement in writing with this plaintiff, hired of the plaintiff anner] made and deUvered to the plain- tiff, C. D., his bond conditioned for the payment to said plaintiff, C. D., of the sum of dollars, and thereupon made and delivered to said plaintiff, C. D., a mortgage upon the said premises to secure the payment of said sum, which said mortgage contained the covenant of said A. B. [owner] to keep the said premises insured against damage by fire for the benefit of said plaintiff, C. D. IV. That thereupon, and in comphance with his said covenant, the said plaintiff, A. B., made appUcation to the defendant for the poUcy of insurance hereinafter mentioned [continue as in paragraphs III and IV of Form 510, to the end adding loss, if any, to be paid to the plamtiff, C. D., as his mortgage interest may appear, may add a copy, alleging — a copy of which said poUcy and the du-ection for payment is hereunto annexed, marked "A," and made a part hereof]. V. That said bond is wholly unpaid, and that the plaintiff, C. D.,is the owner and holder thereof and of the saidmortgage, [Allege destruction of premises, amount of loss, performance of conditions precedent,^* and non-payment, as in Form 510.] Wherefore [etc., demand of judgment]. faction between insurer and owner parties plaintiff does not raise the ob- will not affect the mortgagee's rights jection. Kent v. Aetna Ins. Co., 84 under the policy. Hathaway ij. Orient App. Div. 428, 82 N. Y. Supp. 817, Ins. Co., 134 N. Y. 409. The mort- disapproving on this point Besant ih gagee ought not to be allowed to sue Glens Falls Ins. Co., 72 App. Div. without making the mortgagor a 276, 76 N. Y. Supp. 35. party, unless by the terms of the pol- Nor is his complaint bad on de- icy the entire loss is payable to' him murrer for insufficiency. Heilbrunn (not, as is usually provided in current v. Germ. All. Ins. Co., post. pohcies, only "as his interest may If the policy by its terms isTjayablc appear"). In Cone v. Niagara Fire to two persons "as interest may ap- Ins. Co., 60 N. Y. 619, and Dakin v. pear," one of them cannot sue to Liverpool, etc., Ins. Co., 77 id. 600, recover the whole amount without the entire loss was made payable to negativing the right of the other to re- the mortgagee, and it_was held that cover any portion. Besant v. Glens he might recover the excess.as trustee Falls Ins. Co., 72 App. Div. 276, 76 for the mortgagor. See reasoning in N. Y. Supp. 35. Lewis and O'Neil cases, supra. But a -'' The mortgagee suing alone is not demurrer on the ground of defect of required to allege or prove that \u: 538 Abbott's Forms of Pleading 521. Complaint on "Binding Slip." " [Allege defendant's corporate capacity, and plaintiff's in- surable interest in the property damaged by the fire, as in para- graphs I and II of Form 510.] III. That on or about the day of , 19 , at , defendant, by its duly authorized agent, for value received duly executed and delivered to plaintiff, in the form known as a Binding Slip or Binder, an agreement in writing to insure plaintiff's said property to an amount not exceeding dollars against all loss or damage by fire for the term of * , beginning on the day of , 19 , and defendant agreed to execute and deliver to plaintiff its policy of insurance, in the usual and standard form required by this State, insuring said property in said sum of dollars during said term beginning on said day of , 19 . IV. That plaintiff, at the time of the deUvery to him of said binding slip, then and there agreed to pay to defendant at the time of the delivery of said policy of insurance a pre- mium of dollars, said payment to be reckoned as in part covering the premium for the period between the de- livery of said binding slip and the deUvery of said poUcy, and said pohcy to be dated back to the day of the deUvery of said binding slip. V. That defendant by its policies of insurance issued in the usual and standard form of this State promises and agrees to insure against all direct loss or damage by fire, such loss or damage not exceeding the amount for which the insurance is issued, and to be ascertained or estimated or the mortgagor gave notice of loss If the owner refuses to make proofs or furnished- proofs of loss to the in- of loss, the mortgagee is entitled to surer, under the present (1917) form do so. Moore v. Hanover Fire Ins. of standard policy and mortgagee Co., 71 Hun, 199, 24 N. Y. Supp. clause. Heilbrunn v. Germ. All. Ins. 507. Co., 140 N. Y. 557, 125 N. Y. Supp. «' Adapted from complaint in Un- 374, aff'd 202 N. Y. 610; McDowell derwood v. Greenwich Ins. Co., 161 V. St. Paul Fire, etc., Co., 207 N. Y. N. Y. 413. 482. Insurance Policies 539 according to the actual cash value at the time any loss or damage so occurs, and the amount of such loss or damage having been thus determined, said amount shall be payable within sixty days after due notice and proofs of loss have been received by the defendant. VI. That after said binding sUp was so deUvered to plain- tiff and the said agreement for insurance so made by de- fendant, and within the time of such insurance, to wit, on or about the day of , 19 , [continue as in paragraph V of Form 510]. VII-X. [As in paragraphs VI-IX of Form 510.] Wherefore [etc., demand for judgment]. 522. On an Agreement to Insure, Policy Never Having Been Delivered. ^^ I. [Incorporation and business of defendant, as in Form 510.] II. That on or about the day of , 19 , at , plaintiff made application to one M. N., who was the duly authorized agent of the defendant, for insur- ance against loss or damage by fire upon [certain merchan- dise, which was then the property of said plaintiff, consisting of scythes contained in the building. No. street in said city, occupied for storing said scythes, in said city.] That ™ This is adapted from the com- S. P. Hardwick v. Ins. Co., 20 Oreg. plaints in Hicks v. British Am. Ins. 547; 26 Pac. Rep. 840. Co., 162 N. Y. 284; Rockwell v. Hart- Under a complaint charging an ford Fire Ins. Co., 4 Abb. Pr. (N. Y.) executed contract of insurance and 179, where the right of action was an ineffectual attempt to cancel it, a sustained. It was held in the latter recovery cannot be permitted against case that where there is an agreement objection on proof of an agreement to insure and to deliver a policy, and to insure. Walrath v. Hanover Fire a loss occurs before the delivery of a Ins. Co., 216 N. Y. 220. policy, it is not necessary that the An agreement to renew a policy insured should proceed to compel the from year to year on payment of an delivery of a policy before he can re- annual premium, either party being at cover the insurance, but he may main- liberty to discontinue, is not within tain an action upon the agreement the Statute of Frauds. 19 N. Y. and the loss, taking judgment for 305. payment of the amount due only. 540 Abbott's Forms of Pueading the defendant, by its said agent, on said day, agreed to in- sure said [stock] for months from the said day, in the sum of dollars, for the consideration of dollars premium to be paid by plaintiff, and that the said defendants would execute and dehver to the said plaintiflf a poUcy of insurance in the usual form of policies issued by it, [and in the standard form for the State of New York], for the said sum of dollars, for the tierm of months from the said day. III. That plaintiff then and there paid to the defendant said premium, to wit, dollars [or, that it was agreed by plaintiff and defendant that plaintiff should pay said premium upon the dehvery of said poHcy].^ IV. That it was then and there agreed between the plain- tiff and the said defendant, that the said insurance in the sum of dollars, should be binding, on the part of the defendants for the term of months from said day of , 19 , and the said defendant then and there, in consideration of the premises, promised and agreed to and with the plaintiff, to execute and dehver to it, within a reasonable and convenient time, a pohcy in the said usual and standard form, insuring the said stock of goods in the said sum of dollars against loss and damage by fire, the insvirance to commence at noon on said day of , 19 , and continue for the said term of months. V. That the defendant, by its pohcy of insurance issued in usual form (among other things), promises and agrees [here set out legal effect of the contemplated policy as in para- graph V of Form 521, or^ that a copy of the defendant's usual pohcy of insurance except as to the name of insured, date, amoimt and term the;reof, is hereunto annexed marked "A" and made part heceof]. VI. That after the insurance was so made, and after the said promise to execute and dehver a pohcy in conformity "Payment of the premium at the time is not essential. Hardwick v. Ins. Co., supra. Insurance Policies 541 thereto, and within the said term of months, for which the plaintiff was so insm-ed, to wit, on the day of , 19 , the said stock of merchandise in the said building, mentioned and intended to be so insured, was damaged and in part destroyed [or, was totally destroyed] by fire; that the true and actual value of said stock of mer- chandise was dollars; that the same was then and at all times herein mentioned the property of said plaintifif, and that the said plaintiff thereby sustained loss and dam- age to the amount of dollars. VII. That said plaintiff duly performed all the condi- tions of said agreement and insurance on his part, and more than sixty days [or, otherwise as required by the poliqj,] be- fore the commencement of this action, to wit, on or about the day of ,19 ,^^ duly notified defendant that he claimed defendant was liable for the amount of the plaintiff's loss under said agreement to insure,^* and gave to the defendant due notice and proof of the loss as afore- said, and duly demanded payment of the said sum of dollars. [Or, in case defendant has repudiated liability upon its agree- ment and refused to accept proofs of loss, allege the fact, as: That immediately after the destruction of said merchandise plaintiff duly notified defendant of said fire, and made a request of defendant to be permitted to make and deliver proofs of loss under the requirements of the defendant's poUcies, but that said defendant wholly repudiated any liabihty to plaintiff, and refused to permit plaintiff to make said proofs of loss or to receive the same, and refused to 28 Where the complaint averred showing on the trial that the proper that the property insured was de- notice was given on the morning of stroyed by fire on the 20th of May, the twenty-first. Hovey v. American 1852, and that as soon as possible Mutual Ins. Co., 2 Duer (N. Y.), thereafter, that is to say, on the 24th 554. of May, 1S52, the plaintiffs gave no- ^ This is material when a waiver tice thereof to the defendants — held, of the requirements of the pohcy is that the plaintiffs were not precluded claimed. See Hicks v. British Am. by the terms of their complaint from Ins. Co., 162 N. Y. 284. 542 Abbott's Forms of Pleading deliver said policy of insurance, or to receive the premium therefor, although plaintiff has at all times been and is now ready and willing to pay the same upon receiving said poUcy.] VIII. That no part of said sum has been paid. Wherefore [etc., demand of judgment]. 523. On Policy of Re-insurance.*" I. [Allege corporate capacity, and the carrying on of insur- ance business, by both parties, as in Form 510.] II. That on or about the day of , 19 , at , plaintiff issued to one M. N. its policy of in- surance, in the standard form, numbered , duly executed by it, wherein and whereby for the sum of dollars premium paid to it by him, plaintiff insured said M. N. against all direct loss or damage by fire to an amount not exceeding dollars, for the term of , from the day of , 19 , to the day of , 19 , to the following described property [set out a descrip- tion of the insured property]. III. On information and belief, that at the time of the issuance of said policy and of the fire hereinafter mentioned said M. N. was and still is the owner of said insured property, and that the same exceeded in value the sum of dol- lars. IV. That on or about the day of , 19 , in consideration of the stipulations therein contained, and of dollars premium paid by the plaintiff to the de- fendant, the defendant duly executed and delivered to plain- tiff, at , its policy of insurance, wherein and whereby it re-insured plaintiff for a term of , from the day of , 19 , to the day of , 19 , ^ Adapted from the complaints in 84, where no question of pleading was Home Ins. Co. v. Cont. Ins. Co., 180 directly raised. N. y. 389; Cont. Ins. Co. v. Aetna As to proof required to sustain the Ins. Co., 138 N. Y. 16, and London, action, see Ins. Co. of Penn. v. Tel- etc, Ass. Co. V. Thompson, 170 N. Y. fair, 45 App. Div. 564, 61 N. Y. Supp. 322. Insurance Policies 543 against all direct loss or damage by fire, to an amount not exceeding dollars, on plaintiff's interest or liability as insm-er under its said policy to said M. N. ; that defend- ant's said policy of reinsurance was numbered , and covered the hereinbefore described property; that said policy, so issued by defendant, was therein expressed to be subject to the same risks, conditions, violations, indorsements and assignments as were or might be assumed or adopted by plaintiff, and the loss if any was payable pro rata at the same time and in the same manner as by plaintiff. That said policies of insurance and reinsurance were in the form and contained the terms and conditions of the New York Standard Form of policies of insurance. V. On information and belief, that on or about the day of , 19 , a fire occurred upon said premises before mentioned, and that said fire did not happen from any of the causes excepted by the terms of either of the aforesaid policies, and that by said fire the said [insured property] belonging to the said M. N. [and then located upon said premises] was destroyed [or, damaged] by fire to an amount in excess of dollars; that the reasonable and necessary expenses attending upon the adjustment of the said loss by plaintiff under its said policy were the sum of dollars, and that plaintiff paid such sum therefor. VI. On information and beUef that said M. N. duly per- formed all the conditions of said policy of insurance issued to him on his part, and that there became justly due and owing to him from plaintiff the sum of dollars, which said sum plaintiff on the day of , 19 , paid to said M. N. in settlement of its liability to him upon its said policy of insurance. VII. That plaintiff rendered to defendant due and timely notice and proofs of said loss, in the form required by said policy of reinsurance, more than sixty days prior to the commencement of this action, and plaintiff has duly per- formed all the conditions of said policy of reinsurance on its part; that there is now justly due and owing to plaintiff 544 Abbott's Forms of Pleading from defendant thereon the sum of dollars, and that payment thereof was duly demanded of defendant prior to the commencement of this action but that no part thereof has been paid. Wherepore [etc., demand for judgment]. 524. On Policy of Co-operative Fire Insurance Company." I. [Allegation of defendant's, corporate capacity, and busi- ness, as in Form 510, continuing:] that plaintiff, at. said times, was a member of the defendant, and at the time of the fire hereinafter mentioned plaintiff had paid all of his dues to the defendant and was a member thereof in good standing. II to VI. [Allegations of plaintiff's ownership of insured property, and the defendant's issuance of policy and its pro- visions, may he adapted from paragraph II and III of Form 510, with such changes as may be necessary. Allegations as to the fire, and damage caused thereby, may be adapted from Paragraphs V and VI of that Form.] VII. [Show observance by plaintiff of any requirement as to appraisal of amount of loss. In the precedent it was alleged:] That immediately after said fire plaintiff duly notified defendant in writing of the fact of such loss and damage, and within ten days thereafter a member of the defendant designated by the president, and another member desig- nated by plaintiff, and the manager of the defendant, pro- ceeded to the place of the loss for the purpose of determining the amount of the same; that it was provided by said agree- ment of insurance that such adjusters should determine the amount of the loss within five days from the time of their meeting for such purpose, but that said adjusters hiave never determined the amount of said loss, and have never reported their estimate thereof, and that the executive committee of the defendant has not liquidated the loss so suffered by plaintiff. '' Adapted from Morgan v. Merch. Ins. Assoc, 52 App. Div. 61, 64 N. Y. Supp. 873. Insurance Policies 545 VIII. [Where provisions of such purport exist in the de- fendant's by-laws:] That defendant at the time of the said loss had and ever since has had in its treasury a sufficient amount of money available for the payment to plaintiff of said loss; and that if defendant did not have on hand at the time of the loss a sufficient amount of money available for that pm-pose that it has long since had time to raise by assessment, as provided by its by-laws, the necessary amount to liquidate plaintiff's said loss. IX. That in and by said agreement of insm-ance, defend- ant was to Uquidate and pay said loss to plaintiff within a reasonable time after the same occurred. X. That plaintiff has duly performed all the conditions of said agreement of insiurance on his part. XI. That more than a reasonable time has elapsed since said loss, but that no part thereof has been paid by defend- ant. Wherefore [etc., demand for judgment]. 626. To Set Aside Award of Appraisers and Recover Actual Damage. '^ [Paragraphs I to VI, as in Form 510, continuing •] VII. That it was among other things provided in said policy of insurance, that in the event of disagreement as to the amount of loss [quote the provisions as to appraisal]'; that after said fire, defendant notified plaintiff that it did not agree with plaintiff as to the amount of said loss, and required an appraisal thereof, and that it designated one M. N. as its appraiser and demanded that plaintiff should designate an appraiser; that thereupon plaintiff designated " See, Bradshaw v. Agric. Ins. Co., Supp. 44. Compare Billinger v. Ger- 137 N. Y. 137; McClave v. Gibb, man Ins. Co., 95 App. Div. 262, 157 id. 413. If the court refuses 88 N. Y. Supp. 1020. If two com- to set aside the award, it should panies, insuring under separate pol- nevertheless not dismiss the action icies, unite in the appraisal, they but give judgment for the amount may be sued jointly to set it Mde. of the award. Maher v. Home Ins. Mayer v. Phoenix Ass. Co., 124 App.. Go;> 75 App. Div. 226, 78 N. Y. Div. 241, 108 N. Y. Supp. 711. 546 Abbott's Fokms of Pleading one 0. P. as his appraiser, and thereafter said two appraisers selected one Q. R. as umpire. VIII. [Allege fully the facts upon which plaintiff relies to overthrow the appraisal; the following will be suggestive merely: That defendant, for the purpose of inducing plaintiff to consent to its selection of said M. N. as one of the appraisers, falsely and fraudulently represented to plaintiff that said M. N. was not in the insurance business, or in any way con- nected therewith, and was entirely impartial and disinter- ested, and had never been employed as an appraiser; whereas in truth and in fact said M. N. was not impartial and dis- interested, but on the contrary had theretofore been and was then* in defendant's employ as an appraiser, and had been employed by defendant and other insurance companies as appraiser for many years, and had been for many years in the insurance business as a professional appraiser and thereby directly connected with and interested in said business; that plaintiff would not have consented to the selection of said M. N. except for the false representations aforesaid, [which defendant knew to be false when made to plaintiff]. 5^ IX. Plaintiff further alleges that said appraisers met alone and without notice to plaintiff, and proceeded without deUberation and without evidence of any kind, and without endeavoring to obtain accurate knowledge or information as to the destroyed property and its value, and without questioning plaintiff in regard thereto; that plaintiff duly requested permission to be present at said appraisal, but was informed by said M. N. that his presence was unnec- essary and improper and would not be allowed; on informa- tion and belief that said appraisers did not determine or attempt to determine the actual cash value of and the loss or damage by fire to the aforesaid property, but on the con- trary attempted to appraise said property in lump and with- out detailed knowledge or information concerning the same.'* , " Held unnecessary in Kaiser v. '* These facts are adapted from Hamburg, etc., Ins. Co., post. Kaiser v. Hamburg, etc., Ins. Co., 59 Insurance Policies 547 X. That on or about the day of , 19 , said appraisers made a pretended award, wherein they pre- tended to appraise the value of said destroyed property at the sum of dollars, and the loss or damage to plain- tiff by reason of said fire at said sum; that said award was grossly inadequate,^' unfair and improper, and was the result of a prior corrupt understanding between defendant and its said appraiser M. N., to procure an award for less than the actual value of said property. Wherefore [demand of judgment for the setting aside of the appraisal, and the recovery of judgment for the amount of the loss].^^ 526. Against Attorneys in Fact upon Lloyds Policy." A. B., plaintiff, vs. W. X. and Y. Z., as attorneys in fact of and representing [names of individual underwriters], defend- ants. I. On information and belief, that prior to and at the times hereinafter mentioned, [state the names of the individual underwriters] were separate insurers and underwriters, associated and doing business under the name and style of ["The Lloyds of "] in insuring against loss or dam- age to property by fire. App. Div. 525, 69 N. Y. Supp. 344, 3« Remington Co. v. London Ass. aff'd 172 N. Y. 663. For other in- Co., 12 App. Div. 218, 43 N. Y. Supp. stances see N. Y., etc., Assoc. ;;. 431. Manch. Ins. Co., 94 App. Div. 104, " Adapted from the complaints in 87 N. Y. Supp. 1075; Schmitt Bros. Peabody v. Satterlee, 166 N. Y. 174; V. Boston Ins. Co., 82 App. Div. 234, Compton v. Beecher, 17 App. Div. 38, '81 N. Y. Supp. 767; fltohen v. Atlas 44 N. Y. Supp. 887, and Leiter v. Ass. Co., 163 App. Div. 381, 148 N. Y. Beecher, 2 App. Div. 577, 37 N. Y. Supp. 563. Supp. 1114, 3 Anno. Cas. 116. See " A substantial difference suffices, notes to next form. Kaiser v. Hamburg, etc., Ins. Co., supra. 548 Abbott's Forms of Pleading II. That during the times hereinafter mentioned, thg de- fendants above named, composing the firm of , were the attorneys in fact for all of such separate under- writers composing the said Lloyds; that each of the afore- said underwriters was duly represented by and acted through said defendants, that their business as such underwriters was conducted and managed by said defendants as their duly authorized attorneys in fact,, and that said defendants had authority in the names of said underwriters to issue insurance for them, and upon their responsibility, to receive notices and proofs of loss, and to adjust and settle such loss, and to act for and in the names of said underwriters, and do each and everything necessary and appertaining to the busi- ness of insurance in which they were engaged as aforesaid.'* III. That on or about the day of , 19 , at , in consideration of the sum of dollars premium, the aforesaid underwriters, by an instrument in writing duly subscribed by them, being their policy of in- surance No. , each acting through said defendants as their said attorneys in fact, agreed to insm-e plaintiff to the amounts set opposite their names, and not exceeding in the aggregate the sum of dollars, for the term of [etc., continuing as in paragraphs III and IV of Form SIO]. IV and V. [Allege fire, and loss or damage therefrom, and due performance of all conditions regarding the giving of notice, and proofs of loss, to defendants as attorneys in fact, and the lapse of 60 days, and non-payment as in paragraphs V to IX of Form 510.] VI. That pursuant to said policy of insurance, said under- writers agreed to pay to plaintiff the said loss in the same proportion which their several individual liability bears to the said total amount of insurance payabl^under said policy,, to wit, [one-seventeenth] thereof. " Where the original attorney in Wheelock v. Chapman, 34 App. Div. fact has been superseded by another, 464, 54 N. Y. Supp. 327. the latter should be made defendant. Insurance Policies 549 VII. That said policy of insurance contained tlie follow- ing provision: [quote provision as to suing attorneys in fact, as:] "No action shall be brought to enforce the provisions of this policy except against the attorneys in fact, as representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder." '' Wherefore, ' plaintiff demands judgment against each of the aforesaid underwriters for the sum of dollars, and for his proportionate amount of the costs of this action.'"' 527. Against Underwriter, on Lloyds Policy." I. That prior to and on or about the day of '' Compliance is excused if there are no attorneys in fact. Am. Lucol Co. f. Lowe, 41 App. Div. 500, 58 N. Y. Supp. 687. *• The demand must include the hability of all the underwriters. A re- covery against the attorney in fact, if paid, will bar an action against in- dividual underwriters, although the . amount demanded and recovered against the attorney was limited to his liability as one of the under- writers. McCredy v. Thrush, 37 App. Div. 465, 56 N. Y. Supp. 68. *i This form is adapted from the complaint in Ralli v. White, 21 Misc. 285, 47 N. Y. Supp. 197, afif'g 20 Misc. 635, 46 N. Y. Supp. 378, where a judg- ment was sustained on appeal. The defendant contended that the attor- neys in fact should alone be sued, under a stipulation in the policy as follows: "No action shall be brought by the assured to enforce the provi- sions of this policy, except against the attorneys in fact, as representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual resf)onsibility thereunder." This provision has been before the courts in actions on similar policies, and it has been de- cided that where the attorneys in fact are not underwriters such provision is contrary to public policy and void [Knorrv. Bates, 14 Misc. Rep. (N. Y.) 501, 12 id. 395; Farjeon v. Fogg, 16 id. 219], but where the attorneys in fact are underwriters, and liable as such on their contractual obligation, the stipulation that only one of their number should be sued, to prevent a multiplicity of suits and an unneces- sary accumulation of costs, is valid. Leiter v. Beecher, 2 App. Div. 577, 37 N. Y. Supp! 1114; Ketchum v. Beld- ing, 58 App. Div. 295, 68 N. Y. Supp. 1099; N. J. & Penn. C. W. v. Acker- mann, 6 App. Div. 540, 39 N. Y. Supp. 585; Stieglitz v. Belding, 20 Misc. Rep. 297, 45 N. Y. Supp. 670; Lawrence v. Schaefer, 20 App. Div. 80, 46 N. Y. Supp. 719. The judgment against the attorney in fact is conclusive upon the under- writers. Conant v. Jones, 50 App. Div. 336, 64 N. Y. Supp. 189. But under the terms of the policy before the court, it was held that a judgment in favor of the attorney in fact did not bar a subsequent action against 550 Abbott's Forms of Pleading ,19 , the defendant and the following named other individuals or firms, as separate underwriters, to wit [names] were doing business together as insurers against loss by fire under the name and style of [the Metropolitan Lloyds of New York City;] that each was duly represented by and doing business through [B. & Company of the city of New York,] as attorneys in fact for such underwriters; that each acting separately through said attorneys in factj and not one for the other, or any of the others, and in con- sideration of dollars premium, duly issued and deUvered their certain policy of insurance. No. , at to the plaintiff, whereby the defendant, together with each of such firms and individuals, separately insured each in the amount of dollars, the said plaintiff for the term of [one] year from said day of , 19 , at noon, against all direct loss or damage by fire, not exceeding in the aggregate the said sum of dollars, to the following described property, while located and con- tained as described in said policy, and not elsewhere, to wit: [description of property and location]. II. That it was further provided in said policy as follows: [quote] "that in no event or contingency shall the liability of any underwriter hereon exceed the amount of the sub- scription hereto by said firm or individual, and in no event or contingency shall any underwriter hereon be liable for any part of the sum subscribed by any other underwriter an underwriter. Fish v. Vanderlip, ecutors and administrators, to the 218 N. Y. 29. Compare Fish v. assured, his executors, administrators Iselin, 174 App. Div. 855. or assigns, for the true performance of In Straiis v. Hoadley, 23 App. Div. the premises, each one for his own 360, 48 N. Y. Supp. 239, plaintiff part of the whole amount herein as- made all the underwriters defendants, sured, and for such his proportion of asking judgment against each of them all additional sums that may be in- fer the amount of their individual dorsed hereon by said attorneys liability. The policy sued on pro- only." Held, that each underwriter's vided: "And the said firms, corpora- contract created a several liability, tions and individuals are contended and that the complaint was demur- and promise to bind themselves sev- rable for a joinder of causes of erally and not jointly, nor any one action not affecting all parties de- for any other, their respective ex- fendant. Insueance Policies 551 hereon, the liabihty assumed thereby by each underwriter being separate and individual only, as if each underwriter had issued to the insured herein a separate policy and not in any respect for the amount insured by any other under- writer." III. [Allege provision requiring action against the attorneys in fact, -as in paragraph VII of Form 526.] IV. That at the time of the issuance of said policy and thereafter, down to and at the time of the happening of the fire hereinafter mentioned, plaintiff was the owner of said property described in said policy of insurance. V. That on or about the day of , 19 , a fire occurred at said insured premises, described in said policy, whereby loss and damage was occasioned to the property described in said policy, to the amount of dollars. VI. That notice of said fire was immediately duly given by the said insured to the underwriters' said attorneys in fact, as provided in said policy, and that within [sixty] days after the said fire the plaintiff duly rendered a state- ment and proof of loss to the said underwriters' said attor- neys, signed and sworn to by plaintiff, and in all respects as provided in and required by the terms and conditions of the said policy of insurance; that plaintiff has duly per- formed all the conditions of said poUcy on his part. VII. That the defendant's individual proportion of such loss and damage by said fire, as a separate underwriter under said policy of insurance, was. and is the sum of dollars. VIII. That under and pursuant to the said poUcy the said last-mentioned sum became payable from the defendant to the said plaintiff on or about the day of , 19 , and that no part of said sum has been paid, although payment has been demanded of the defendant. IX. [May specifically show compliance with requirement of suing attorneys in fact as:] That in pursuance of the afore- said provision of said policy, plaintiff heretofore duly com- 552 Abbott's Forms of Pleading menced an action against said attorneys in fact, and on or about the day of , 19 , plaintiff duly recovered judgment in said action adjudging the individual liability of defendant at the sum of dollars. [// promsions for satisfying the judgment out of premiums and deposits, allege unsuccessful attempt to secure such payment.]*'^ Wherefore [etc., demand of judgment]. II. ON LIFE INSURANCE POLICIES *' 628. By Personal Representative." [From Dwight v. Germania Ins. Co., 84 N. Y. 493.] I. [Allege defendant's corporate capacity, etc., as in Form 510;] that defendant had due legal authority and corporate capacity to make the contract of insurance hereinafter referred to. II. That on or about the day of , 19 , the defendant, upon the application and request of "Meres v. Emmons, 103 App. Soc, 190 N. Y. 111. In such an Div. 381, 92 N. Y. Supp. 1099; action in equity, or in an action to Schaffer v. Holwill, 46 App. Div. recover upon the pohcy after death 93, 61 X. Y. Supp. 399. A general of the insured, it would be necessary allegation of due performance, under therefore to allege but the one tender § 532, Code Civ. Pro., would be suffi- and refusal to accept, cient to cover the specific allegations ** See first note to Form 529. of the paragraph. Ketchum v. Beld- Under an industrial policy wherein ing, 58 App. Div. 295, 68 N. Y. it is provided that the company Supp. 1099. might pay the amount to any rela- " In case the insurance company tive, the insured's personal repre- should declare the policy lapsed or sentative may sue thereon upon the forfeited, an action may be main- company's failure to make payment tained in equity to compel its recog- before action begun. Wakal v. nition as a binding contract; but no Belsky, 53 App. Div. 167, 65 N. Y. action may be maintained at law for Supp. 815. damages. See Kelly v. Security Mut. Where the insured procures a Life Ins. Co., 186 N. Y. 16; Langan policy payable to a relative other v. Supreme Council Am. L. of H., than a wife or child, and the insured 174 id. 266. The wrongful refusal survives the beneficiary, the policy of the .company to accept one pre- becomes payable to the insured's miufti duly tendered excuses subse- estate. O'Rourke v. Patterson, 157 querit tenders on recurring premium App. Div. 284, 142 N. Y. Supp. dates. Reed v. Prov. Sav. Life Ass. 195. Insurance Policies 553 W. D., of , and in consideration of the payment to it by said W. D., on the delivery of said poHcy, of the sum of dollars, and of the [quarterly payment to be made of a like amount on or before noon of the day of No- vember, February, May and August] in every year during the continuance of the poHcy, duly insured the life of said W. D. in the sum of dollars by its policy, number , bearing date August ,19 , [a copy of which policy is hereto annexed as a part of this complaint and marked "Ex- hibit A," ] and therein promised and agreed to pay at its office in the city of New York, within sixty days after due notice and proof of the death of said W. D., the said sum of dollars, the balance of the year's premium, if any, be- ing first deducted therefrom, to the executors, adminis- trators or assigns of the said assured; that said policy was delivered to said insured within the State of New York.*" III. [Allege death of insured and plaintiff's appointment as representative, as in Form 61 or 64.] IV. That said [insured] had duly paid all the premiums accruing upon said policy after its said issuance and de- Uvery, and said pohcy was in full force and effect at the time of his death as aforesaid ; that on or about the day of , 19 , and more than sixty days prior to the commencement of this action, plaintiff, as such [executor], duly gave the defendant due notice and proof of the death of said W. T).'^ V. That said W. D. and plaintiff have duly performed " ■" Place of delivery should be al- is not a part of plaintiff's case in leged if it is desired to show that the New York, under the Insurance laws of a certain jurisdiction applied. Law, § 92. Fisher v. Met. Life Ins. Mees w.-Pittsb., etc., Co., 169 App. Co., 167 N. Y. 178. See Form under Div. 86, 154 N. Y. Supp. 660. Answers for such an issue of forfeit- ■" This lapse of time must be al- ure tendered in defendant's answer, leged, and is not covered by an allega- Proof of a waiver by the company tion of plaintiff's due performance, of performance of any of the condi- or of having duly given proofs of tions precedent would not be ad- death. See First Bank v. Casualty missible under this allegation'. Hoff- Co., 176_App. Diy. 109, 162 N. Y. man v. Met. Life Ins. Co., 135 App. Supp. 349. Div. 739, 119 N. Y. Supp. 178; " Proof of payment of premiums German v. Met. Life Ins. Co., 158 554 Abbott's Forms op Pleading all the conditions of said policy on their part [and that the representations contained in the application for said policy were in all respects true; and that said policy was valid and in full force and effect at the time of the death of said W. D.; and that such death was not caused by any of the causes excepted in said policy, and that said W. D. has not done any of the acts stated in said poUcy as rendering the same void; and that said policy has not ceased and become null, void and of no effect by reason of any act, thing or omission on the part of said W. D. or otherwise].^' VI. That the defendant has refused to pay said insur- ance, or any part thereof, and no part of the said sum of dollars has been paid; that there is now due and owing to the plaintiff from the defendant the sum of dollars, with interest thereon from Wherefore [etc., demand of judgment]. 529. By Wife, Partner or Creditor, Instired.*' I. [Allege defendant's incorporation and business; see Form 610.] App. Div. 682, 143 N. Y. Supp. 1063; agreements in the policy, that fact is Garlick v. Met. Life Ins. Co., 109 not put in issue by a denial in the App. Div. 175, 95 N. Y. Supp. 645; answer. Murray v. N. Y. Life Ins. Ryer v. Prudential Ins. Co., 85 App. Co., 85 N. Y. 236. Div. 7, 82 N. Y. Supp. 971. The " A person cannot insure a life in plaintiff would have to quaUfy the which he has no interest. Reed v. statement by adding, "except that Prov. Life Soc, 190 N. Y. Ill; defendant waived," etc., setting Ruse v. Life Ins. Co., 23 N. Y. 516. forth what the condition was that A creditor has an insurable interest was so waived, and also alleging the (Goodwin v. Mut. Life Ins. Co., 73 ' facts claimed to constitute the waiver. N. Y. 480), even though his debt Sasse V. Order of United Com. Trav., would be barred by the Statute of 168 App. Div. 746, 154 N. Y. Supp. Limitations. Rawls v. Ins. Co., 27 558. See Forms 516-518, under N. Y. 282. Fire Insurance, for precedents for Any person may insure his own life alleging such waiver. and make the policy payable to any ** The allegations in brackets are person named therein, and such a not necessary in New York, and if poUcy is valid whether the payee have the complaint contain an allegation any pecuniary interest in the life in- that the death was not caused by the sured or not. Reed v. Prov. Sav. breaking of any of the conditions and Life Assoc, 190 N. Y. Ill; Breese v. Insurance Policies 555 II. That on or about the day of , 19 , in consideration of the payment to the defendant of the [annual] premium of dollars, the defendant, by its agents duly authorized thereto, duly made and delivered to the plaintiff at , its policy of insurance upon the life of M. N. [a copy of which is annexed as a part of this complaint and marked "Exhibit A;" and thereby] whereby it insured the life of said M. N. in the sum of dollars, payable to the plaintiff within [sixty] days after notice and proof of death of said M. N. III. That the plaintiff was then the wife of said C. B. [or, the partner of said C. B., in the business of, etc., or, a creditor of said C. B. to the amount of dollars,^" or, otherwise stating facts showing plaintiff's interest in the life], and as such had a valuable interest in the life of said M. N." IV. That on or about the day of , 19 , at , said M. N. died, which death was not caused by [the causes excepted in the policy, etc., as in preceding form].^^ V. That said M. N. and the plaintiff each duly performed all the conditions of said insurance on their part. VI. [As in paragraphs IV and VI of preceding form.] Wherefore [etc., demand of judgment].^^ Met. Life Ins. Co., 37 App. Div. 152, The fact that the amount of the 55 N. Y. Supp. 775; Olmsted v. policy exceeds the debt is of no Keyes, 85 N. Y. 598; Carraher v. consequence. Wright v. Mut. Ben. Metropohtan Life Ins. Co., 11 N. Y. Life Assoc, 118 N. Y. 237; Reed St. Rep. 665; Hoglew. Guardian Life v. Prov. Sav. Life Soc, 190 N. Y. Ins. Co., 4 Abb. Pr. (N. S.) 346. So, Ul. also, the insured may secure a policy '' It is not necessary in an action on payable to his representatives, and a life policy to show an insurable in- the defense of a wager policy is not terest existing at the time of death, sustained if the policy was once Rawls v. Am. Mut. Life Ins. Co., 27 validly issued. Peck v. Wash. Life N. Y. 282. Ins. Co., 91 App. Div. 597, 87 N. Y. " See note 48 to paragraph V of Supp. 210, aff'd 181 N. Y. 585; Amea preceding form. V. Man. Life Ins. Co., 31 App. Div. '' See, generally, for authorities on 180, 52 N. Y. Supp. 759. the sufficiency of this form the notes ^ From Reed v. Prov. Sav. Life to the preceding form, and to Form Assur. Soc, 36 App. Div. 250, 55 510. N. Y. Supp. 292. 556 Abbott's Forms of Pleading 530. By the Assignee of Insured.** I. [Allege incorporation and business of defendants;.see Form 528.] II. [Allege making of policy, as in Forms 628 or 529.] III. That on or about the day of , 19 , the said M. N. [insured — with the written consent of the de- fendant, duly indorsed on the policy, or otherwise state such consent or notice to the company as is required by the terms of the policy] duly assigned ''■'* said policy of insurance to this plain- tiff [in trust for L. N., his wife]. '*" IV. That on or about the day of , 19 , at , said M. N. died, which death was not caused by [the causes excepted in the policy, etc., as in Form 628].^'' V. [As in paragraph IV of Form 528.] VI. That no part of the same has been paid, and the said sum is now due thereon from the defendant to the plaintiff. Wherefore [etc., demand of judgment]. 531. Allegation of Change of Beneficiary.^^ On information and belief that on or about the 5' The insured, having taken out a non-suited unless he establishes a policy in good faith and not for the waiver. See Heffernan v. Prud. Ins. mere purpose of assignment, may Co., 88 Misc. 93, 150 N. Y. Supp. 644. assign it to one having no insurable '' The assignee of a life policy in interest, and the assignee may re- trust for the wife of the insured, may, cover the full amount. Steinback v. upon the .death of the latter, sue in Diepenbock, 158 N. Y. 24. his own name as trustee of an express The assignee for value of a policy trust for the sum insured. Neither of insurance effected by the assignor the wife nor the personal representa- upon his own life is entitled, upon the tives of the insured are necessary death of the assignor, to recover the parties. St. John v. Ins. Co., 2 Duer whole amount insured, without refer- (N. Y.), 419, 12 N. Y. Leg. Obs. 265. ence to the consideration paid by If payable to executors for the benefit him for the assignment. St. John v. of a designated person, the executors American Mutual Life Ins. Co., 2 are the proper parties plaintiff al- Duer (N. Y.), 419, 13 N. Y. 31. though the claim does not benefit the '" The averment that the assured estate. Grattan v. Nat. Life Ins. "duly assigned" is sufficient. Fowler Co., 15 Hun (N. Y.), 74. V. N. Y. Indemnity Ins. Co., 23 " See note 48 to paragraph V of Barb. (N. Y.) 143. Of course if the Form 528. policy contains a provision making it ™ For a general discussion of the void if assigned, the plaintiff will be right of the insured to change the Insurance Policies 557 day of ) 19 , said [insured] duly made application to the defendant to have the terms of said policy changed so as to make the amount payable thereunder made payable to plaintiff [or, to his estate — or, otherwise according to the fact]; that thereupon and on or about the day of ,19 , said policy was duly changed in such re- spect, and the said sum of dollars was duly made payable by the defendant to [plaintiff.] 532. To Compel Re-instatement of Policy. [Sustained in Prichard v. Sec. Mut. Life Ins. Co., 140 App. Div. 879, 124 N. Y. Supp. 650.] '' I. [Allege defendant's corporate capacity as in Form 528.] II. That on or about the day of , 19 , upon the plaintiff's written application, and in consideration of the sum of dollars then paid by the plaintiff to the defendant, and the further payments of the sum of dollars quarterly thereafter paid by the plaintiff to the defendant, the defendant made, executed and de- Uvered to the plaintiff its certain poUey of insurance num- bered , and dated that day, under the hands of its proper officers, and the seal of the defendant, and in and by such contract did insure the Ufe of this plaintiff in the sum and amount of dollars payable upon the death of this plaintiff, to his wife, III. That the plaintiff, in pursuance of the terms of the said contract or policy, up to the time of the commence- ment of this action, has duly paid to the defendant, and duly tendered to the defendant each of the quarterly payments due thereon and all sums of money due thereon according to the terms and conditions of the policy, and duly performed beneficiary in a policy procured by Div. 332, 113 N. Y. Supp. 346; him, see Bradshaw v. Mut. Life Ins. Je Bow v. Wash. Life Ins. Co., 59 Co., 187 N. Y. 347. App. Div. 310, 69 N. Y. Supp. 59 See, also, Mincho v. Bankers 289, aff'd 172 N. Y. 613; Straus Ins. Co., 124 App. Div. 578, 109 v. Un. Centr. Ins. Co., 170 N. Y. N. Y. Supp. 179, ano. dec, 129 App. 349. 558 Abbott's Forms of Pleading upon his part all the conditions of the said contract of in- surance. IV. That notwithstanding the faithful performance of the said contract upon the part of the plaintiff, the defendant wrongfully, unlawfully and illegally, and in violation of the contract rights of the plaintiff, has declared the contract lapsed and forfeited, together with all moneys paid thereon, and dividends declared and earned, and denies that the plaintiff has any rights thereunder, and refuses to accept from plaintiff the said quarterly premiums as they become due, although plaintiff has duly tendered each thereof. Wherefore plaintiff demands judgment that said policy of insurance be adjudged to be in full force and effect and a valid and binding contract upon defendant, and for such other and further relief as may be just. 533. On Extended Insurance.^" [7 and II as in Form 528.] III. That said policy contained a provision that, if after being in force for three full years it should lapse or become forfeited for the non-payment of any premium, it might be surrendered for a non-participating paid-up life policy, or, if not so surrendered for a paid-up life policy, the defendant ■company would write, in lieu of such policy and without any action on the part of the insured, a non-participating paid-up term policy for the full amount insured thereby, and to continue in force for the term indicated by a table annexed to said policy and therein described as a table of extended insurance. IV. That said table of extended insurance provided that, where premiums had been paid for [eight] years, the insur- ance should be extended for [seven years and twenty-six days]. '" Adapted from Perry v. Prud. on the forfeited policy instead of the Ins. Co., 144 App. Div. 780, 129 N. Y. new policy was held waived by the Supp. 751. An objection to the com- fact that the answer alleged that plaint that the action " was founded such new policy had been issued. Insurance Policies 559 V. That said [insured] duly paid the premiums on said poUcy for a period of eight years; that said [insuredl made default in the payment of the annual premium payable on the day of , 19 , whereby said poUcy became lapsed and forfeited. VI. That said [insured] did not surrender said policy for a non-participating paid-up life policy. VII. That pursuant to the aforesaid provisions of said policy, said defendant company duly wrote or became ob- Ugated to write, in Ueu of said policy, a non-participating paid-up tenn policy for said sum of dollars, and to continue in force for the term of [seven years and twenty- six days] from the day of , 19 , with the amount thereof payable to plaintiff under the same terms and conditions as in said original policy. VIII. That said [insured] died , 19 , and within the time named as the extended period of said substituted policy. IX. That said [insured] and plaintiff duly performed all the conditions of said original policy until the same lapsed and was forfeited as aforesaid, and have each duly per- formed all the conditions of said substituted policy. X. That more than [sixty] days have elapsed since plain- tiff gave to defendant due proof of the death of said [insured],, and that defendant has paid no part of said sum of dollars. Wherefore [etc., demand for judgment]. 534. To Compel Issuance of Paid-up Policy." [I and II as in Form 528.] III. That said policy contained a clause, whereby de- fendant promised and agreed [state clause providing for issu- ance of paid-up policy, which in the precedent was:] that if the premiums upon said policy for not less than [three] years of insurance from its date, to wit, the day of «i Adapted from Wilcox v. Equi- where the complaint was sustained table Life Ass. Co., 173 N. Y. 50, against demurrer. 560 Abbott's Forms of Pleading , 19 , shall have been duly received by defendant, and the policy shall have thereafter become void in conse- quence of default in payment of a subsequent premium, defendant would issue in Heu of said policy a new paid-up policy, without participation in profits, in favor of plaintiff for as many twentieth parts of the said original amount insured as there shall be complete annual premiums received in cash by defendant upon said policy at the time when such default shall first be made, provided that said policy should be surrendered duly receipted within [six] months after the date of default in payment of premium. IV. That plaintiff paid to defendant the said annual premium upon said policy for [six] consecutive years, and duly performed all the conditions on his part required by said policy. V. That when the premium for the year 19 , fell due, plaintiff defaulted in the payment thereof, and has made no payments of premium since; that plaintiff within said [six] months after the date of his said default, duly demanded of defendant that it issue and deliver to him a new paid-up policy in accordance with the terms before set out, then and there duly tendering to defendant the surrender duly re- ceipted of his aforesaid policy. VI. That defendant has failed and refused to issue or deliver to plaintiff the said paid-up policy. Wherefore, plaintiff demands judgment against de- fendant directing that said defendant issue and deliver to plaintiff a new paid-up poUcy of insurance, without partic- ipation in the profits, for the sum of dollars, and for such other and further relief as may be just. 535. To Recover Cash Surrender Value of Policy.*^ I. [Allege defendant's corporate capacity, and business; see Form 528.] '= From complaiat in Eisenbach i>. N. Y. 593, where the court held that Mutual Life Ins. Co., 162 App. Div. an assignment to insured's wife "if 595, 147 N. Y. Supp. 962, aff'd 212 living, if not to my child or chUdren," Insurance Policies 561 II. [Allege policy, either by annexing a copy, or by legal effect; see Form 528.] III. [If policy is not annexed, allege provision for surrender at a cash value, as:] That said policy contained the following provision [which in the precedent was as follows:] this poUcy may be surrendered at the end of said first period of twenty years and the full reserve computed by the American Table of Mortality, and four per cent interest, and the surplus accruing thereon, will be paid therefor in cash. IV. That plaintiff thereafter paid to the defendant twenty annual premiums of dollars each, in accordance with the terms of said poUcy. V. That the full reserve upon said policy, computed by the American Table of Mortality, and four per cent interest' thereon, and the surplus as defined in said policy, amount altogether to the sum of dollars. VI. That subsequent to the payment of said twenty an- nual premiums, to wit, on the day of , 19 , plaintiff duly demanded of the defendant payment of said sum of dollars, and duly tendered for sur- render to the defendant said policy of insurance on con- dition of the payment of said cash surrender value thereof; that defendant refused and still refuses to accept the sur- render of said policy so tendered to it, and declines to make payment of said cash surrender value of said policy. VII. That plaintiff has duly performed all the conditions of said policy on his part. Wherefore [etc., demand for judgment]. 536. By Equitable Assignee; One Advancing Money to Pay Premiums.^' I. [Allege corporate capacity of defendant, and business, as in Form 528.] did not require the wife suing on the Div. 455, 116 N. Y. Supp. 989, aff'd policy to join the children as parties. 197 N. Y. 609, where plaintiff re- "' From complaint in Morgan v. covered, but no question of pleading Mutual Ben. Life Ins. Co., 132 App. was directly raised. 562 Abbott's Forms of Pleading II. [Allege the issuance of policy on life of insured, in favor of defendant beneficiaries; adapt from Form 529.] III. On information "and belief that [the insured] and said defendants \beneficiaries] were unable to pay the money due for the annual premium thereon, payable on the day of . , 19 ; that thereupon said [insured — and said defendants — beneficiaries] requested plaintiff to advance to him [or, them] and pay the amount due upon said premium, in order to preserve said policy from forfeiture, *and there- upon promised and agreed with plaintiff that from the pro- ceeds of said pohcy when the same became payable accord- ing to its terms the amount so advanced, with interest thereon, should be repaid to plaintiff; that plaintiff, upon such request, and in consideration of said promise, and in order to prevent said policy from being forfeited, paid the annual premium which became payable on said day of , 19 , amounting to the sum of dollars. IV. That thereafter and for the same purpose and upon the like request and promise, plaintiff paid the annual pre- miums subsequently becoming due and payable upon said policy, as follows : [set them forth, by date and amount] V. That neither said [insured] nor said defendants [benefi- ciaries] have repaid to plaintiff any part of said sums so as aforesaid paid on said policy as annual premiums thereon, and that the aggregate amount so paid, with interest, amounts to dollars. VI. On information and belief that said [insured] and said defendants [beneficiaries] have each duly performed all the conditions of said pohcy on their part; that said policy was in full force and effect on the day of , 19 , on which date said [insured] died at VII. On information and belief that more than sixty days have elapsed since due proofs of the death of said [insured] were received by the defendant [insurance company], and that it has paid no part of the said amount of dollars; that on or about the day of , 19 > Insurance Policies 563 plaintiff duly notified said defendant [company] of its claim arising by reason aforesaid. Wherefore, plaintiff demands judgment ascertaining and determining plaintiff's interest in said policy, and the amount due thereunder, and establishing an equitable lien thereon to the extent of all moneys paid by him for premiums as aforesaid, and directing that the amount thereof be paid to plaintiff by said defendant [company], and for such other and further relief as may be just. 637. On Assessment Policy. II. [In place of the allegations as to policy in Form 528, substitute the following:] in consideration of the payment by him of an admission fee of dollars, and in considera- tion of his agreement to pay an annual due of dollars thereafter, and of assessments as they might be levied, defendant agreed to pay to within days, after due proof of death of said [insured] a sum equal to the amount received from a death assessment upon the members of the defendant, but not to exceed the sum of dol- lars [or, if according to fact: the sum of dollars.] *'' That on or about the day of , 19 , said [insured] died; that said policy was at such time in full force and effect. That said [insured] and plaintiff have each duly performed all the conditions of said policy on their part, and more than days have elapsed since due proof of death of said [insured] was duly given to defendant. [On information and belief that at the time of the death of said [insured] and at the time of the receipt by defendant of proof of his death, there would have been received from a death assessment upon the members of the defendant, "Under N. Y. Ins. Law, §210, icies or certificates the sum of money the life insurance corporations, is- which ia promised to be paid, and suing policies or certificates upon the the corporation becomes obligated co-operative or assessment plan re- to make payment of such sum. f erred to, must specify in their pol- 5(54 Abbott's Forms of Pleading made in accordance with its rules and by-laws, at least the said sum of dollars.] That defendant has paid no part of said sum of dollars. Wherefore [etc., demand for judgment]. 538. Under Assessment Policy, to Enjoin the Collection of Excessive Assessments.^' I. [Defendant's corporate capacity and business, as in Form 528.] II. That at , and on or about the day of , 19 , plaintiff and defendant entered into an agreement, a copy of which is hereto annexed marked "A" and made part of this complaint. III. That plaintiff has duly performed all the conditions of said agreement on his part. IV. That on the day of , 19 , plaintiff reached the age of years; that ever since said date defendant has assessed plaintiff upon said agreement in a sum far in excess of that provided by the terms thereof, but which amount is unknown to plaintiff; that defendant has " Adapted from complaint in Har- to raise its rate of assessment, and rison v. Hartford Life Ins. Co., 63 the circumstances under which a Misc. 93, 118 N. Y. Supp. 401, aff'd member may successfully sue to en- 137 App. Div. 918, 122 N. Y. Supp. join the collection of increased assess- 1130, 201 N. y. 545, where a judg- ments. ment for plaintiff was rendered and Where the rate has been wrong- suftiiined. fully increased, and the member's In Sauerbrunn v. Hartford Life tender of the rightful amount is re- Ins. Co., 159 App. Div. 121, 143 fused and the member notified that N. Y. Supp. 1009, the court held that it would not be accepted and that the question whether this action will his policy has been cancelled, further be entertained against a foreign cor- tenders are excused; the remedy is poration is not raised by a demurrer not confined to an action to have asserting want of jurisdiction, but the policy adjudged in force, but must be determined when plaintiff after the member's death the bene- applies for judgment. ficiary may sue on the' breach of See Green v. Royal Arcanum, 206 contract. Raymond v. Supreme N. Y. 591, for a discussion of the Lodge, 85 Misc. 141, 148 N. Y. right of a mutual benefit association Supp. 76, aff'd 165 App. Div. 944. Insurance Policies 565 assessed plaintiff under said agreement at a rate in excess of \state rate as given in the policy]. V. That plaintiff has been forced under penalty of for- feiting said agreement to pay all assessments levied by de- fendant, and until about the day of , 19 , plaintiff had no knowledge that defendant was assessing him beyond the rate provided for in said policy. VI. That plaintiff has no means of ascertaining the amount of the excessive assessment levied by the defendant under the said policy; that the data upon which is based the ratio or number of times the rate specified in said con- tract which plaintiff should pay are unknown to plaintiff, and in the exclusive possession of defendant. , VII. On information and belief that the defendant is indebted to plaintiff in a large sum of money for overpay- ments upon said policy, as hereinbefore set forth, but that such amount is unknown to plaintiff. VIII. On information and belief, that defendant claims the right to assess plaintiff beyond the rate provided for in said policy, and is continuing to make such excessive assess- ments against plaintiff, and intends to continue so to do; that plaintiff is and will be forced to pay such excessive assessments under penalty of forfeiture of his contract; that plaintiff has no knowledge of the exact amount which he should tender to the defendant in fulfillment of his con- tract and therefore is compelled to submit to such excessive assessment. IX. That plaintiff has no adequate remedy at law. Wherefore, plaintiff demands judgment against defend- ant that the defendant be enjoined from assessing plaintiff upon his contract at a rate in excess of ;,that de- fendant render an accounting to plaintiff of the sums of money received from plaintiff in excess of said rate since ,19 , that plaintiff have judgment against de- fendant for any amount found to be due plaintiff upon such accounting, and for such other and further relief as may be just. 566 Abbott's Forms of Pleading 539. On Membership Certificate in Fraternal Benefit Order.''^ I. \ Allege defendant's incorporation as in Form 528. \ II. [7/ benefit is payable to a particular relative, show plain- tiff to be such relative.] III. That said [insured] was prior to the date hereinafter mentioned regularly admitted as a member of [state local branch, ordinarily, as: Tent No. , located at , of The Knights of the Maccabees of the World], and as such was a duly admitted member of the defendant; that on or about the day of , 19 , for the con- sideration of dollars to it paid by said [insured] the defendant duly issued and delivered to said [insured] its benefit certificate No. , for dollars, wherein and whereby it promised to pay upon the death of said [insured] certain monthly rates on its life benefit members not exceeding the sum of dollars,*^ said sum to be paid to the [mother] of said [insured], within days after proof of death of said [insured] and the surrender of said certificate. [IV. That plaintiff is unable to state more fully the terms and conditions of said benefit certificate, for the reason that the same is not now in her possession, but has been sur- rendered to defendant as hereinafter alleged.] V. On information and belief that said [insured] continued to be a member, in good and regular standing, of said [local and of said] defendant up to and including the time of his death, which occurred at x>n the day of ,19 . VI. On information and belief that the monthly rates on «' In view of the differing condi- " See N. Y. Ins. Law, § 210. tions in such benefit certificates, this The terms of the policy relating to form is merely suggestive. It is the amount of benefit payable, and adapted from Lounsbury v. Knights how to be raised, should be set forth, of the Maccabees, 199 N. Y. 573, if obtainable. See Todd v. Union where plaintiff recovered; also from Cas., etc., Co., 70 App. Div. 52, 74 Ellis V. Nat. Prov. Union, 50 App. N. Y. Supp. 1062. Div. 255, 63 N. Y. Supp. 1055. 'Insueajntce Policies 567 the life benefit members referred to in said benefit certificate largely exceed in amount said sum of dollars/' VII. That on or about the day of , 19 , plaintiff duly rendered to defendant proof of the death of said [insured], and duly surrendered said certificate to said defendant; that defendant has ever since retained said cer- tificate and proof of death, without objection thereto, and without request for other or further information with regard thereto. VIII. On information and beUef that said [insured] and plaintiff have duly performed all the conditions of said benefit certificate and membership in the defendant on their part. - IX. That more than days have elapsed since defendant received said proof of death, but defendant has paid no part of said sum of dollars to plaintiff. Wherefore [etc., demand for judgment]. 540. By Personal Representative, to Reach Insurance Pay- able to Widow, purchased by Premiums in Excess of Amount Allowed by Statute.^' [Under N. Y. Domestic Relations Law, § 22.] I. [Allege plaintiff's appointment as administrator, or as executor, of insured; see Forms 61 or 6J^.] II. [Allege corporate capacity of defendant insurance com- panies as in Form 528.] III. On information and belief, that said M. N. [the in- sured] at the time of his dealh was insolvent, and that the amount of his debts greatly exceed his assets together with the amoxmt of any excess of insurance, as hereinafter alleged. IV. That the defendant Y. N. was the wife of said M. N., and is now his widow, and that she in the lifetime of her said ^ Darrow v. Family Fund Soc, the right of the personal representa- 116 N. Y. 537; O'Brien v. Home Ben. tive to receive the excess insurance Soc, 117 id. 310. for the benefit of creditors was ad- «' Adapted from complaint in Kit- judged, tel V. Domeyer, 175 N. Y. 205, where 568 Abbott's Forms of Pleading husband, or said M. N., caused his hfe to be insured in the following amounts in the defendant insurance companies, in her name as beneficiary and for her benefit: [state various policies and amounts]. V. On information and belief that the premiums paid for said insurance amounted to an annual payment greatly in excess of $500; that said premiums were paid out of the property of said M. N., who at the times of such payments of premiums was insolvent and unable to pay his debts, and that that portion of said insurance money which was purchased by the excess of annual premiums above $500 is primarily Uable for the debts of said M. N., deceased. VI. On information and belief, that no part of said insur- ance has been paid by said defendant companies; that due notice and proofs of death of said M. N. have been duly given to said companies, and that in all respects all the terms and conditions of said policies have been duly per- formed by said deceased and his said widow, the defendant Y. N., to the extent that the amounts payable under said policies of insurance have more than sixty days prior to the commencement of this action become due and payable by said defendant insurance companies to those legally en- titled thereto. Wherefore, plaintiff demands judgment: that the court ascertain and adjudge the amount of said insurance that 1500 in annual premiums paid by the deceased during his Ufe- time did purchase, and that such amount be adjudged pay- able by the defendant insurance companies to his widow, the defendant Y. N.; that the court also ascertain and adjudge the amount of annual premium so paid in excess of $500, and the amount of insurance purchased thereby, and adjudge that the amount of such excess constitutes a trust fund in favor of the creditors of said M. N., deceased, and primarily Uable for his debts; that the defendant insurance companies be directed to pay such amount to plaintiff, and that such amount of such excess insurance, if any, as the defendant Y. N. may have heretofore received she be required and Insurance Policies. 569 directed to pay over to plaintiff; and for such other and further relief as may be just. III. ON ACCIDENT AND DISABILITY INSURANCE POLICIES 541. On Accident Policy.''*' I. [Allege defendant's incorporation and business, as in Form 510.] II. That on or about the day of , 19 , at , in consideration of the payment by plaintiff [or, one M. N.] to defendant of the [annual] premium of dollars, defendant made and delivered to plaintiff [or, to said M. N.] its policy of insurance, in writing, upon the life of plaintiff [or, said M. N.], a copy of which policy is annexed to this complaint, and marked "A," and made part hereof. [Or, the contract may be pleaded by its legal effect, substan- tially as follows, following of 'course with accuracy the pro- visions of the particular policy, of which the following are merely suggestive: That on or about the day of .,19 , by its poli'cy of accident insurance No. , duly signed by its president and secretary and countersigned by one J. K., its special agent, and in consideration of the sum of dollars premium paid to it, the said defendant did thereby insure plaintiff — or one M. N., the husband of the plaintiff — ^for the period of one year beginning at noon of the day the said policy was dated, to wit, on the day of , 19 ; and thereby and therein the said defendant did promise and agree that [follow the terms of the policy, as:] in the event of bodily injuries resulting in the immediate and total dis- ability of plaintiff from prosecuting any and every kind of duty pertaining to his occupation as a [physician] — or, '"> Owing to the differing characters the provisions of the contract as of the contract, the following forma made must bo carefully followed, are merely suggestive. In each case 570 Abbott's Forms of Pleading resulting in the death — within days thereafter — of the said M. N. — caused solely through external, violent and accidental means — to pay to plaintiff a weekly indem- nity of dollars, payable weekly, during the period of such disabiUty not exceeding weeks — or, to pay within days after proof of death, the sum of dollars, to plaintiff, wife of said M. N., if still surviving.] " III. That on or about the day of 19 , and while said policy was in full force and effect, plaintiff [or, said N. M.] received a bodily injury solely through external, violent and accidental means,^^ to wit, a gunshot wound inflicted by the accidental discharge of a gun in the hands of one 0. P., [or otherwise allege character of injury] '* which said injury has immediately and directly, inde- pendently and exclusively of all other causes wholly dis- abled plaintiff from prosecuting any and every kind of duty pertaining to his occupation as physician until the pres- ent time, viz., for the term of consecutive weeks, [and will probably so disablfi him. for some time in the future ''* — or, if the injury caused his death, which said injury caused the death of said M. N. within ninety days there- after, to wit, in the day of , 19. ; that his said death resulted directly from said accident, inde- pendently and exclusively of all other causes].'' '^ This avennent is taken from the possession of all of his senses and was complaint in Farrell v. American Ins. not intoxicated, which was denied Co., 68 Vt. 136, where it was held in the answer; the answer also con- that the defendant's promises ap- tained a denial that the accident plioable to the facts declared upon was caused solely by external, vio- (the insured's accidental death) were lent and accidental means. Held, accurately set forth. defendant was properly denied the '^ See an extended note in 8 Am. right to open and close. Rep. 758, on the question what is '*Each weekly indemnity may be death by accidental means within the made the subject of an independent poUcy. action; but plaintiff must include '' In CiUey v. Pref. Ace. Ins. Co., all such unpaid installments at the 109 App. Div. 394, 96 N. Y. Supp. time of the commencement of any 282 (aff'd 187 N. Y. 517) plaintiff action. Porter v. Cas. Co. of Am., added an allegation that at the time 65 Misc. 485, 120 N. Y. Supp. 71. of the accident the insured was in '* Held a necessary allegation when Insurance Policies 571 IV. [// plaintiff is not the insured, allege facts to show that plaintiff is entitled to sue upon the policy — e. g., if the policy is made payable to personal representatives, allege plaintiff's appointment as such, as in Forms 61 or 6^.] V. That, plaintiff [or, said M. N. and this plaintiff each] duly performed all the conditions of said poUcy on his [their] part/® and plaintiff more than [sixty] days before the com- mencement of this action, [and within days after said injury as required by the terms of said policy] " to wit, on or about the day of , 19 , gave to the defendant due notice and proof of the duration during the weeks of , of the total disability resulting from the aforesaid injury, [or, death of said M. N., as aforesaid,] and demanded payment of the sum of dollars, but no part thereof has been paid. Wherefore [etc., demand of judgment]. 542. To Recover Sick or Death Benefits.^' I. [Allege corporate capacity of defendant as in Form 510], and is duly engaged as such corporation in doing a benefit insurance business. II. That defendant is composed of many members, and policy so provided. Tromblee v. " Such a contractual require- No. Am. Ace. Ins. Co., 173 App. Div. ment is not excused by showing 174, 158 N. Y. Supp. 1014. plaintiff's delirious condition, or other Each separate accident gives a unforeseen contingency. Whiteside separate cause of action. Barrows v. v. North Am. Ace. Ins. Co., 200 Fid. & Cas. Co., 174 App. Div. 539, N. Y. 320. 161 N. Y. Supp. 203. '8 From complaint in Beach v. Su- ™ These allegations sufficiently preme Tent of the Knights of the show the giving of notice and proof Maccabees, 177 N. Y. 100, where a under the policy. Richards- v. Ins. recovery by plaintiff was sustained. Co., 89 Cal. 170, 26 Pac. Rep. 762. The form is necessarily merely sug- Of course no waiver or excuse can " gestive; in view of the differing con- be shown under such allegations, or ditions contained in membership in unless the facts showing such waiver various associations, each must be or excuse be pleaded. See Meech v. examined carefully and the com- Nat. Ace. Soc, 50 App. Div. 144, plaint must accurately present its 63 N. Y. Supp. 1008; abo general terms and conditions, and show com- note on page 20, and note on this pliance therewith, point to Form 510. 572 Abbott's Forms of Pleading under the authority given it by said incorporation it has established subordinate lodges or so-called Tents which are under defendant's control; that one of the lodges or tents so established is Tent No, located at ; that under the authority conferred upon defend- ant upon its incorporation, defendant collects, manages and disburses a beneficiary fund for the benefit of its mem- bers, and in manner following, to wit : Upon the death of a member in good standing, holding an endowment certificate, it is made the duty of each member of the defendant to pay upon notice such smn as may be fixed as assessments dependent upon their respective ages to the subordinate lodge to which such member belongs, which sum is forwarded to the defendant; that in consideration of such payment by each member, and of his compliance with the rules and regulations of the tent or order, defendant promises and agrees upon the death of any such member in good standing to pay to such person as such member may have designated while living the sum of dollars from the beneficiary fimd of said defendant. III. That in further consideration of such payments and continuance by the member in good standing, said defendant promises and agrees that upon the total or permanent dis- ability of said member to perform any kind of labor or busi- ness, or upon such member becoming unable to perform the kind of business or labor which he has followed and by which alone he can earn a livelihood, to pay to such member dollars out of said beneficiary fund. IV. [Allege plaintiff's membership, and issuance to him of a certificate, as in Form 539.] V. That at and on or about the day of , 19 , while plaintiff was a member of defendant in good standing, and while its aforesaid agreement was in full force, plaintiff in the regular course of his occupation [allege injury and result, as:] plaintiff became permanently and totally disabled, without fault on his part, by the loss of his right arm through the same being accidentally cut off. Insurance Policies 573 VI. That plaintiff has duly performed all the conditions of such membership and agreement on his part, and more than days have elapsed since defendant has re- ceived due proof of plaintiff's said total and permanent disability. VII. That defendant has paid no part of said sum of dollars. Wherefore [etc., demand far judgment]. 543. On DisabiUty Policy.^' I. [Defendant's corporate capacity and business, as in Form 510.] II. That at , and on or about the day of ,19 , in consideration of the payment to it by plaintiff of dollars, defendant insured plaintiff against loss of time on account of sickness, illness or disease, for a period of [one year] commencing on the day of , 19 , by its policy No. , a copy of which is hereto annexed marked A and made part hereof [or, plead its substance, as in Form 541, showing the sum pay- able on account of the disability from which plaintiff has suffered]. III. [Show disability occurring within the period of the policy, and within its terms, following its provisions carefully, as:] That on or about the day of , 19 , plaintiff was taken sick and became ill with a bodily disease, to wit [state], and was confined to his bed for a period of weeks and to his house for a further period of weeks, in consequence of said sickness; [if per- manent disability has resulted, and is covered by the insur- ance, allege the fact, as:] that said disease independently of all other causes, and within the term of said insurance, has resulted in permanent disability, and plaintiff is wholly unable to engage in any occupation whatever [and has be- come permanently paralyzed]. " Adapted from complaint in Miles 453, where no question of pleading V. Casualty Co. of Am., 203 N. Y. was directly involved. 574 Abbott's Forms of Pleading IV. That plaintiff duly performed all the conditions of said poUcy on his part; "" that more than days have elapsed since the date of filing final proof with the defendant at its home office [or otherwise according to policy require- ments]. V. That defendant has paid no part of the sum of dollars, which by reason aforesaid has become due and pay- able to plaintiff under the terms of said policy. Wherefore [etc., demand for judgment]. IV. MARINE POLICIES 544. On a Valued Policy, on Ship or Cargo. I. [Allege defendants' incorporation and business; see Form 510.] II. That on or about the day of , 19 , at , in consideration of the premium of dollars, then and there paid to them by the plaintiff [or, which this plaintiff then and there agreed to pay to the de- fendants], the defendants, by their agents duly authorized thereto, made and delivered their poUcy of insurance No. , of which a copy is annexed ^^ as a part of this com- plaint, and marked "Exhibit A," * and thereby insured him in the sum of dollars upon the ship [or, upon the cargo, or, certain goods, then laden, or, about to be laden upon the ship] Hornet, then lying in the harbor of, etc. [or as the case was], at and from said and in a voyage from thence to , [or, for the term of years, from, etc.], against the perils of the seas [or, the perils of fire, mentioning the perils which occasioned the loss], and other perils in said poUcy mentioned. *" If a policy covering sickness pro- '' The obligations of the defendant vides that the insured must give no- are sufficiently averred without an- tice of the sickness within ten days nexing a copy. If a copy of the policy after its commencement, he is not ex- is annexed, the legal effect will be cused because at first he was deliri- gathered from its terms and not from ous and later forgot the fact that he the allegations of the complaint, had insurance. Whiteside v. North Black v. Ins. Co., 47 Hun (N. Y.), Am. Ace. Ins. Co., 200 N. Y. 320. 210. Insurance Policies 575 III. That on or about the day of , 19 , the said ship sailed from said. on the said voyage described in the policy, and while proceeding therein [or, during said voyage and while lying in the port of, etc.], was by the perils of the seas wrecked and totally lost [or, was burned and wholly destroyed by fire].*^ rv. That the plaintiff was, at the time of the commence- ment of the risk and thereafter until the said loss, the owner of said [insured property, or, interested in said insured prop- erty, state how, as, under and by virtue of a chattel mortgage made and executed to plaintiff by said — owner — ^upon said boat in the sum of dollars, on the day of ,19 , to an amount exceeding the whole amount insured, to wit, dollars].^' *^ The loss must be alleged to have been caused by one of the perils in- sured against. Kuh v. Brit. Am. Ass. Co., 130 App. Div. 38, 114 N. Y. Supp. 26S, aff'd 195 N. Y. 571. Where a policy upon tower's lia- bUity provided that it covered only the legal liability of the tug for loss or damage to vessels in tow, held that a decree in an action against the owners of the tug was relevant to establish the character of the owner's Uabflity. Cahill v. Stand. Marine Ins. Co., 204 N. Y. 190. *' See generally the notes on in- surable interest to Forms 510 and 528,on fire and life policies, supra. Since the passage of the act relat- ing to wagers, etc. (see Penal Law, §§ 970-997), it is necessary that the plaintiff, in complaining upon a policy of insurance which, upon its face, does not show any interest in the plaintiff, should aver that the in- sured had an interest to be protected thereby, unless the claim was as- signed to him afterwards,, or unless he sues as trustee of an express trust. Freeman v. Fulton Fire Ins. Co., 14 Abb. Pr. (N. Y.) 398; s. p., Earnmoor V. Cal. Ins. Co., 40 Fed. Rep. 847. And an averment that he gave the defendants due proof of loss and of interest cannot be construed as an averment that the plaintiff had an insurable interest. Williams v. Ins. Co. of N. A., 9 How. Pr. (N. Y.) 365. The interest of the insured is one of the facts constituting the cause of action. 2 Greenl. on Ev., §§376, 378-381. It cannot be urged, as in the case of a contract under the Stat- ute of Frauds, that the statute merely prescribes a rule of evidence; and it seems to be the safer practice to aver the interest when it does not dis- tinctly appear in the policy as set forth or annexed. See 2 Phil, on Ins. 612, §§ 2018, 2019; Ellis on Fire Ins. 175, note 1. This may be more briefly done by inserting after the description of the object insured, — "then, and until the loss hereinafter mentioned, the property of this plaintiff." In a declaration upon a policy of insurance on the cargo of a canal boat, it was held a sufficient aver- 576 Abbott's Forms of Pleading V. That the plaintiff duly performed all the conditions of said policy of insurance on his part [and more than (sixty) days — or, otherwise, as required by the policy — before the com- mencement of this action, to wit, on or about the day of , 19 , he gave to the defendants due notice and proof of the loss as aforesaid]. VI. That no part of the said sum of dollars has been paid, and there is now due from the defendants to the plaintiff thereon the said sum with interest from Wherefore [etc., demand of judgment]. 545. The Same, on an Open Policy.'^ [As in preceding form, substituting in paragraph II at the*] and thereby promised to pay to the plaintiff, within days after proof of loss and interest, all loss and damage which shall be mutually agreed upon and indorsed upon said policy and accruing to plaintiff by reason of the destruction or injury of the ship [or, of the cargo, or, certain goods, then laden, or, about to be laden upon the ship], then at , during its next voyage from to , whether by perils of the sea or of fire [mentioning the perils which oc- casioned the loss], or by other causes therein mentioned. ment of the plaintiff's interest to al- Howard Ins. Co., 5 Wend. (N. Y.)200. lege that the insurance was "for the It need not be averred that the account and benefit of the plaintiff as plaintiff was interested at the time a common carrier, for hire, etc.;" of making the policy. In marine in- and a sufficient averment of the lia- surance an interest at the commence- bility incurred to state, that an ment of the risk is sufficient. 2 amount of goods exceeding that men- Greenl. on Ev. 381, § 330; 2 Phil, on tioned in the policy was intrusted to Ins. 614. him as a carrier, and that they were '* In an action on an open policy consumed by fire, and the plaintiff providing that the company shall be . thereby became liable to pay to the liable for such sums as shall be speci- respective owners a greater sum than fied by application, and mutually that insured. Van Natta v. Ins. Co., agreed upon and indorsed upon the 2 Sandf. (N. Y.) 490; and see De policy, it is necessary to aver that an Forest v. Fulton Fire Ins. Co., 1 Hall amount sought to be recovered had ^N. Y.), 84. And as tb the form of the been mutually agreed upon, and in- averment of an assignee's interest in dorsed upon the policy. Crane v. the subject insured, see Granger v. Evansville Ins. Co., 13 Ind. 446. Insurance Policies 577 III. That thereafter the following agreement was made between plaintiff and defendant and indorsed by defendant upon said poUcy [here set out the indorsement]. [Continue as in preceding form commencing at paragraph II I, ^'" except that to paragraph IV must be added]: and that plaintiff's loss and damage by reason of the destruction of said ship was dollars. Wherefore [etc., demand of judgment]. 546. Upon Freight. [As in Form 544^, substituting at the* in paragraph II], and thereby insured for him dollars |ipon freight of certain goods then laden [or about to be laden] in the ship Hornet, then at , to be transported by the plaintiff from to , against the perils of the seas [or, the perils of fire, mentioning the perils which occasioned the loss], and other perils in the policy mentioned. III. That on or about the day of , 19 , said ship sailed from ,, on the voyage described in the poUcy, and while proceeding thereon [or, during said voyage and while lying in the port of, etc.], said goods, the freight whereof was insured as aforesaid, were totally lost by [the perils of the sea]. IV. That the plaintiff would have received as his own prop- erty, the freight to be paid for the transportation of said goods, but has been deprived thereof by reason of the loss of said ship as aforesaid. [Or, where the freight was paid in advance.] IV. .That the plaintiff thereupon became liable to repay [and on the day of , at , did repay] to the shippers of said goods, the sum of dollars, freight which had been advanced by them. [V and VI as in Form 544-] Wherefore [etc., demand of judgment]. " The complaint must show that Brit. Am. Ass. Co., 130 App. Div. the loss was caused by a risk insured 38, 114 N. Y. Supp. 268, aff'd 195 against, or it is insufficient. Kuh v. N. Y. 571. 578 Abbott's Forms of Pleading 547. Averment of Loss by Collision.'* [Substitute for paragraph III in preceding forms,] III. That on or about the day of , 19 , while the said ship [with the said goods on board], was proceeding on her said voyage, and before her arrival at her said port of destination in the said pohcy mentioned, another vessel, ' with great force and violence was carried against and ran foul of the said ship, and the said ship thereby was sunk and lost [with the said goods, which thereby were wholly lost to the plaintiff]. 648. Averment of Waiver of a Condition.*' That afterwards and on or about the day of , 19 , the defendants, by their agents duly author- ized thereto, [here specifically plead the facts upon which the waiver is rested, ^^ continuing:] that thereby defendant waived the condition of the said poHcy by which [designating it], and released and discharged the plaintiffs from the perform- ance thereof [or, and consented that the plaintiffs should, etc., according to the facts]. 549. For a Partial Loss and Contribution to General Aver- age, for Goods Thrown Overboard. [I and II as in Form 544-] III. That said vessel did, on or about the day of , 19 , duly proceed on said voyage, and whilst proceeding thereon was by the perils of the seas disabled, and damaged in her hull, rigging and appurtenances; inso- ** No liability is incurred under the notes to Forms 510 and 528, on fire collision clause where plaintiff's vessel and life policies, was intentionally driven against an ^ See notes above referred to as to ice pack, the strength of which was insuflBciency of an allegation of waiver miscalculated. Newtown Creek Tow- without allegation of the facts sup- ing Co. V. Aetna Ins. Co., 163 N. Y. porting it; also, Sasse v. Order of 114. Com. Trav., 168 App. Div. 746, 154 ^ Proof of defendants' waiver of a N. Y. Supp. 558. condition is not admissible under an See Forms 516-518 for further allegation of plaintiffs' performance, precedents. See general note on page 20, and Insurance Policies 579 much that it was necessary for the preservation of said ship and her cargo, and for the benefit of all concerned, to lighten the said ship and to throw over a part of said cargo, and there was accordingly thrown over for that purpose, a portion thereof, of the value of dollars. IV. That by means thereof the plaintiff was obliged to pay dollars as a proportional contribution to and for the general average loss occasioned by throwing over a part of said cargo. [Continue as V and VI in Form 544-] Wherefore [etc., demand of judgment]. 660. The Same, where the Damage was to the Vessel. [I and II as in preceding Form 544-] III. That dvuing the said voyage and the continuance of the insurance, the said ship, with the said goods on board, was by perils of the seas brought into great distress and in danger of being lost, whereupon the master of the said ship, for the general safety and preservation of the said ship and goods, was necessarily obliged to cut away and did cut away and cast into the sea, masts, yards and rigging, of and be- longing to the said ship, whereby they were lost. IV. That by reason thereof the plaintiff became liable to bear and pay a proportionable part of the value of the said masts, yards and rigging, so lost as aforesaid, and thereby sustained a general average loss, amounting to the sum of dollars by the hundred for each and every hundred dollars so by him insm-ed as aforesaid. V. MISCELLANEOUS POLICIES OF INSURANCE 551. On Indemnity Insurance.^' I. [Allege defendant's corporate capacity and business; see Farm 510.] *» Adapted from complaints in rights and obligations of the parties, Woolverton v. FideUty, etc., Co., 190 Ci^em v. Fid. & Cas. Co., 141 App. N. Y. 41, and Tolmie v. same, 183 id. Div. 493, 126 N. Y. Supp. 555, mod. 581. See, generally, as to the relative 206 N. Y. 733; also, a former decision 580 Abbott's Forms of Pleading II. That at , and on or about the day of , 19 , and in consideration of dollars paid to it by plaintiff, defendant made and delivered to plaintiff its policy of insurance No. [a copy of which is hereunto annexed marked "A" and made part of this complaint — or, plead according to legal effect, as:] whereby it agreed to indemnify plaintiff for the term of beginning on the day of , 19 , against [state the terms of the policy in this regard, as:] loss and ex- pense resulting from claims upon plaintiff for damages on account of accidental injuries, fatal or otherwise, suffered during and by reason of the business operations of the plaintiff [or otherwise according to the provisions of the policy], such indemnity being limited however to the sum of dollars for a casualty resulting in injuries to any one person; said agreement also provided that in case any legal pro- ceedings were taken against plaintiff to enforce any claim for damages on account of an accident covered thereby, defendant would defend the same at its own cost and ex- pense in the name of and on behalf of plaintiff. III. [Allege accident, as:] That on or about the day of , 19 , one of plaintiff's vehicles, engaged in his business operations, accidentally ran against and caused serious injury to one M. N. IV. That plaintiff has duly performed all the conditions of the said agreement of insurance on his part.'" V. That on or about the day of , 19 , said M. N. conmienced an action against plaintiff in the coitrt of , to recover his damages resulting from said injuries; that plaintiff immediately delivered the sum- mons and complaint therein to the defendant, and requested inl32App. Div. 241, 116N. Y. Supp. mediate notice, of accidents to be 1042. given it must be obeyed, even though *> A waiver or excuse for non-per- it was not certain there would be any formance cannot be shown under Uability under the policy. Melcher such an allegation; see general note, v. Ocean Ace, etc., Corp., 175 App. page 20. If the policy requires im- Div. 77, 161 N. Y. Supp. 586. Insurance Policies 581 defendant to defend said action, which said defendant then undertook and continued in sole control thereof thereafter '' [or, but that said defendant refused to undertake said de- fense, or to indemnify plaintiff, as it had agreed, and there- upon plaintiff was compelled to and did employ counsel in said action and to defend the same] and that such proceed- ings were thereafter had in said action that on the day of , 19 , said M. N., without any fault or neglect on plaintiff's part, recovered judgment against him for the sum of dollars damages and costs. VI. [State any appeal taken, as:] That thereafter an appeal from said judgment was taken by plaintiff, under the direc- tion of and by defendant's counsel, to the Appellate Divi- sion for the department; that said court on the day of , 19 , affirmed said judgment, with dollars costs against plaintiff. VII. That on or about ,19 , plaintiff paid said judgments and interest thereon, amounting in all to dollars.'^ VIII. [7/ according to fact:] That by reason of defendant's refusal to defend said action, as aforesaid, or to indemnify plaintiff against the same, plaintiff was subjected to neces- sary expense for fees and services of counsel, and other necessary and incidental expenses, amounting in all to dollars [particulars whereof are given in the state- ment hereunto annexed marked A]. IX. That defendant has paid to plaintiff no«part of the aforesaid sums, but that the whole amount thereof, to wit, dollars, is now due and payable. Wherefore [etc., demand for judgment]. " Rosenbloom v. Maryland Cas. the tenns of the policy from making Co., 153 App. Div. 23, 137 N. Y. a settlement, he must upon making Supp. 1064. a settlement establish as against the 92 It is essential that plaintiff shall insurer his legal Uability tor the in- have paid the judgment. Appel v. juries, and the circumstances showing Peo. Surety Co., 148 App. Div. 70, it must be pleaded. White v. Mary- 132 N. Y. Supp. 200. land Cas. Co., 139 App. Div. 179, 123 If the insured is not prohibited by N. Y. Supp. 840. 582 Abbott's Forms of Pleading 552. For Fidelity of Employees.*' I. [Allege defendant's corporate capacity, adding] and law- fully engaged within the State of New York and elsewhere in carrying on the business of guaranteeing the fidelity of persons holding places of trust. II. That at , and on or about the day of ,19 , in consideration of dollars premium paid to it by plaintiff, defendant made and delivered to plaintiff its bond or agreement of indemnity. No. , dated on said day, wherein and whereby defendant agreed that during the term of one year from the day of ,19 , it would, within months after due proof thereof given to it, make good and reimburse to the plaintiff such pecuniary loss as might be sustained by plain- tiff by reason of the fraud or dishonesty of any of the persons in the employ of the plaintiff named and specified in a cer- tain schedule filed by plaintiff with defendant, to the various amounts therein stated last written opposite their names, which fraud or dishonesty should be committed in connec- tion with the duties of said employees, and should amount to embezzlement or larceny, and which should be committed during the continuance of said term of said policy, and be discovered during the continuance thereof or within three months thereafter.*^ III. That one M. N. was then employed by plaintiff, and was one of the aforesaid persons whose names were contained in said schedule, as employees of the plaintiff included and covered by the said bond or agreement, and the sum of dollars was last written opposite to the name of said M. N. as the amount which defendant agreed to reimburse plaintiff under the terms and conditions afore- said. "From complaint in Granger v. of employee as permitted by the terms Empire State .Surety Co., 132 App. of the policy, allege that fact showing Div. 437, 116 N. Y. Supp. 973, where compliance with the requirements of a recovery by plaintiff was upheld! the policy. See Schultz v. Mass. '* If there has been a substitution Bonding Co., 220 N. Y. 741. Insurance Policies 583 IV. That at divers times during the continuance of de- fendant's said agreement, said M. N. while in the perform- ance of his duties as an employee of plaintiff and in connec- tion therewith, dishonestly and fraudulently embezzled and stole from plaintiff, and appropriated to his own use,'^ divers sums of money amounting in the aggregate to dol- lars, no part of which has been in any manner repaid to plaintiff, and by reason whereof plaintiff has suffered a pecuniary loss in said sum. V. That said larceny and embezzlement was not dis- covered by plaintiff until ; that upon such discovery plaintiff immediately gave due notice to and informed de- fendant thereof, and within sixty days after said discovery gave full particulars of the claim herein set forth in writing to defendant. VI. That plaintiff has duly performed all the conditions of said agreement on his part, and that more than months have elapsed since defendant received due proof of the aforesaid larceny and embezzlement, and pecuniary loss to plaintiff. VTI. That defendant has paid no part of said sum. Wherefore [etc., demand for judgment]. ' 553. On Credit Guaranty Insurance."" I. That plaintiff at all the times hereinafter mentioned was and now is engaged in business at as [a manu- facturer and dealer in clothing at wholesale throughout the United States]. II. [Defendant's corporate capacity, as in Form 510, adding] and at the times hereinafter mentioned was lawfully doing business as an insurer of credit, and duly authorized so to do. '= The felonious intent is essential App. Div. 186, 144 N. Y. Supp. 424, in order to constitute the crime on where a judgment for plaintiff was which defendant's liabiUty is rested, upheld. Marcus v. Fid. & Dep. Co., 164 App. Ambiguous phrases in such con- Div. 859, 149 N. Y. Supp. 1020. tracts will be construed in favor of " Adapted from complaint in Black the insured. Paskusz v. Phila. Cas. Co. V. London, etc., Co., Lim., 159 Co., 213 N. Y. 22. 584 Abbott's Forms ok Pleading JII. That at , and on or about the day of ,19 , in consideration of the payment to it by plaintiff of dollars premium, and the agree- ments therein contained, defendant entered into an agreement with plaintiff, a copy of which is hereunto annexed marked "A" and made part hereof [annex copy of policy]. IV. [Show a liability under the policy; the allegations in the precedent were substantially as follows:] That plaintiff's total gross sales and deliveries made in the course of his business during the year beginning , 19 , and ending , 19 , both dates inclusive, amounted to the sum of dollars, on account of which gross sales and de- liveries losses were sustained by plaintiff occurring through the insolvency of debtors, as defined in said contract, to the extent of dollars; that a statement of the names of such debtors, the place where each did business, and the amount of the loss in -case of each such debtor, is annexed hereto marked "B" and made a part hereof- V. That by virtue of the terms of said contract, plaintiff was bound to bear an initial loss of [one and one-half] per cent upon his 'gross sales and deliveries covered by the terms of said contract, which made the initial loss to be borne by plaintiff dollars, and the defendant be- came indebted to plaintiff under the terms of said contract, on the day of , 19 , in the sum of dollars, the same being said loss of dollars sustained by the plaintiff, less the initial loss of dollars to be borne by plaintiff. VI. That plaintiff has duly performed all the conditions of said contract on his part; that the defendant has failed and neglected to pay to plaintiff said sum of dollars within days after the receipt by it of final proof of loss [or otherwise as the policy may provide], although pay- ment thereof has been duly demanded and said sum is now due and payable. Wherefore [etc., demand for judgment]. Insurance Policies 586 664. Insurance Against Burglary .^^ I. [Defendant's corporate capacity, as in Form 510, contin- uing:] and engaged in the business of burglary and othet kinds of insurance, within the State of New York and else- where. II. That plaintiff at all the times hereinafter mentioned was [and now is] engaged in the business of , at , and that the [ floors of the] building on said premises was and is solely occupied by plaintiff. III. That in and by its policy of insurance No. , dated on the day of , 19 , duly executed and deUvered to plaintiff, defendant in consideration of the payment to it of a premium of dollars, insured plaintiff against loss or damage by burglary, and therein agreed to make good to the plaintiff all loss or damage to [state what], which plaintiff might suffer by reason of the said [goods] being feloniously abstracted from the interior of the aforesaid premises by any person or persons who made forcible and violent entry into said premises or exit therefrom,'' not exceeding in amount the sum of dollars, and which loss or damage should happen between said day of , 19 , and the day of , 19 ; and it was further provided in said policy that any such loss should be paid immediately upon the giving of proof of the same by plaintiff, but that no action should be commenced thereon until days after the particulars of the loss had been furnished to defendant. [Or, annex and refer to a copy of the policy: and if pleading its legal effect, as above, follow accurately the provisions of the particular policy.] '' " Adapted from the complaint in should be alleged, and also alleged Manson v. Met. Surety Co., 199 N. Y. and proven to be satisfied. Rosen- 590, where a recovery for plaintiff thai v. Am. Bonding Co., 207 N. Y. was sustained; with no question of 162. pleading directly involved. ^ If the policy requires the in- ** If the policy further requires, "of sured's books and accounts to be so which force and violence there shall kept as to accurately determine the be visible evidence," this provision actual loss, this is a condition prece- 586 Abbott's Forms of Pleading IV. That on or about the day of i 19 , while said policy was in full force and effect, [state burglary, as:] the premises so solely occupied by plaintiff were broken into and forcibly and violently entered by some person or persons, and there were feloniously abstracted therefrom [state the articles], belonging to plaintiff, and of the value of dollars; that attached hereto marked "A" and made part hereof, is an itemized statement of the goods so stolen, with the values thereof. V. That immediately upon the discovery of such loss plaintiff duly notified the defendant thereof, and made due proof of the loss according to the requirements of said policy of insurance, and has duly performed all the conditions of said policy on his part. VI. That more than days have elapsed since the furnishing to defendant of due particulars of said loss,"" but that defendant has paid to plaintiff no part thereof. Wherefore [etc., demand for judgment]. 555. On Title Insurance Policy. [Complaint sustained in Glyn v. Title Guarantee & Trust Co., 132 App. Div. 859, 117 N. Y. Supp. 424.] I. That the defendant is a domestic corporation, organized for the purpose, among other things, of examining and in- suring titles to real esta,te, for hire and profit. II. That in or about the month of , 19 , for a consideration then and there paid to it by plaintiff, the defendant issued and delivered to plaintiff its policy of title insurance upon premises known as [briefly describe], which said premises were then being purchased by plaintiff from one M. N. dent, and a failure to comply there- of loss and the premium, this results with defeats a recovery. Rosenberg in a waiver of the requirement of V. Peo. Surety Co., 140 App. Div. time, but the facts establishing the 436, 125 N. Y. Supp. 257; Wolowitch waiver should be pleaded. See Reese V. Nat. Surety Co., 152 App. Div. 14, v. Fidel. & Dep. Co., 93 Misc. 31, 166 136 N. Y. Supp. 793. N. Y, Supp. 408. "» If defendant returns the proofs Insurance Policies 587 III. That in and by its said policy dated on the day of , 19 , defendant insured plaintiff against all loss and damage, not exceeding the sum of dol- lars, which plaintiff should sustain by reason of any defect or defects of title affecting said premises or affecting the interests of plaintiff therein or by reason of the immarket- ability of the title, or by reason of liens or incumbrances at the date of the policy, excepting as the said policy might save or exempt [or otherwise state defendants agreement in accordance with the facts\. IV. That the following exceptions and none other were contained in said policy, and were saved and exempted from the provisions thereof: [quote]. V. [Set forth the facts showing a defect or incumbrance on the title; see Form 931 .] VI. That by reason of the premises plaintiff has been damaged in the sum of dollars.'"^ "• This was held a sufficient allega- and their value free from such de- tion of damage to enable plaintiff to fects. Glyn v. Title Guarantee & recover the difference in value be- Trust Co., supra. tween the premises with the defects, CHAPTER XIX COMPLAINTS IN ACTIONS FOB RENT ^ PAGE 556. Lessor against lessee 588 557. The same, setting forth copy 589 558. By lessor against lessee holding over 590 559. Lessor against assignee of lessee 591 560. Lessor against the executors of the lessee 592 561. Grantee of lessor, against lessee 593 562. Assignee of rent against lessee 594 563. Heir or devisee of reversioner against lessee 594 564. Assignee of the devisee of the reversion and rent, against an as- signee of part of the premises 595 565. Against tenant who enters under void lease 596 666. Lessor against Lessee.^ [Adapted from Lambden v. Thompson, 173 App. Div. 267, 159 N. Y. Supp. 242; HurUman v. Seckendorf, 9 Misc. 264, 29 N. Y. Supp. 740.] I. That heretofore and on or about the day of , 19 , plaintiff leased to defendant [set forth briefly the identity of the premises, as:] ' the dwelling, known as No. street, in the city of , [briefly state terms of ' Forms for actions for Use and and must be brought by the cov- Occupation are given in Chapter IV, enantee even though he were a mere supra. agent. Schaefer v. Henkel, 75 N. Y. See, also, complaints in actions be- 378, 7 Abb. N. C. 1. See a discussion tween Landlord and Tenant, under as to whether the agreement under Chapter XXIII, Breach of Conve- consideration was a lease or an agree- nant. ment to make a lease, in People v. St. ^ If the rent be claimed under a Nicholas Bank, 3 App. Div. 544, 38 sealed lease, the action should be on N. Y. Supp. 379. the instrument [McKeon v. Whitney, ' "Certain premises owned by the 3Den. (N.Y.)452;Kierstedw. R. Co., plaintiff" is too indefinite. Post v. ,69 N. Y. 343; contra, that it may be Blazewitz, 13 App. Div. 124, 43 N. Y. for use and occupation, 97 Mich. 423], Supp. 59. 588 Actions for Rent 589 lease, as:] for the term of years, from the day of , 19 , at the yearly rent of dollars, which said smn the defendant agreed to pay [in monthly installments of dollars on the first day of each month in advance]. II. That the said defendant [entered and occupied * said premises but] has not paid the rent therefor for [the months of ],^ amounting to dollars [which is the reasonable value of the use. thereof for such period]. III. That the plaintiff has duly performed all the condi- tions of said lease on his part.^ Wherefore [etc., demand of judgment]. 657. The Same, Setting forth Copy.^ I. That on or about the - day of , 19 , the plaintiff and defendant entered into an agreement of * If plaintiff relies on a written lease unsealed, he should sue on the instru- ment, but if he is prepared to prove occupation he should allege occupa- tion although declaring upon the lease; for if proof of the writing fail he can recover under the pleading, for use and occupation. Thomas v. Nel- son, 69 N. Y. 118; Prial v. Entwistle, 10 Daly (N. Y.), 398. But plamtiff is not bound to allege or prove occu- pation to recover under a lease. Gil- hooley v. Washington, 4 N. Y. 217; Mayer v. Lawrence, 58 lU. App. 194; Havemeyer v. Switzer, 15 Misc. 629, 37 N. Y. Supp. 352. And if he merely alleges use and occupation by the defendant he cannot recover upon a specific contract of rental. Sherman V. Ludin, 84 App. Div. 579, 82 N. Y. Supp. 1032. 'The period of arrears should be averred. Post f. Blazewitz, 13 App. Div. 124, 43 N. Y. Supp. 59. All the rent accrued at time of commence- ment of action, as well as all existing causes of action for breaches of other covenants contained in the lease, must be included, for a recovery will bar a subsequent action therefor. Goldberg v. Eastern Brewing Co., 136 App. Div. 692, 121 N. Y. Supp. 465; Jex V. Jacob, 19 Hun (N. Y.), 105, 7 Abb. N. C. 452. Non-payment must be averred. Cochran v. Reich, 91 Hun, 440, 36 N. Y. Supp. 233. ° If the rent is payable monthly in advance, this allegation is imma- terial and unnecessary, as the land- lord's action is complete on the first day of the month. Hurliman v. Seckendorf, 9 Misc. 264, 29 N. Y. Supp. 740. ' On demurrer the copy annexed controls over any conclusions Or qual- ifications of its provisions. Kienle v. Gretsch Realty Co., 133 App. Div. 391, 117 N. Y. Supp. 500. See, generally, notes to preceding form. 690 Abbott's Forms of Pleading lease of which a copy is hereunto annexed, marked "A" and made a part hereof. II. That plaintiff has duly performed all the conditions on his part. III. That defendant has not paid the rent for the month [or, quarter, or, othenoise] ending [or, beginning] , amounting to dollars. Wherefore [etc., demand of judgment]. 568. By Lessor against Lessee Holding Over.^ I. That in or about the month of , 19 , by an agreement made and entered into between the plaintiff and the defendants, the plaintiff leased to the defendant a certain [dock or wharf, and a lot of land adjacent thereto, lying and situate in the town of , county of ,] for the term of [one] year from the day of , 19 , at the yearly rent of dollars, payable in equal monthly payments [in advance] on the first day of each month, and the defendant agreed to pay said rent as afore- said. II. That said defendant entered into the possession and occupation of said premises pursuant to said agreement. III. That after the expiration of said lease, to wit on the day of , 19 , said defendant continued ' A lessee holding over after the ex- The theory of this action in New piration of his term may be held as York is that the landlord has elected a tenant for another year on the to consider the tenant who holds over terms of the prior lease. Schuyler v. as a tenant for a new term, under an Smith, 51 N. Y. 309; Baylies v. In- implied agreement arising by opera- gram, 84 App. Div. 360, 82 N. Y. tion of law. Id. Supp. 891, aff'd 181 N. Y. 518. Each If the landlord refuses to allow the renewed term constitutes a separate tenant to continue to hold over, and contract. Kennedy v. City of N. Y., ousts him by summary proceedings, 196 N. Y. 19. he has an action upon the tenant's A grantee of the lessor, or a lessee breach of covenant to surrender pos- of the lessor whose term begins at the session. See Vernon v. Brown, 40 termination of the occupant's lease, App. Div. 204, 58 N. Y. Supp. 11, and may bring the action under § 223 of form of complaint in Chapter XXIII, the N. Y. Real Property Law. N. M. post. Realty Co. v. Roth, 193 N. Y. 570. Actions for Rent 591 and remained in the possession and occupation of said prem- ises, whereby he elected to continue his tenancy for another year, commencing on the day of , 19 , upon the same terms and at the same rent as in and by said lease provided; that plaintiff thereupon duly elected to hold said defendant as a tenant for such further term. IV. That the defendant has not paid the rent for the months of , 19 , amounting to the sum oi dollars. Wherefore [etc., demand of judgment]. 569. Lessor against Assignee of Lessee.^ I. That on or about the day of , 19 , by a lease in writing, then made between this plaintiff and one M. N., [of which a copy marked "A" is annexed as part of this complaint] " plaintiff leased to said M. N. [briefly desig- nate leased premises], from the day of , 19 , for the term of then next ensuing, for the yearly rent of dollars, payable to plaintiff [monthly] on the [state days of payment], which rent said M. N. did thereby for himself and his assigns covenant to pay to the plaintiff. [II. That by virtue thereof, said M. N., on or about the day of ; 19 , entered into possession of the said demised premises.] III. Ttat thereafter, and during said term, to wit, on or about the day of , 19 > [naming a day before the breach], said M. N. duly assigned all his interest in said lease and the unexpired term to the defendant," J • ' By the assignment a privity of " If a copy is annexed, the court estate is created under which the will look to the instrument for its landlord may bring an action directly terms, and not be bound by the legal against the assignee for rent. Mead effect as stated in the pleading. V. Madden, 85 App. Div. 10, 82 N. Y, Kienle v. Gretsch Realty Co., 133 Supp. 900. This form is supported by App. Div. 391, 117 N. Y. Supp. 500. Holsman v. De Gray, 6 Abb. Pr. (N. " Where the plaintiff seeks to re- Y.) 79. The assignee is not liable cover against the assignees of the either for use and occupation, or upon term, and is ignorant whether they a quantum meruit. Walton v. Staf- hold jointly or severally, and if sev- ford, 14 App. Div. 310, 43 N. Y. erally, in what proportion, he may al- Supp. 1049, aff'd 162 N. Y. 558. lege the facts accordingly, and pray 592 Abbott's Forms of Pleading subject to all the terms and conditions contained in said lease; that the defendant accepted said assignment, and on said day entered into possession of the said demised prem- ises and has since continued in possession thereof,*' IV. That on the day of , 19 , the sum of dollars rent for the [month] ending on that day [or, othenoise] became due to the plaintiff from the defendant, but no part thereof has been paid.*' Wherefore [etc., demand of judgment]. 660. Lessor against the Executor of the Lessee.*^ I. [As in preceding Korm 559, against assignee.] II. That by virtue thereof, said M. N., on or about the day of , 19 , entered upon the demised judgment against them jointly, if it should turn out they were jointly liable, or severally for theis- proper portions, if their liability should prove to be several. Van Rensselaer V. Layman, 10 How. Pr. (N. Y.) 505. As to liability of one who has ac- quired possession without a valid as- signment, see Carter v. Hammett, 12 Barb. (N. Y.) 253; Ryerss v. Farwell, 9 id. 615. " The assignee is liable upon the covenants of the lease only for the rent becoming due during the time in , which he has possession of the prem- ises. Marone v. Hinckel Brewing Co., 126 App. Div. 554, 110 N. Y. Supp. 601; Frank v. N. Y. Lake Erie, etc., R. R. Co., 122 N. Y. 197. Unless in the assignment he has expressly cov- enanted to pay the rent. Dassori v. Zarek, 71 App. Div. 538, 75 N. Y. Supp. 841. He is not liable for use and occupation. Cameron v. Nash, 41 App. Div. 532, 58 N. Y. Supp. 643; Walton V. Stafford, supra. An assignment of a lease may be in- ferred from evidence that the de- fendant took possession from lessees and occupied the premises for the re- mainder of the term. Benoliel v. Brooklyn Brewing Co., 144 App. Div. 651, 129 N. Y. Supp. 606; Coit v. Planer, 51 N. Y. 647. He becomes liable, through privity of estate, upon all covenants running with the land and broken while he is in possession, including payment of rent. Frank v. R. R. Co., supra. '' It is suflBcient to show that rent which accrued subsequent to the as- signment, and during the assignee's possession is unpaid; and it is unneces- sary to aver, in addition, that the lessee has not paid it. Dubois v. Van Orden, 6 Johns. (N. Y.) 105; Van Rensselaer v. Bradley, 3 Den. (N. Y.) 135. A judgment against the original lessee for the same period is not a bar to an action against the assignee. Schlesinger v. Perper, 70 Misc. 250, 126 N. Y. Supp. 731. '* This form is supported by Pugs- ley V. Aikin, 11 N. Y. 494. Actions for Rent 593 premises, and was in possession thereof until his death as hereinafter set forth. III. [Allege death of M. N., and defendant's appointment as executor, as in Form 64-] .IV. That as such executor the defendant took possession of and occupied the premises under said lease. V. That the sum of dollars of said rent for the [month] ending on [before the lessee's death], became due on said day to the plaintiff from said M. N., but no part thereof has been paid. VI. That after the death of said M. N., as aforesaid, and while the defendant was so in possession, the sum of dollars of said rent for the [month] ending on, etc, on that day became due to the plaintiff from the defendant, but no part thereof has been paid.^* Wherefore [etc., demand of judgment]. 561. Grantee of Lessor, against Lessee. I. That one M. N., who was then the owner in fee of cer- tain premises [very briefly designate them], on or about the day of , 19 , by a lease in writing then made between him and the defendant [a copy of which marked "A" is annexed as part of this complaint], leased to the defendant the said premises from the, day of , 19 , for the term of , then next ensuing, for the yearly rent of dollars, payable to said M. N., his heirs and assigns, on the [state days of payment], which IS Demands for rent which accrued for rent accruing after the lessee's in the lifetime of a decedent, and for death, is no longer in force. Green- rent accruing after his decease, while leaf v. Allen, 127 Mass. 248. the tenancy was continued hy the ex- If the representative takes posses- eculor on account of the estate, are sion of the leased premises, he is also properly joined as one cause of action liable personally, and an action may in a suit against the executor as such, properly be brought against him both Pugsley V. Aikin, 11 N. Y. 494; re- individually and as such representa- verang 14 Barb. (N. Y.) 114. tive, under Code Civ. Pro., § 1815. The common-law rule, that cove- Leggett v. Pelletreau, 213 N. Y. 237. nant and not debt must be brought See, also, note to Form 61. 594 Abbott's Forms of Pleading rent the defendant did thereby covenant to pay to said M. N., his heirs and assigns, accordingly. II. That by virtue thereof, the defendant entered into possession of the demised premises, and is in possession thereof. III. That thereafter, and on or about the day of ,19 , said M. N. duly sold and conveyed to this plaintiff the demised premises of which the defendant had due notice.^* IV. That thereafter, to wit, on or about the day of , 19 , the sum of dollars of said rent, for the quarter ending on that day [or, otherwise], became due to the plaintiff from the defendant; but no part thereof has been paid." Wherefore [etc., demand of judgment]. 662. Assignee of Rent against Lessee. ^^ [7 and II as in preceding form.] III. That thereafter, and on or about the day of , 19 , said M. N. duly assigned to plaintiff all his right to the rent therein secured, and due or to grow due under said lease. IV. [As in preceding form.] Wherefore [etc., demand of judgment]. 563. Heir or Devisee of Reversioner against Lessee." I. That one M. N., now deceased, who was in his lifetime " This allegation is suflBciently spe- own name, should allege distinctly, cific. Earle v. McGoldrick, 15 Misc. that there was a lease, that the de- 135, 36 N. Y. Supp. 803. fendant was lessee, and is sued for the The complaint should show the rent. Willard v. Tillman, 2 HiU (N. assignments or conveyances by which Y.), 274. the plaintiff claims title; and if there " Upon death of landlord the right are several, they should all be stated. to receive the rent passes to his heirs See Beardsley v. Knight, 4 Vt. 471; at law or devisee. A devisee may s. p., Davis V. James, 50 Law Times effectively assign his right without R. (N. S.) 115. probate of will, if he be also the " Demand is not necessary. Mc- heir at law. Lambden v. Thompson, Murphy v. Minot, 4 N. H. 251. 173 App. Div. 267, 159 N. Y. Supp. " The assignee of rent, suing in his 242. Actions for Rent 595 the owner in fee of the premises hereinafter mentioned, [etc, state the lease and the covenants which were broken, as in Form 656.] II. That the said M. N. afterwards, and on or about the day of- , 19 , died intestate seized in fee of said premises; that thereupon the title to the said premises descended to the plaintiff who was his son and only child and sole heir at law [or otherwise show plaintiff the heir at law] ;. and thereby the plaintiff then became seized thereof in fee. [In case plaintiff is the devisee, allege: ■ II. That on or about the day of , 19 , said M. N. died leaving a last will and testament wherein he devised said premises to plaintiff; that said will was duly admitted to probate by the surrogate of the County of on the day of , 19 .] III. That thereafter, to wit, on, etc., the sum of dollars of said rent, for the quarter ending on that day [or, otherwise], became due to the plaintiff from the defend- ant; but no part thereof has been paid. Wherefoee [etc., demand of judgment]. 664. Assignee of the Devisee of the Reversion and Rent, against an Assignee of Part of the Premises.^" I. That one M. N., was heretofore the owner in fee of certain premises [very briefly designate them]; that on the. day of , 19 , by lease in writing then made between him and one 0. P. [a copy of which marked "A" is annexed as part of this complaint], leased to said O. P. said premises from the day of , 19 , for the term of , then next ensuing, for the yearly rent of dollars, payable to said M. N., his heirs and assigns, on the [state days of payment], which rent O. P. did thereby covenant to pay to said M. N., his heirs and assigns accordingly. II. That thereafter, and during said term, to wit, on or ™ This form is supported by Van Rensselaer v. Bonesteel, 24 Barb. (N. Y.X 365. 596 Abbott's Forms of Pleading about the .day of ,19 [naming a day before the breach], said O, P. duly assigned all his interest in a [one-half] part of the land to the defendant. III. That by virtue thereof the defendant on or about said day entered upon the demised premises, and thereafter has been possessed thereof. IV. That on or about the day of , 19 , said M. N. died, having by his last will and testament de- vised the said premises in fee to one Q. R., which said will was duly proved and- recorded as a will of real estate before the surrogate of the county of , on, etc. V. That Q. R., on or about the day of , 19 , duly conveyed and assigned said premises, and the rent accrued and to accrue under said lease to the plaintiff. VI. That thereafter, to wit, on or about the day of , 19 , the sum of dollars of said rent, for the quarter ending on that day [or, otherwise], became due to the plaintiff from the defendant; but no part thereof has been paid. Wherefore [etc., demand of judgment]. 565. Against Tenant who Enters under Void Lease. ^^ I. That at and on or about the day of , 19 , plaintiff and defendant made an oral agree- ment wherein plaintiff leased to defendant premises known as [describe] for the term of [three years] commencing on the day of , 19 , and defendant in con- sideration thereof agreed to pay to plaintiff dollars per year rent therefor [in equal monthly installments]., II. That on said day of , 19 , defendant with plaintiff's consent entered into possession of said prem- ises. "' If the tenant enters with the monthly instalhnents) the law will landlord's consent, and pays rent ac- raise a tenancy from year to year, cording to the terms of the void Karsch v. Kalabza, 144 App. Div. lease, if the terms provide for an 305, 128 N. Y, Supp. 1027. annual rental (though payable in Actions for Rent 597 III. That defendant asserts that said oral lease is void. IV. That defendant duly paid to plaintiff the monthly installments of rent for the months of [state], but has failed and refused to pay plaintiflf the rent for the months of [state], amounting to dollars. Wherefore [etc., demand for judgment]. CHAPTER XX COMPLAINTS ON NON-NEGOTIABLE NOTES, AND ORDERS PAGE 566. On a note payable in case the proceeds of the maker's business exceed a certain sum 598 567. On a note payable in chattels 599 568. Complaint on an accepted order for payment of money on condition 600 566. On a Note Payable in Case the Proceeds of the Maker's Business Exceed a Certain Sum. I. That on or about the day of , 19 , at , the defendant, for value received • [or, in con- sideration of, etc., setting out the consideration], made and delivered to the plaintiff ^ his note or written obhgation, of which the following is a copy : $100 Brooklyn, 1st January, 1918. For value received, I promise to pay to A. B. one year after date, one hundred dollars, in case the proceeds of the milk route I have this day bought of him shall exceed the sum of two thousand dollars. (Signed) Y. Z. ' See Form 327, and notes thereto, allege that the plaintiff has given or If the agreement as set out admits tendered the consideration. This is receipt of a consideration, a separate matter of substance and not of form, averment of the payment of con- and the burden of proof is on plaintiff sideration is unnecessary. If the to allege and show it. Considerant v. instrument set forth does not express Brisbane, 14 How. Pr. (N. Y.) 487; or import a consideration, the con- s. p.. Winch v. Farmers' Loan & Trust sideration must be averred. See Co., 11 Misc. 390, 32 N. Y. Supp. 244. general note on consideration, on * If the plaintiff claims as assignee, page 21, and cases there cited. If substitute "to M. N., the payee it specifies a consideration, and states therein named," in place of the words, that such consideration has not been "the plaintiff," and add an allegation received, and also states, or clearly of assignment to the plaintiff. Aver- implies, that the consideration, is to ring an indorsement to him isnotap- be transferred when the money is propriate. Brown ». Richardson, 20 to be paidj the complaint must N. Y. 472. 598 Non-negotiable Notes and Ordebs 599 II. That the proceeds of said milk route did, before the ex- piration of said year, exceed the sum of two thousand dollars [of which the defendant, on or about the day of , 19 , had due notice, and payment of said note was then and there duly demanded].^ III. That no part of said note has been paid [except, etc.] ; and there is now due to this plaintiff thereon, from the de- fendant, the sum of dollars, with interest from, etc., which. plaintiff claims. Wherefore [etc., demand of judgment]. 567. On a Note for an Amount of Money, Payable in Chattels. I. That on or about the day of , 19 , at , the defendant, for value received [or, when the consideration is described in the note, for a valuable considera- tion therein expressed, or, where no consideration is mentioned, for and in consideration of, etc., stating the real consideration,* whatever it may have been], made and delivered to the plaintiff his note in writing, of which the following is a copy: "For value received, I promise to pay Martin Gilbert three hundred and sixty-two dollars and fifty cents in cast- ings,^ such as said Gilbert shall select and direct, such as are cast at the Middleburgh furnace, which I agree to de- liver at Gilbert's dwelling house at Ghent, in Columbia county, at 43^ cents per pound, to be dehvered within or by the first day of March next, and agree to deliver some cast- ings, as it may be convenient for me to deliver, soon; said Gilbert to give timely notice what castings he will select or want; and in default thereof, I agree to pay the money for such part as is not paid in castings. ' If the contingency upon which ' Upon such a note the measure of the payment was to depend is one damages in this State is the sum of which is not pecuUarly within the money named, not, the value of the defendant's knowledge, this aver- goods. Pinney v. Gleason, 5 Wend, ment of notice and demand, or its (N. Y.) 393; Rockwell v. Rockwell, 4 substance, should be inserted. Hill (N. Y.), 164; and see Gilbert v. ♦ See note 1 to Form 566 and refer- Danforth, 6 N. Y. 685, from which ences there given. precedent is taken. 600 Abbott's Forms of Pleading "June , 19 . (Signed) Thos. P. Danforth." II. That the plaintiff thereafter duly performed all the conditions of the same on his part/ and has always been ready and wilUng to receive the said castings. III, That no part thereof has been delivered ^ [except, etc.], and no portion of said sum has been paid. Wherefore [etc., demand of judgment]. 568. Complaint on an Accepted Order for Payment of Money on Condition.' I. That on or about the day of , 19 , one M. N. made and dehvered to plaintiff an order upon de- fendant, of which the following is a copy : * • A note payable in specific articles, without specifying time or place, is I^iyable on demand, and a special de- mand is necessary. Lobdell v. Hop- kins, 5 Cow. (N. Y.) 516; but com- pare Barns v. Graham, 4 id. 452. If the maker deals in the chattels in which payment is to be made, his place of business is the proper place to make demand. And a demand may be made there of any person in charge, in the absence of defendant. It is otherwise of ordinary contracts for delivery of goods, specifying no place. Vance v. Bloomer, 20 Wend. (N. y.) 196; Rice v. Churchill, 2 Den. (N. Y.) 145. That he is not bound to demand all at once, see Vance v. Bloomer, 20 Wend. (N. Y.) 196. On a note payable in goods, at or before a day named, no demand need be averred. A demand is only neces- sary if the holder would exercise an election as to the articles. Johnson V. Seymour, 19 Ind. (Kerr) 24. The indorsement of a note not negotiable, is equivalent to the mak- ing of a new note, and the indorser in such a case haa no right to insist upon a previous demand on the maker. Seymour v. Van Slyck, 8 Wend. (N. Y.) 403; aff'd, sub nam. Stone V. Seymour, 15 id. 9. ' In declaring on a note for a sum of money payable in specific articles, it is enough to allege non-payment of the money, without alleging non- delivery of the articles. Rockwell «. Rockwell, 4 HiU (N. Y.), 164. ' Adapted from complaints in Jack- man V. Bowker, 4 Met. (Mass.) 235, and Tooker v. Amoux, 76 N. Y. 397; also from decision in Mayer, etc., Co. V. Weinstein Co., 87 Misc. 150, 149 N. Y. Supp. 1045. If an es- toppel is to be relied upon, it must be expressly charged. Gooding v. Underwood, 89 Mich. 187, 50 N. W. Rep. 818. ' Such an order operates as an equitable assignment, but only in case of the moneys becoming due for the work to be done; a complaint is fatally defective which declares upon such an order as a draft for the absolute payment of the money, and fails to allege the drawer's com- pletion of the work so as to show that the payment has become due. Mayer, etc., Co. V. Weinstein Co., 87 Misc. 150, 149 N; Y. Supp. 1045, and cases cited. Non-negotiable Notes and Orders 601 Y. Z.: [Date.] Please pay M. N. or order $300, if the same may be due him from me on his and my settlement, out of the last pay- ment due from you to me on houses which I am now building for you, and charge the same to my account. M. N. II. That thereafter, and on or about the day of , 19 , the defendant duly accepted said order, and promised to pay said sum to plaintiff, as in and by said order provided. III. That thereafter, to wit, on- or about the day of , 19 , the said M. N. and plaintiff did account and settle together,, and thereby it was found that there was due and payable from said M. N. to plaintiff the afore- said simi of $300. IV. That said M. N. duly completed said houses and the aforesaid last payment upon said houses, from said de- fendant to said M. N., has long since been and is now due and impaid, and is more than the said sum of $300. V. That after said settlement between said M. N. and plaintiff, and on the same day thereof as aforesaid, and after said last payment from defendant to said M. N. had become due and was unpaid, plaintiff duly demanded of defendant the said sum of $300, and did then and there give notice to said defendant that the settlement as aforesaid had been theretofore made between said M. N., and exhibited due proof thereof to said defendant. VI. That said defendant refused and still refuses to pay said sum of $300, or any part thereof, and the same has not been paid to plaintiff. WHEREFORE,[ete., demand of judgment]. CHAPTER XXI COMPLAINTS ON STOCK SUBSCRIPTIONS ^ PAGE 569. Subscription to corporation's stock, made in its certificate of incor- poration 602 570. The same, made by agreement prior to incorporation. 603 571. The same, by subscription subsequent to incorporation 605 572. On a subscription to the expenses of a public enterprise 607 569. Subscription to Corporation's Stock, Made in Its Certificate of Incorporation. [From complaint in Rathbone v. Ayer, 121 App. Div. 355, 105 N. Y. Supp. 1041; Phoenix Warehousing Co. v. Badger, 67 N. Y. 294.] " I. [Allege plaintiff's incorporation, as in Forms 4^-45. \ II. That the defendant and certain other persons duly subscribed the certificate of incorporation of the plaintiff, which said certificate was dated and executed at the city of , in the county of , on or about the day of , 19 , and the same was thereupon duly ac- ' These are actions to enforce a balance due, and interest at the rate common-law contractual liability; a prescribed by the foreign statute, statute limiting the recovery against states but a single cause of action, a stockholder to his pro rata share of Signa Iron Co. v. Brown, 19 App. the debts, if it be less than the Div. 143, 45 N. Y. Supp. 989. amount unpaid upon his stock sub- ' See, also, Rathbone v. Ayer, 121 scription, is only putting into statu- App. Div. 355, 105 N. Y. Supp. 1041; tory form the rule in equity when ano. dec, 84 App. Div. 186, 82 N. Y. marshalling the assets. Stoddard v. Supp. 235; Poughkeepsie, etc., Co. Lum, 159 N. Y. 265 (holding that v. Griffin, 21 Barb. 454. The sub- an action by a foreign assignee to scription contained in the certificate recover their pro rata shares from resi- takes effect simultaneously with the dent stockholders is not to be con- filing of the certificate. Phoenix sidered based upon the foreign stat- Warehousing Co. v. Badger, 67 ute declaratory of the equity rule). N. Y. 294; Stevens v. Episc. Church A complaint on a subscription to History Co., 140 App. Div. 570, 125 stock of a foreign corporation for N. Y. Supp. 573. 602 Subscriptions to Stock 603 knowledged by the said subscribers thereto, and thereafter the same was by them duly filed in the office of the Secretary of State of the State of New York and clerk of county, where the same still remains on file; that a copy of said certificate, marked "A," is hereunto annexed, and made part of this complaint. III. That the amount of the capital stock of said plaintiff was fixed and prescribed by said certificate at dol- lars, divided into shares of dollars each; that said defendant duly subscribed therein for shares, of the par value of dollars each; that the remainder of said capital was duly subscribed by other parties.' [IV, V and VI as in Form 571 .] ' Wherefore [etc., demand of judgment]. 570. The Same, Made by Agreement Prior to Incorpora- tion.^ I. [For averment of incorporation, see Forms Jf2, etc.] ir. That prior to and in contemplation of the said incor- poration of plaintiff, the defendant, together with other persons, on or about the day of , 19 , at • ' Where the act under which the Co. v. Weed, 189 N. Y. 557, upon the dollars, which judgment was, on the day of , 19 , duly docketed in said coimty of , [the county where the premises are situated], and which judgment, at the time of execution and delivery of the deed as aforesaid, remained unpaid and unsatisfied of record, and a lien upon the said premises.'^ V. For further breach of said covenant the plaintiff al- ^ This covenant is broken by the delivery of the deed if the incum- brance on the land then exists (Geisz- ler V. De Graaf, 44 App. Div. 178, 60 N. Y. Supp. 651, aff'd 166 N. Y. 339); therefore, no eviction is neces- sary to a right of action on the covenant. Streeper v. Abelin, 59 Mo. App. 485. Even on covenant " to free land from all incumbrances," the assignment of breach should show an incumbrance. Juliand v. Burgott, 11 Johns. (N. Y.) 6; Thomas V. Van Ness, 4 Wend. (N. Y.) 549. Compare People v. Russell, Id. 570. » Under familiar principles, all ex- isting breaches should be sued for in the one action. ^ ' Allegations in a complaint that certain persons recovered judgments against the owner, which judgments were liens and incumbrances upon the said lot or parcel of land, at the time of the conveyance thereof as aforesaid, should be considered on the trial as embracing the fact of the docketing of the judgment and its legal effect; and a motion to dis- miss the complaint for want of an ex- press statement of that fact should be denied. Cady v. Allen, 22 Barb. (N. Y.) 388. So, also, before the Code, it was held that in an action on a note given for the price of land, where de- fendant gave notice that plaintiff, on conveying, covenanted to deduct from the note judgments outstand- ing against him that should be a lien upon the land, and paid by defend- ant; and that there were divers such judgments which defendant had been obliged to pay; this notice was sufficient to let in proof of any such judgment, etc., though no judgment was specified or described in the notice, for under such a covenant plaintiff could not be supposed to be surprised. Chamberlain v. Gorham,' 20 Johns. (N. Y.) 746; rev'g Id., 144. 624 Abbott's Forms of Pleading leges, that at the time of the execution and delivery of said deed the premises were subject to a tax ^ for [briefly specify purpose] theretofore duly assessed, charged and levied upon the said premises by the said county of , of the sum of dollars, which tax was then remaining due and unpaid, and was at the time of the delivery of said Hen an incumbrance by law upon the said premises. VI. That by reason of said incumbrances plaintiff was necessarily obliged to pay ' and did, on or about the day of , 19 , pay the sum of- dollars in extinguishing the said right of dower [or, the lien of the afore- said judgment, or, the said tax, or all of them].^" Wherefore [etc., demand of judgment]. * In Sullivan v. Hamilton, 13 App. Div. 140, 43 N. Y. Supp. 302, the complaint alleged a covenant against incumbrances, "excepting . . taxes of dollars;" that there was at the time of the conveyance an assessment imposed upon the prop- erty, which plaintiff had thereafter paid, and "that said assessment was not in the minds of the parties to said deed, or in the meaning of the word 'taxes' as used in the covenant." Held, against demurrer, that the alle- gation of intent was one of fact, and that the complaint was sufficient. ' Compulsion by suit or eviction is not necessary. Di Chiro v. Byrne, 163 App. Div. 109, 148 N. Y. Supp. 528; Prescott v. Trueman, 4 Mass. 627. '" If plaintiff has paid off the in- cumbrance he can recover the amount so paid, not exceeding the then value of the premises. Utica, etc., R. Co. V. Gates, 8 App. Div. 181, 40 N. Y. Supp. 316. If the plaintiff has not paid off the incumbrance, the com- mon-law rule is that he can recover "only nominal damages. See De- lavergne v. Norris, 7 Johns. (N. Y.) 358; Hall v. Dean, 13 id. 105; Stand- ard V. Eldridge, 16 id. 254; Foote v. Burnet, 10 Ohio, 317. But if the incumbrance is one, the release of which plaintiff cannot compel in any forum, it is for all practical purposes inextinguishable, and in such case plaintiff's measure of damages is the injury arising to him from the con- tinuance of the incumbrance, i. e., the difference in value of the land with or without the incumbrance. Geizler v. De Graaf, 166 N. Y. 339; Streeper v. Abelin, 59 Mo. App. 485. In such case those facts and the diminished value of the estate under the incumbrance should be alleged. Where the covenantee has paid off the incumbrance, the expenditure is a special damage, and should be specially averred. De Forest v. Leete, 16 Johns. (N. Y.) 122. It has been held, under the com- mon-law theory, that where the in- cumbrance is a money charge, there were two breaches of the covenant, one entitUng the covenantee to nominal damages (accruing at once) and the other entitling him to sub- stantial damages (accruing when he Breach of Covenant 625 586. The Same, where the Conveyance Excepted a Special Incumbrance. I. [As in preceding form.] II. That by said deed the said premises were conveyed subject to the payment of a certain mortgage " [or other in- cumbrance, describing it by date, name of parties, amount, and the place of record, as set forth in the deed\. III. That said deed contained a covenant on the part of the defendant, whereby, for himself, his heirs, executors, and administrators, covenanted and agreed to and with the plaintiff, his heirs and assigns, in the form provided by statute that the said premises then were free from incum- brances, except the mortgage aforementioned [or, set forth a copy of the covenant, as in preceding form]. IV. That at the time of making and dehvery of the said deed, the premises were not free from all incumbrances, other than the mortgage therein excepted, but [continue as in preceding form, from the*, showing character of other incum- brance, and amount paid in satisfaction thereof ].^^ Wherefore [etc., demand of judgment]. 586. On a Covenant for Quiet Enjoyment. ^^ I. That on or about the day of , 19 , the defendant [and M., his wife], for the consideration of had paid off the incumbrance); and of indemnity; nominal damages only that recovery for the prior breach may be recovered until the covenan- did not bar a recovery for the second. tee actually suffer loss. King v. Eaton V. Lyman, 30 Wise. 41, 33 id. Union Trust Co., 148 App. Div. 110, 34. 133 N. Y. Supp. 18. The amount paid in extinguish- " If the premises are described in ment of the incumbrance may be the granting part of the deed to be recovered, and where the statutory subject to a mortgage, such mortgage lapse of time has made a tax title cannot be held within a general cove- presumptively regular, plaintiff may nant against incumbrances. Free- recover on proof of the tax deed and man v. Foster, 55 Me. 508. amount he was obliged to pay. " See notes to preceding form as Dinning v. Brown, 148 App. Div. to measure of damage. 671, 133 N. Y. Supp. 314. " For complaint in action by lessee, The covenant is treated as one see Form 607. 626 Abbott's Forms op Pleading dollars to him then paid by plaintiff, conveyed to the plaintiff in fee simple, a farm in the town of , county of , described in the deed thereof as follows: [description]. II. That the deed of conveyance thereof contained a covenant on the part of the defendant, of which the following is a copy: [copy of covenant, or, whereby he covenanted, etc., stating its substance as in the preceding form]. III. That the plaintiff has not been permitted quietly to occupy and enjoy said premises, or to receive the rents and profits thereof; but, on the contrary, on or about the day of ) 19 , one M. N., who, at the time of making said deed, and continually from thence until the time of the eviction hereinafter mentioned, was the owner and entitled to possession of said premises, entered into and upon the same, and under a judgment duly entered on , in the court of , ejected and removed the plaintiff by due process of the law, from the possession and occupation of the same [or, if only a part, designate what part and its value], with the appurtenances, and has ever since kept plaintiff out of the same." IV. That by reason thereof the plaintiff has not only lost said [part of the] premises, but has also been obliged to_ pay the sum of dollars costs allowed to the said M. N. in prosecuting his said action for the recovery thereof, and the sima of dollars, for his own costs, charges 1* In assigning breaches on the tiff, is sufficient. Rickert v. Snyder, covenants of seizin, and of good right 9 Wend. (N. Y.) 416; Day v. Chism, to convey, it is sufficient to negative 10 Wheat. 449. the words of the covenant. Veit v. In order to maintain this action an McCauslan, 157 App. Div. 335, 142 eviction, actual or constructive, under N. Y. Supp. 281. But the covenants paramount title, must be shown, for quiet enjoyment, and of general Whitbeck v. Cook, 15 Johns. (N. Y.) warranty, require the specification 483, 8 Am. Dec 272. of an eviction by paramount legal It is not sufficient to show that the title. Alleging that A., having supe- premises were subject to a tax lien, rior title at the time of the execution Kidder v. Bork, 12 Misc. 519, 33 N. Y. of the deed, entered by virtue of due Supp. 663. process of law, and evicted the plain- Breach of Covenant (j27 and counsel fees in defending against said action, '"^ in all to his damage dollars. Wherefore [etc., demand of judgment]. 587. On Covenant of Seizin, and Right to Convey. [Sustained in Veit v. McCauslan, 157 App. Div. 335, 142 N. Y. Supp. 281.] I. That on or about the day of , 19 , the defendant [and M., his wife], for the consideration of dollars to him then paid by plaintiff conveyed to the plaintiff a farm in the town of , county of , described in the deed thereof as follows: [description],^ II. That said deed contained a covenant on the part of the defendant, of which the following is a copy: [copy of covenant, or, whereby he covenanted, etc., stating its sub- stance. See Form 585]. III. That at the time of the execution and delivery of said deed, defendant was not seized of said premises in fee simple, and did not have good right to convey the same [negativing the words of the covenant], but on the contrary one M. N. was then and still is the owner of said premises ^^ and entitled to the ^^ The rule generally prevailing is are agreed to be paid. Turner v. that the consideration money, with Miller, 42 Tex. 418. interest and costs, constitute the For breach of covenant for quiet measure of damages. Olmstead v. enjoyment implied- in a lease, the Rawson, 188 N. Y. 517; Campbell measure of damage is the value of the V. Bentley, 159 App. Div. 522, 145 unexpired term at the time of evic- N. Y. Supp. 92; Dickson v. Desire, tion over and above the rent reserved 23 Mo. 166; Wade v. Comstock, 11 by the terms of the lease. Mack v. Ohio St. 82; Mack v. Patchin, 42 Patchin, 42 N. Y. 167, 29 How. Pr. N. Y. 167, 1 Am. Rep. 506; McGary (N. Y.) 20, 1 Am. Rep. 506; Rolph v. V. Hastings, 39 Cal. 360, Cal. Civ. Crouch, Law R. (3 Ex.) 44. .Code, § 3304. Costs incurred in de- " It is held sufficient to aver the fending the title will include neces- breach by simply negativing the sary counsel fees and disbursements words of the covenant. Veit v. Mc- (Ohnstead v. Rawson, 188 N. Y. 517; Causlan, 157 App. Div. 335, 142 N. Robertson v. Lemon, 2 Bush, 301; Y. Supp. 281. But this method has Smithi). Sprague, 40 Vt. 43;Daltoni'. been held insufficient where, under Bowker, . 8 Nev. 190; Taylor v. covenants such as warranty or quiet Holter, 1 Mont. 688); but the rule is enjoyment, it is necessary to show otherwise in Texas, unless s&ch fees an eviction, or its equivalent. Lane 628 Abbott's Forms of Pleading possession thereof [or, was in actual and lawful possession of the said premises adversely to the defendant, and under a paramount title, by reason whereof plaintiff has been imable to obtain possession thereof].^''' IV. [// plaintiff has been evicted, allege:] That thereafter, and on or about the day of , 19 , said M. N. evicted plaintiff from said premises by due process of law. V. [Allege damage as in preceding form, paragraph IV.] Wherefore [etc., demand of judgment]. 588. On a Covenant of Warranty; — for Failure of Title. ^^ I. That on or about the day of , 19 , the defendant [and M., his wife], for the consideration of dollars to him then paid by plaintiff, conveyed to the plaintiflf a farm in the town of , county of , described in the deed thereof as follows: [de- scription]. II. That the deed of conveyance thereof contained a covenant on the part of the defendant, of which the following V. Fury, 31 Ohio St. 574; McGary v. Huff v. Cumberland, etc., Co., 30 Hastiags, 39 Cal. 360. S. W. Rep. 660 (Ky. 1895). An evic- " This is the equivalent of an tion is held complete when a con- eviction. Hunt V. Hay, 214 N. Y. structive dispossession has taken 578. See notes 14 and 18. place. Jones v. Warner, 81 111. 364; •' In order to sustain an action for McGary v. Hastings, 39 Cal. 360, breach of a general covenant of war- 2 Am. Rep. 456; R. R. Co. v. Dunn- ranty, possession by another under myer, 19 Kan. 539. Averring that paramount title, preventing plain- the plaintiff was lawfully evicted tiff's entry (Hunt v. Hay, 214 N. Y. from the right and title to said prem- 578), or an actual eviction or ouster ises by a paramount and lawful title of the plaintiff from the possession of to the same, does not import an. the whole or a part of the premises ouster from possession. Blydenburgh by process of law, or lawfully by par- v. Cotheal, 1 Duer (N. Y.), 176; com- amount title, must be averred and pare Day v. Chism, 10 Wheat. 449. proved [Rickert v. Snyder, 9 Wend. It is sufficient to allege an eviction (N. Y.) 416], or facts must be estab- by the holder of a paramount title, lished showing paramount title. [Bo- without pleading the facts. Cheney reel i;. Lawton, 90 N. Y. 293; Mead v. Staube, 35 Neb. 521. V. Stackpole, 40 Hun (N. Y.), 473; Breach of Covenant 629 is a copy: [copy of covenant of warranty. Or, allege its sub- stance; see Form 585]. III. That the plaintiff afterwards entered upon the prem- ises. IV. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, one M. N. at the time of making said deed was the owner thereof and had, and ever since has continued to have, lawful right to the premises by paramount title; that on or about the day of " , 19 , said M. N. lawfully entered the prem- ises, and evicted the plaintiff therefrom, and still lawfully holds him out of the same, to his damage dollars." [Or, if plaintiff has been unable to secure possession under the deed, omit paragraphs III and IV, substituting:] III. That the defendant has not warranted and defended the premises to this plaintiff; but, on the contrary, at the time of the making and deUvery of said deed, one M. N. was seized in fee and in possession of the premises, under a para- mount title, and lawfully then held and still holds this plain- tiff out of possession thereof, to his damage dollars.^" [Or, where the eviction was by recovery at law:] IV. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, one M. N., lawfully claiming the said premises by paramount title, afterwards " The measure of damages in an v. Bowker, 8 Nev. 190; Hoffman v. action for breach of warranty of title Bosch (Sup. Ct. Cal.), 4 West C. to land is the value of the property Eep. 36. at the time of sale, to be ascertained If plaintiff has suflfered damages by by the purchase price with interest way of costs in defending the title, thereon (or, if evicted from a part the fact should be alleged. See para- of the premises the value of such graph IV, Form 586. part; or from an undivided share It is no defense to the recovery of therein, the value of such share) ; to- the full sum paid, with interest, that gether with the costs recovered defendant paid to its agent for con- against plaintiff, and his own reason- summating the sale, a large portion able costs, if any, expended in de- of the amount as commission. Rash fense of the title. Hunt v. Hay, 214 v. Janne, 26 Oreg. 169, 37 Pac. Rep. N. Y. 578; Ohnstead v. Rawson, 188 538. N. Y. 517; Sweet v. Howell, 96 App. ^o gee Hunt v. Hay, 214 N. Y. Div. 45, 89 N. Y. Supp. 21; Dalton 578. 630 Abbott's Forms of Pleading brought an action in the Court, in which said M. N. was plaintiff, and this plaintiff was defendant, in which action due notice and opportunity to defend were given to the said defendant in this action,^' and said M. N. in said action did on or about the day of , 19 , recover judgment, which was duly given by said court against this plaintiff, for the seizin and possession of the premises, and afterwards and on or about the day of , 19 , [by virtue of a writ of execution duly issued thereon], lawfully entered the premises and evicted the plaintiff therefrom, and still lawfully holds him out of the same, to his damage dollars. Wherefore [etc., demand of judgment]. 589. The Same, for Partial Failure; Deficiency in Quan- tity. "^ I. That on or about the " day of , 19 , the defendant [and M., his wife], for the consideration of dollars to him then paid by plaintiff, conveyed to the plain- tiff a farm in the town of , county of , bounded and described as follows: [copy description]. II. That the deed of conveyance thereof contained a covenant on the part of the defendant, of which the follow- ing is a copy: [copy of covenant, or, whereby he warranted, etc., stating its substance. See Form 585]. III. That the said farm contained only [sixty] acres of land, instead of [ninety] acres, as described and warranted in said deed, to the plaintiff's damage dollars.^' Wherefore [etc., demand of judgment]. 21 If the covenantor has notice of N. Y. Supp. 1021. Cooper v. Watson, the action, the covenantee is not 10 Wend. 202. Oral notice is suf- bound to defend [Jackson v. Marsh, ficient. Miner v. Clark, 15 id. 425; 5 Wend. (N. Y.) 44], but may prop- but see Kelly v. Dutch Church of eriy do so; the judgment will be Schenectady, 2 Hill (N. Y.)., 105. conclusive against the covenantor ^' See, generally, the notes to pre- in this action, even if unduly un- ceding form. favorable to him. See Olmstead v. "' Such part of the original price Rawson, 188 N. Y. 517; Morette v, as bears the same ratio to the whole Bostwick, 127 App. Div. 701, 111 consideration that the value of the Breach of Covenant 631 590. The Same, by Remote Grantee of Covenantee. ^^ I and II. [Allege deed to covenantee and covenant, as in Form 588]. III. That the said [covenantee] afterwards, and on or about- the day of , 19 , by deed duly executed, in consideration of the sum of dollars, conveyed the said premises to one O. P., his heirs and as- signs; that the said O. P. thereafter and on or about the day of , 19 , by deed of that date, duly executed, in consideration of the sum of dollars, conveyed the said premises to plaintiff. [Continue as in Form 588.] " 591. The Same; Allegation of Plaintiff's Capacity as Heir at Law of Covenantee. III. That the said [covenantee] afterwards, and on the same day, entered into possession of said premises, and afterwards, and on or about the day of ~ , 19 , at , said M. N, died intestate, seized and possessed thereof; that thereupon the said premises, and his estate therein, duly descended to the plaintiff, who was and is the sole child and only hneal descendant and heir at law of the said M. N., deceased; and that afterwards, plaintiff duly entered into and continued in possession of said prem- ises, until ousted and dispossessed, as hereinafter alleged. land to which the title has failed N. Y. Supp. 527; Morris v. Hay, bears to the value of the whole 172 App. Div. 145, 158 N. Y. Supp. premises. Sweet v. Howell, 96 App. 206. The action by the direct cove- Div. 45, 89 N. Y. Supp. 21. nantee is not local. Hunt v. Hay, "* The remote grantee may sue the 214 N. Y. 578. Where the direct covenantor, but his right so to do covenantee has been obUged to make depends on privity of estate and not good to his grantee for an eviction, on privity of contract; such action is he may sue his covenantor in this local, and must be brought in the State regardless of the situs of the jurisdiction where the lands are property. Morris v. Hay, supra. situated, and the courts of one State ^^ The paramount title must be have no jurisdiction of the action alleged to have existed prior to the when the lands are situated in an- defendant's warranty. Morris v. other State. Keyes, etc., Co. v. Hay, supra. Trustees, 146 App. Div. 796, 131 632 Abbott's Forms of Pleading 692. The Same; Allegation of Plaintiff's Capacity as De- visee of Covenantee. III. That on or about the day of , 19 , said [covenantee] died, leaving a last will and testament, which was, on or about the day of , 19 , duly admitted to probate by the surrogate of the county of ; that in and by said will the aforesaid premises were devised to plaintiff in fee, and plaintiff thereupon en- tered into possession thereof and continued in such possession until ousted and dispossessed, as hereinafter alleged. 593. On a Grantee's Covenant to Build. 2" I. That in consideration that the plaintiff would sell and convey to the defendant a lot of land [very briefly describe its location and extent] for the sum of dollars, the defendant, on or about the day of , 19 > covenanted under seal with plaintiff as follows: [it will be better to thus quote the words of the covenant] "" "that he would, within one year thereafter, erect upon the premises [a good brick dwelling house], to be occupied as a residence, and that he would not erect upon the premises any building that would be a nuisance to the vicinity of the premises." II. That the plaintiff did accordingly sell and convey to the defendant said premises for said sum, but the defendant has not erected a good brick dwelling house on the lot, to be occupied as such, although said year has fully expired; but, on the contrary, has suffered it to lie open and xmenclosed [or, but, on the contrary has erected, etc., stating whai\. III. That said lot was a part of a tract of land which the 2« The grantee in a deed-poll is of equity wUl restrain him, or his bound by the covenants therein con- grantees, from doing what he has, in tained to be performed by him, and such deed, covenanted not to do. an action of covenant hes for a breach Atlantic Dock Co. v. Leavitt, 54 thereof. By acceptance of such a N. Y. 35. deed, the grantee is estopped from " Kidder v. Port Henry Iron Ore denying his covenants, or that the Co., 201 N. Y. 445; ano. dec, 151 seal attached to the deed is his own App. Div. 348, 135 N. Y. Supp. as well as the grantor's. And a court 353. Breach of Covenant 633 plaintiff laid out into lots and offered for sale, for the purpose of the erection of dwelling houses, as defendant well knew, requiring each purchaser to covenant to erect a dwelling house, and that the erection of such dwelling houses on lots sold improves the residue of the lots belonging to the plain- tiff, and increases their value and their market price; that plaintiff is the owner of of said lots in the vicinity of the defendant's said premises. IV. That the defendant's violation of this covenant, as aforesaid, has prevented other lots in the vicinity from in- creasing in value, as they would otherwise have done, and has injuriously affected their condition and hindered the plaintiff from selling them, to his damage dollars.^* 594. On a Covenant against Nuisances; the Covenant being in a Deed Executed Only by the Grantor.^* I. That on or about the day of , 19 , the plaintiff, by his deed imder seal conveyed to the defend- ant, for a valuable consideration, and as well in considera- tion of the covenant hereinafter mentioned, a lot of land [very briefly designating it].^" II. That said deed contained a covenant on the part of the defendant, the grantee therein, of which the following is a copy: [copy of the covenant against nuisances]. III. That said deed was delivered by the plaintiff to the defendant, and by him duly accepted. IV. That the defendant has erected, or suffered or per- mitted to be erected, on said premises, [a building occupied in a manner which is a nuisance to the vicinity of the prem- ises, to wit, a building erected for and used as a slaughter- house]. V. That the offal and blood in and carried out from said ^Allege special damage resulting ^'See note 26 to preceding form, to plaintiff; damage for breach of ™The covenant should be set such a covenant will not be presumed. forth, rather then its claimed effect Bogert V. Burkhalter, 2 Barb. (N. Y.) alleged. Kidder v. Port Henry Iron 525. " Ore Co., 201 N. Y. 445. 634 Abbott's Fokms of Pleading slaughter-house, and the offensive smell created thereby, is a nuisance to the vicinity of the said premises, and to the plaintiff, whose house is adjoining thereto, to his damage dollars." Wherefore [etc., demand of judgment].^^ 696. On a Continuing Covenant to Maintain a Fence. ^^ I. That on or about the day of , 19 , the plaintiff and the defendant, then being owners of ad- joining lands, made an agreement in writing, under their hands and seals, and thereby the defendant covenanted to erect a fence upon the boundary line between their said lands, and to maintain the same and keep the same in con- stant repair [or, an agreement, of which a copy is hereto annexed, marked "A," and made a part of this complaint].''' II. [If there are any conditions 'precedent on the part of the plaintiff they should &e set forth, unless the whole agreement is annexed; and add: That the plaintiff duly performed all the conditions on his part.] III. That the defendant erected said fence, but did not, after its erection, maintain the same and keep it in constant repair; but, on the contrary, in the month of , 19 , he suffered the same to become dilapidated and broken " In an action for the breach of the '' Where the plaintiff has already- usual covenant against nuisances in a recovered in a former action former deed of lands, the plaintiff must show damages from a breach of the same what the alleged nuisance is, and covenant, it would be proper, accord- how it has injured him. Bogert v. ing to the opinion of the court in Burkhalter, 2 Barb. (N. Y.) 525. A Beckwith v. Griswold, 29 Barb, slaughter-house was enjoined in (N. Y.) 291, to allege. that he had Brady v. Weeks, 3 Barb. (N. Y.) 157. brought an action and recovered For allegation of injury to the therein for former damages, and that value of adjoining property, see pre- the damages now sued for accrued ceding form. since the commencement of the '2 Which may be for damages only, former action, or for an injunction restraining its ^* It may be better to allege the continuance and damages. N. Y. covenant by copy. See Kidder v. Code Civ. Pro., § 1662; Cogswell v. Port Henry Iron Ore Co., 201 N. Y. N. Y., etc., R'. Co., 105 N. Y. 319. 445. See forms under Nuisance. Breach of Covenant 635 down, and to remain in that condition from that time ever siace [or, until the day of , 19 ], although many times duly notified by plaintiff of the condition thereof and the necessity for its repair. IV. That by means thereof the plaintiff suffered great damage by the injury to his lands, and the crops thereon, and his garden and fruit trees, by cattle coming through said broken-down fence from the defendant's land upon his premises [or, that plaintiff was compelled to and did ■ thereupon repair and rebuild said fence, and paid for such re- pairs and rebuilding dollars, which was the reason- able value and cost of such repairs '^], to his damage dollars. Whekepore [etc., demand of jvdgment]. 596. To Enjoin IBreach of Covenant Restricting Use of Premises. ^^ I. That at all times hereinafter mentioned, subsequent to the day of , 19 , plaintiff was and now is the owner and seized in fee and in possession of the follow- ing described premises: [description]. II. That at all the times hereinafter mentioned, sub- sequent to the day of , 19 , defendant was and now is the owner and seized in fee and in possession of the following described property: [description]. III. That the premises hereinbefore described are a part of and included in a large tract or parcel of land which on the day of , 19 , was owned in fee and in the possession of one M. N., and then described as follows: [description]. IV. That said M. N., then being the owner of said last described parcel, on the said day of ,19 , entered into an agreement in writing with one O. P., bearing date on said day, a copy whereof is hereunto annexed marked '' As to the right to recover both " j'rom McClure v. Leaycraft, 183 these items of damage, see Beach v. N. Y. 36, where plaintiff was de- Crain, 2 N. Y. 86. feated on the merits. 636 Abbott's Forms of Pleading "A" and made a part of this complaint [the agreement con- taining the restrictive covenant as to use of the premises]. That said agreement was on the day of " , 19 , duly recorded in the office of the [Clerk] of the County of , in Liber of Conveyances, at page V. That thereafter, by divers deeds of conveyance, said M. N. conveyed lots and pieces of land out of the said tract described in and subject to said agreement, among which ■ lots or pieces of land were the respective parcels now owned by plaintiff and defendant hereinbefore described; that by several mesne conveyances plaintiff and defendant became seized and possessed of their respective premises. VI. That plaintiff and defendant are seized and pos- sessed of their respective parcels of land and hold the same subject to the covenants on the part of said M. N. contained in the agreement hereinbefore alleged. VII. That heretofore and on or about the day of , 19 , defendant filed or caused to be filed in the [Department of Buildings of the said City of ] plans [describe them sufficiently to show an intended violation of the restrictive covenant, as:] for an apartment house stories in height, containing apartments; and de- fendant filed with said plans an appUcation signed by him asking that said plans be approved, and stating that he intended to erect upon the aforesaid premises owned by him a building according to the said plans. VIII. On information and belief that defendant has entered upon the work of constructing and erecting said building, and to that end has contracted or is about to con^ tract with one Q. R. to excavate the grovmd therefor, and said defendant intends to proceed with the erection of said building upon his said premises. IX. That the construction and erection of a building such as defendant intends to construct and erect upon his said premises is in violation of the provisions of the agree- ment hereinbefore set forth, and in violation of the rights of the plaintiff. Breach of Covenant 637 X. That upon plaintiff's said premises there is erected a private dwelling house, of stories in height, of high class, and of great value, which is one of a large number of similar dwellings erected on said street in said tract covered by said agreement. XI. That plaintiff's said dwelling is of large rental value, and desirable as a residence, but said rental value and de- sirability as a residence, as well as the fee value, depend wholly upon the exclusion from the vicinity thereof and especially from the block whereon the same is situated of all buildings prohibited by the provisions of said agreement, that is to say, the exclusion of all buildings other than pri- vate dwellings not less than stories in height. XII. That plaintiff purchased his said premises relying upon said agreement, and believing that by reason thereof said block would be free from buildings other than as per- mitted by said agreement. XIII. That plaintiff has no adequate remedy at law for the reason that the injury that will be done to him if the defendant proceeds with the erection of his proposed apart- ment house cannot be compensated in money. Wherefore, plaintiff demands judgment that the de- fendant and all persons holding under him or aiding or assisting him be enjoined and restrained from constructing or erecting upon his said premises the building now being or intended to be erected by him, or any building other than the kind permitted by the said agreement, and that plaintiff have such other and further relief as may be just. II. LANDLORD AND TENANT 597. Against Tenant for Breach of Express Covenant to Keep Premises in Repair. I. That on or about the day of ; 19 , by a lease in writing then made between the plaintiff and de- fendant, under their hands and seals [or, under the hand and seal of the defendant], the plaintiff leased to the defendant 638 Abbott's Forms of Pleading for [one year from said date,] at a yearly rent of , [describe demised premises very briefly, as] a certain dwelling- house, with stables and sheds attached, in the village of , in the county of" , the property of the plaintiff, known as No. street. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy: [copy of the covenant]. [Or, II. That the defendant in said lease covenanted that he would, during the said term of one year, at his own cost and expense, keep said dwelling-house and premises in good repair, and at the expiration of said term leave the said dwelUng-house and premises in as good condition as he re- ceived the same, reasonable wear and tear excepted.]'^ III. That the defendant entered upon the premises and occupied the same during the said term of one year, vmder said lease; that he has failed to keep the said house and prem- ises in good repair, and has failed to leave them in as good condition as he received the same, reasonable wear and tear excepted, but, on the contrary, has allowed them to fall into and remain in a condition of dilapidation and disrepair, and has quitted and vacated the same while in such condition'* [or, may more specifically state the condition, as] he has left them in such condition that the fences are broken down, the walls and the roof admit the water, and, in consequence, the plastering has in many places fallen down, the window glass is broken — or other injuries — -, and the house and prem- ises are otherwise injured solely by reason of the neglect of " It is better to set out the cove- See, as to effect of tenant's cove- nant by copy. Kidder !;. Port Henry- ' nant to make "all repairs," or "all Iron Ore Co., 201 N. Y. 445. Where necessary repairs," Bushwick Realty the action is. founded not on an ex- Co. v. Sanitary Fire Proofing Co., 129 press covenant, but on a violation of App. Div. 533, 114 N. Y. Supp. 13, the implied obligation arising out of and cases cited, the relation of landlord and tenant, ''The tenant's interest must have in the absence of any covenant, allege expired. Knutsen v. Cinque, 113 the leasing by plaintiff and the oc- App. Div. 677, 99 N. Y. Supp. cupation by tenant, and the failure 911. to keep in repair as in precedent. Breach of Covenant 639 the defendant to keep them in repair, pursuant to his said agreement.] ^' IV. That the cost to plaintiff of putting said premises . into as good condition as when leased to the defendant has been [or, will be] the sum of dollars/" no part of which has been paid by defendant. Wherefore [etc., demand of judgment]. 598. Against Tenant on Covenant to Repair and Execute all Orders of the Board of Health." I. That on or about the day of , 19 , defendant hired of plaintiff the premises No. street, in the~ city of New York, by a certain agreement which is hereto annexed, marked A, and which plaintiff makes a part of this complaint, [or, and in consideration of plaintiff's leasing the same covenanted as follows: [set forth, as] "to make all ordinary repairs, and to 'surrender the premises at the end of the term in as good condition as when entered upon, reasonable wear and tear excepted "].*^ [In the precedent cited, an agreement was annexed which provided, among other things: "2nd. That the tenant shall take good care of the house and its fixtures, and suffer.no waste, and shall, at his own cost and expense, make and do all repairs required to the plmnbing work and pipes, fm-nace, range and fixtures be- longing thereto, and shall keep the Croton pipes and the 2' Schwegler Realty Co. v. Audu- Interest cannot be added. Mara- bon Nat. Bank, 88 Misc. 14, 150 ham v. Stevenson Brewing Co., Ill N. Y. Supp. 171. , App. Div. 178, 97 N. Y. Supp. 604, *> This is the measure of damage, aff'd 188 N. Y. 593. after the expiration of the term, and *' Complaint in Hiill v. Bums, 17 is not affected by the fact that a sub- Abb. N. C. (N. Y.)- 317, where the sequent lessee made certain repairs action was sustained, at his own expense. Appleton v. *^ See, as to effect of tenant's cove- Marx, 191 N. Y. 81. If action is nant to make "all repairs" or "all brought before the expiration of the necessary repairs," Bushwick Realty term, it seems the measure of damage Co. v. Sanitary Fire Proofing Co., 129 will be the damage to the rever- App. Div. 533, 114 N. Y. Supp. 13, sion. and cases cited. 640 Abbott's Forms of Pleading connections with tlie Croton main free from ice and other obstruction at his own expense. And the tenant shall keep the sewer connections free from obstruction to the satisfac- tion of the municipal and police authorities. "3rd. That the tenant shall further and promptly execute and fulfill all city ordinances applicable to said premises, and all orders and requirements imposed by the board of health and the police department for the making of repairs for the correction, prevention and abatement of nuisances, in, upon or connected with said premises during said term, at his own expense."] - II. That defendant entered into possession of said prem- ises, and while in possession of the same made a complaint to the board of health in said lease referred to, of the plumb- ing in said house, which board thereupon required plaintiff to make certain repairs in said premises, and of which request defendant was duly notified, and refused to comply therewith, [or otherwise show the hreach\. III. That thereupon plaintiff was obliged to make said repairs at his own expense, and which were reasonably worth, and for which plaintiff paid the sum of dollars, and which defendant refused to pay when requested so to do. IV. That defendant has failed to comply with the con- ditions of said agreement in not complying with the said requirements of said board, to plaintiff's damage in the sum of dollars.^' Wherefore [etc., demand of judgment]. 599. Against Tenant, for Breach of Covenant to Insure. I. [Allege lease as in Form 597.] II. That said lease contained a covenant on the part of said defendant as follows: [set out copy of covenant]. [Or, II. That by one of the covenants in said lease said •" Plaintiff may allege and recover Stem v. Brauer, 62 App. Div. 388, for work done to repair damage sus- 70 N. Y. Supp. 832. taineii by defendant's ! negligence. Breach of Covenant 641 defendant covenanted to keep said premises insured, for the benefit of plaintiff, in the sum of dollars, and if at any time defendant should fail to keep the same so in- sured, said plaintiff might cause insurance to be placed on said premises at the expense of defendant, in the name and for the benefit of plaintiff.] ** III. That on or about the day of , 19 , the policy of instirance theretofore existing upon said prem- ises expired; that thereupon plaintiff notified defendant that he required him to procure an insurance upon said premises, but defendant neglected and refused so to do. rV. That thereafter and on or about the day of ,19 , plaintiff procured an insurance for the term of on said premises in said sum of dollars, and necessarily expended thesefor the sum of dollars, no part whereof has been repaid to plaintiff by de- fendant although payment thereof has been duly demanded. Wherefore [etc., demand of judgment]. 600. Against Tenant for Breach of Covenant to Pay Taxes, I and II. [Allege lease and covenant to pay taxes, in the method as'shown in preceding forms.] *" III. That on or about the day of j 19 , the said demised premises became subject to a [county] tax in the amount of dollars, which said tax became a subsisting lien *^ on said demised premises, on said date. IV. That the said defendant has not paid the said tax upon the said demised premises, or any part thereof, but ** It will ordinarily be better to Such a covenant runs with the land, plead the covenant by copy. Kidder and binds an assignee of the lease V. Port Henry Iron Ore Co., 201 who enters into possession. Stone v. N. Y. 4l'5. Auerbach, 133 App. Div. 75, 117 " If the covenant specified the time N. Y. Supp. 734. within which the tenant was to pay *> A denial of any knowledge or the taxes after they became liens, or information sufficient to form a be- after notice, allege such fact (and lief as to the levying of the tax would notice) and that the time had ex- be frivolous. Stone v. Auerbach, pired. ,., supra. 642 Abbott's, Forms of Pleading that the same, amounting to ' dollars, with interest thereon at the rate of per cent per annum, has, in violation of his said covenant, been left wholly due and unpaid by said defendant. V. That on or about the day of , 19 , plaintiff was compelled to and did pay the sum of dollars in settlement of said taxes, and in extinguishment of the lien thereof, no part of which sum has been repaid by defendant, to plaintiff's damage dollars. — . Wherefore [etc., demand of judgment]. 601. Against Tenant for Breach of Covenant to Surrender Possession. ^^ [Allege making of lease, and set out copy of covenant to sur- render possession; see Form S99.] III. That the defendant on the termination of said lease on the day of , 19 , did not quit said premises, or surrender possession thereof to plaintiff, but on the contrary held over and continued in possession of said premises without plaintiff's permission until the day of , 19 , to plaintiff's damage dol- lars. ^^ Wherefore [etc., demand for judgment]. 602. Against Tenant; Violation of Restrictive Covenant Upon Use of Premises, with Special Damages. ^^ I. [Allege making of lease, as in Form 597.] II. That said lease contained the following provision and covenant: [copy of covenant claimed to have been violated, as:] the party of the second part [defendant] agrees to conform " From Vernon v. Brown, 40 App. '^ If any special damage»has re- Div. 204, 58 N. Y. Supp. 11, where suited, allege it specifically, the court held that the fact that the *' Adapted from Howard v. Mobile landlord had brought a proceeding Co. of Am., 75 App. Div. 23, 77 N. Y. to summarily dispossess the tenant, Supp. 957, where the court denied a and had dispossessed him there- motion to strike out the allegations under, did not prevent the action on of paragraph IV as irrelevant and the covenant. redundant. Breach of Covenant 643 to the rules of the Association of Fire Underwriters, as to the storing and care of gasoline. III. That the rules of the Association of Fire Underwriters, during all the times hereinafter mentioned, provided as follows: [state pertinent portion of rules]. IV. That at the time of the making of said lease, it was in addition thereto specifically understood and agreed by and between plaintiff and defendant that the handling of gasoline openly was dangerous, and that the handling of gasoline within the building in any manner was extremely dangerous and liable to cause explosion and fire, and that it was specifically agreed that no gasoline should be handled within the building, but it was to be stored and handled en- tirely outside of the building. V. That defendant entered into possession of said build- ing, and occupied the same until it was destroyed by fire as hereinafter alleged. VI. That on and prior to the day of , 19 , defendant, in disregard and violation of his said cove- nant and agreement with j)lain tiff, and of the aforesaid rules of said Association of Fire Underwriters, kept and stored upon said premises gasoline in large quantities, in open cans; that on said day and in the nighttime thereof defendant was handling said gasoline in large quantities within said building openly and within a short distance of an artificial gas Ught and other fire, in filling its said automobiles, and as a direct result thereof said property of the plaintiff was set on fire and totally consumed. VII. That by reason of the fact that said fire was caused by the handhng of large quantities of gasgUne within and about said premises in the nighttime, as hereinbefore al- leged, the insvu-ance companies in which said building was insured to the amount of dollars refused to pay any portion of the insurance thereon. VIII. That said building was reasonably worth at the time of the said fire the sum of dollars, and was thereby totally destroyed. 644 Abbott's Forms of Pleading IX. That by reason of the premises, plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand for judgment]. 603. Against Tenant; to Enjoin Subletting without Lessor's Consent, in Violation of Covenant not to Sublet.'*" I. That the plaintiff is a domestic corporation, created and organized under the laws of the State of , having the power to hold and lease the real estate and apartments hereinafter mentioned. II. That on the day of , 19 , at the city of , the plaintiff and the defendant Y. Z. made a certain agreement in writing, under their respective hands and seals, whereby the plaintiff as lessor did let to said Y. Z. all that certain apartment or suite of rooms known as the , on the first floor of the apartment building Nos. . and street, in the city of , to- gether with the kitchen, servants' room and storeroom in the basement, on the westerly side of the building, the bed- room on the northerly side of the top floor, marked No. , the trunkroom on the easterly side of top floor marked No. , and room in the cellar for the storage "> The action was sustained on tiiis forma,nce to restrain the violation complaint in Barrington Apartment by a tenant of his agreement. Citing Assoc. V. Watson, 38 Hun (N. Y.), Eden on Injunctions (1st Am. ed.) 545, as to the main defendant. The and cases cited; Taylor's Land. & court say: "The learned counsel for Ten. 329, 330. the appellant seems to think it was "The plaintiff having been, as al- necessary to show the contemplated ready shown, organized for occupa- act, one which would occasion in- tion by the original projectors and jury, and that none was shown, nor stockholders, the propriety of en- was it demonstrated that irreparable forcing rules by which the objects of damage would result from the act de- the organization should be carried signed, which was necessary in order out is manifest, and for that purpose to entitle the plaintiff to the injunc- the covenant against subletting was tion sought. This may be regarded restrictive, and to allow a violation as the general rule. Citing T. & B. of it and remit the plaintiff to dam- R. R. Co. V. B., H. T. & W. R. R. ages would be in effect an invasion Co., 86 N. Y. 107. But courts of and demolition of the design of con- equity very frequently grant injunc- struction." tlons in the nature of a specific per- Breach of Covenant 645 of coal and wood, to be occupied as a private dwelling only, and not otherwise, for a term of years, to com- mence on the day of , 19 at the annual rent of dollars, such rent to be due and payable in equal monthly payments at the end of each month; that is to say, in each year until the expiration of the term, pay- able to the plaintiff in the city of III. That in and by said agreement the said plaintiff and the said defendant Y. Z. did also further agree that neither the said premises nor the said lease, nor any part thereof, should be assigned, or let or underlet, or used, or permitted to be used, for any purpose other than above mentioned, without the written consent of said lessor or its legal repre- sentatives, duly executed and proven, and if so assigned, let or underlet, used or permitted to be used, without such written consent, the said lessor might re-enter and relet the said premises for itself, or as agent for said lessee, and itself receive and retain the rent therefor, the lease, at the option of plaintiff, the lessor, thereupon to become void. That in and by said lease or written agreement the said parties, the plaintiff and the defendant Y. Z., did further agree that any consent to an assignment, letting, subletting, or use for such other purpose, should not be deemed a consent to any subsequent assignment, letting or subletting, or use for such other purpose, but that for every such subsequent or successive letting, subletting, or use for such other purpose, the express consent in writing of the lessor should be re- quired, and that in case of such assignment, letting, sub- letting, or use without such consent, the said plaintiff, lessor, might, after reasonable notice, prevent the ingress of per- sons to the premises claiming under such assignment, letting or subletting, or making such use of the premises, and might, for the purpose of such prevention, use, without Uability, all necessary force. IV. That it was in and by said written agreement or lease further understood and agreed between the plaintiff lessor and the said defendant Y. Z., that in case of the violation 646 Abbott's Forms of Pleading of the covenants, agreements and conditions, or any con- tinued violation of the reasonable rules or regula.tions then or thereafter to be estabUshed, or either of them,, by the said lessee, after notice by the said lessor, to desist from the said violation, the said lease should thenceforth at the option of the said lessor become null and void, and the said lessor might re-enter without notice upon said premises and rent in such case should become due and be apportioned on and up to the date of such entry. V. That thereafter and in or about the month of , 19 , the said defendant Y. Z. did sublet the premises leased by the said written lease with the consent of the plaintiff to the defendant W. Z. , VI. That, as the plaintiff is informed and verily believes, in the month of > 19 , and on or about the day thereof, the said defendant W. Z. made a sublease of said premises to the defendant S. Z. VII. That the plaintiff has not consented to such sub- lease by said defendant Y. Z. to said defendant S. Z. either in writing or otherwise. That the plaintiff has given notice to the defendant W. Z. and said defendant S. Z. that the said sublease from W. Z. to said S. Z. is made without the consent; written or otherwise, of the plaintiff, and that the plaintiff forbids said S. Z. from entering upon the premises mentioned and described in said lease, and from making any use thereof. VIII. That, as the plaintiff is informed and verily be- lieves, the said defendant S. Z., in violation of the rights of the plaintiff, intends to enter upon said premises and use the same. IX. That the plaintiff was incorporated mainly for the purpose of constructing apartments to be occupied by its original projectors and stockholders. That the greater number of the apartments in the building, wherein are the premises before mentioned in this complaint, are now occu- pied by said original projectors and stockholders of the plaintiff corporation, and it is important for the comfort Breach of Covenant 647 of said projectors and stockholders that no persons should be admitted to the occupation of said premises, other than persons who are thoroughly acceptable in every respect to the persons abeady owning or occupying other apart- ments in the building. That for that reason the agreements before mentioned in the said agreement of lease, requiring the consent of the lessor to any assignment or subletting of lease or premises, were inserted therein, and for the same reason the same clause is inserted in all. leases, which are made by the plaintiff for any of its apartments in its said building. That the defendant S. Z. is a person who is objec- tionable to the plaintiff, and to some of the stockholders of the plaintiff, parties who own and occupy apartments in the plaintiff's said building. That the remedy, of the plaintiff in damages or in an action at law will be entirely inadequate to protect the rights of the .plaintiff in the prem- ises, and of its stockholders, and that an injury will be done to the plaintiff and its stockholders which cannot be com- pensated in money if the defendant S. Z. is allowed to oc- cupy the premises aforesaid. Wheeefoee, the plaintiff demands judgment that the lease or sublease of said W. Z. to the defendant S. Z. be adjudged void as to the plaintiff, that the defendant W. Z. may be enjoined and restrained by the judgment or decree of this court from making, executing or delivering without the written consent of the plaintiff any lease, sublease or assignment of lease of the premises in question, in writing or otherwise, to the defendant S. Z. or any other person, and that the defendant S. Z. be enjoined and restrained by the judgment or decree of this court from entering upon, or using, or occupying said premises, or any portion thereof under any alleged lease, sublease or assignment of lease made without the written consent of the plaintiff from the defend- ant W. Z., or any other person, and that pending the deter- mination of this action and until the final judgment therein, and imtil the further order of the court, the said defendants W. Z. and S. Z. may be enjoined and restrained by the order 648 Abbott's Forms of Pleading of this court as hereinbefore last specified, and that the plaintiff may have such other and further relief, together with its costs and disbursements of this action, as to the court may seem just. 604. Against Tenant; For Deficiency, under Covenant Permitting Re-entry upon Default, and Re-letting for Tenant's Benefit. [Complaint sustained in BayHes v. Ingram, 84 App. Div. 360, 82 N. Y. Supp. 891, aff' d 181 N. Y. 518.] " I. [Allege the making of the lease, as in Form 597.] II. That said lease contained a covenant on the part of the defendant, as follows: [set forth copy, which in the precedent was as follows:] "And the said lessee hereby agrees to pay the said yearly rent as above stipulated, without any deduction, fraud or delay; it being understood that in case of non-payment of the rent at the times and in the manner abbve provided, or if default shall be made in any covenants or agreements herein contained, the said lessor and the lessor's legal representatives shall have the right to enter the said premises, either by process of law or other- wise, and to re-let said premises as agent of the said lessee, and to receive the rent therefor, applying the same to the payment of the rent due by these presents, and holding the lessee and the lessee's legal representatives Uable for any deficiency for any damage that may be caused by or through such entry or re-letting." *' See, also, Slater v. Van Chorus, will lie until the entire deficiency is 120 App. Div. 16, 104 N. Y. Supp. ascertained by the expiration of the 996. entire rental period. Harding v. In the precedent it was held that Austin, 93 App. Div. 564, 87 N. Y. the covenant survived the entry by Supp. 887. the landlord through summary pro- An action will not lie for damages ceedings; also, that the covenant for breach of the lease as an en- continued in effect during the term tirety, before the expiration of the created by the tenant's holding over term. McCready v. Lindenbloom, after the expiration of the term 172 N. Y. 400, where the rights of the specified in the lease. lessor under a lease containing special Under such a covenant no action covenants are discussed. Breach of Covenant 649 III. That on or about the day of , 19 , plaintiJEf in accordance with the statute duly dispossessed said defendant for the non-payment of rent of said premises for the month of , 19 . IV. That thereupon plaintiff re-entered upon said prem- ises, and sought to lease the same on behalf of the defendant, as by said covenant provided; that plaintiff was wholly unable to obtain a tenant for said premises until the day of . • , 19 . [Or, if a tenant was obtained for a less rent, allege: that plaintiff obtained a tenant on the day of , 19 , for a rental of only dollars per month.] V. That plaintiff received no rent whatever for said premises from the day of , 19 , to the day of , 19 , [and the amount received from said tenant for rental from to was deficient in the amount of dollars to the sum which the defendant had agreed to pay under said lease] to plain- tiff's damage dollars. VI. That plaintiff duly notified defendant of such de- ficiency and damage, and demanded payment thereof, but no part has been paid. Wherefore [etc., demand for judgment]. 605. Against Landlord; for Refusal to Give Possession. I. [Allege execution of lease as in Form 606.] II. [// rent is payable in advance.] That on or about the day of , 19 ; plaintiff paid [or, tendered] to the defendant the sum of dollars, being payment in advance of the rent of said premises for the month of ,19 , in accordance with the terms of said lease. III. That on the • day of , 19 , the plaintiff, as lessee aforesaid, demanded of defendant, as lessor aforesaid, possession of the said demised premises,*^ *' It ia not necessary to aver that or at the last convenient hour of the the demand was made on the land, day. Carroll v. Peake, 1 Pet. 18. 650 Abbott's Forms of Pleading but the defendant refused to give plaintiff possession thereof, and still refuses, and plaintiff was thereby and still is de- prived and kept out of the possession of said premises. IV. That by reason of the premises plaintiff has been damaged dollars.^' Wherefore [etc., demand of jttdgment]. 606. Against Landlord, for Breach of Covenant to Keep Premises in Repair.'* I. That on or about the day of ; 19 , by a lease in writing, then made between the plaintiff and the defendant, under their hands and seals [or, under the hand and seal of the defendant], the defendant leased to the plaintiff the premises known as No. street, in the city of New York, for [one] year from that date, at the yearly rent of dollars. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy [copy of covenant to keep in repair]. III. That the plaintiff entered into possession of said premises under said lease, and used the same as a store and warehouse for storing and selling various articles of dry goods. IV. That the defendant has failed to perform said cove- nant and keep the premises in repair, but has for a period of allowed the walls and roof to become and remain leaky; that the value of the use of the premises in their aforesaid condition is dollars [per month] less than " The measure of damages is the 738; Adair v. Bagh, 20 Iowa, actual rental value of the premises 238. less rent due, and any necessary ex- Special damages are only recover- penses in preparing for the occupa- able when specially pleaded. When tion which were within the contem- pleaded they should be alleged as in plation of the parties. Podalsky v. addition to the general damage. Ireland, 137 App. Div. 257, 121 See Goldman v. Gainey, supra. N. Y. Supp. 950; Goldman v. Gainey, " A landlord in New York is not 67 App. Div. 330, 73 N. Y. Supp. bound to make repairs, in the ab- sence of a covenant so to do. Breach of Covenant 651 would be the value thereof if they were put and kept in good repair,*^ to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 607. Against Landlord for Breach of Covenant for Quiet Enjo3nnent/^ I. That on or about the day of , 19 , the plaintiff and the defendant entered into an agreement, under their hands and seals [or, under, the hand and seal of the defendant], whereby the plaintiff hired and the defend- ant leased for the term of years from said date, at a yearly rent of dollars [here briefly designate the premises as in preceding forms under this title]. JI. That said lease contained a covenant on the part of the defendant, of which the following is a copy: [copy of covenant for quiet possession]. [Or, II. That the defendant in said lease covenanted with the plaintiff that he should peaceably and quietly occupy and enjoy the premises aforesaid for the said term of years.] •*' III. That the plaintiff has not been permitted peaceably and quitely to occupy and enjoy the possession of said premises; but, on the contrary, after the commencement of the term, and on or about the day of , 19 , one M. N., who was, at the time of making said lease, and thereafter until the last-mentioned day, the lawful owner, ^* '* This is the usual measure of elsewhere. See Drago v. Mead, 30 damage. Godfrey v. India Wharf App. Div. 258, 51 N. Y. Supp. 360. Brewing Co., 87 App. Div. 123, 84 ^ See Form 1057 for an action of N. Y. Supp. 90; Reiner v. Jones, 38 trespass by tenant based on such App. Div. 441, 56 N. Y. Supp. 423. covenant, in order to invoke a more See, as to general measure of dam- favorable rule of damages. See Form age in actions against landlords for 586, for complaint by grantee under breach of covenants, Nemrow v. similar covenant in deed. Assembly, etc.^ Co., 121 App. Div. " Such covenant will bs implied 481, 106 N. Y. Supp. 109. where none is expressed. Fifth Ave. If plaintiff seeks to recover the Building Co. v. Kemochan, 221 N. Y. profits of his business, he must al- 370. lege that he was unable to carry it ^' The breach of the covenant for on, either in the demised premises or the quiet enjoyment if by a stranger, 652 Abbott's Forms of Pleading under title paramount to the title of the defendant [or,. lawfully entitled to the possession] of said premises, entered upon the same and ejected this plaintiff therefrom by due process of law/* and has ever since kept him out of posses- sion of the same [or designate what part],^'^ to his damage dollars.*^ Wherefore [etc., demand of judgment]. 608. Against Landlord, for Breach of Agreement to Com- plete Demised Premises. [From the complaint in TuUer v. Davis, 4 Duer (N. Y.), 187.] I. That on or about the day of , 19 , at , the said plaintiffs entered into an agreement, in writing, with the defendants, bearing date on that day, of which agreement the following is a copy: [copy of an agree- is an actual disturbance of possession by reason of some adverse and su- perior right existing at the time of the making the covenant; not a tortious disturbance, nor a lawful disturbance by an adverse right subsequently ac- quired. Gardner v. Keteltas, 3 Hill (N. Y.), 330; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1; Grannis v. Clark, 8 Cow. (N. Y.) 36; see cases cited, 2 Greenl. on Ev. 239, § 243. It must, therefore, be averred and proved that such ouster was by a person who had lawful title superior to that held by the defendant at the time of making the covenant. Chestnut v. Tyson, 105 Ala. 149, 16 So. Rep. 723. If the lessor refuses to permit oc- cupation, or if he is directly con- nected with the withholding, the action will lie. Garrison v. Hutton, 118 App. Div. 455, 103 N. Y. Supp. 265. As to an entry by the landlord, see Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376. For other averments of ouster, see Forms 586 and 588. ^'Either an eviction, or an actual ouster by a paramount lawful titie must be shown. Parkinson v. Sher- man, 74 N. Y. 88; Mason !/. Lender- oth, 88 App. Div. 38, 84 N. Y. Supp. 740. ™ In an action for breach of cove- nants of warranty and quiet enjoy- ment in a lease, the declaration must state the particulars of the plaintifi's being prevented from taking or re- taining possession of the premises; that is, as to the person or persons who thus prevented him; and by what right; and show a title at or before the date of the lease declared on. Grannis v. Clark, 8 Cow. (N. Y.) 36. '^ The measure of damage in ab- sence of fraud is the amount of rent prepaid, and such mesne profits as he is liable to pay over. Mack v. Patchin, 42 N. Y. 167; Kimbark v. Waldeman Co., 169 App. Div. 239, 154 N. Y. Supp. 415; Orrecchinto v. Chittenden, 177 App. Div. 88, 163 N. Y. Supp. 929. Breach of Covenant 653 ment to complete an unfinished warehouse, in the same manner as an adjoining building, and to let it to the plaintiff, giving possession on a day nam^d], II. That after the making of this agreement, and on or about the day of , 19 , the defendants deUvered, and the plaintiffs took possession of the first floor and basement of said building, under and in piirsuance of said agreement, no lease or other agreement having been made or executed between the parties, and the plaintiffs took possession thereof upon the faith and assurance of the defendants, and in the full beUef that the said premises were finished in the same manner as the store then occupied by M. N., in the same street, and in accordance with the terms of said agreement. III. That the said premises were not finished in the same manner as the store at the time of making said agreement, occupied by M. N., in the same street, but, on the contrary thereof [allege particularly the nature of the default, as] the roof of the building, and the gutters, watercourses and lead- ers therefrom, were constructed and finished in a different and less perfect manner than those upon that store, and an obstruction was placed over the top of the leader that con- ducted the water from the said roof of the building, which obstructed and prevented the water from passing off from said roof, whereas no such obstruction was placed over the top of the leader, or gutter, or watercourse from the roof of the store then occupied by said M. N., in the same street. IV. [Allege any special damage resulting, as] That, in consequence thereof, the water falling upon the roofs of said building mentioned in said agreement, was obstructed and prevented from passing off through the gutters, water- courses or leader, and was forced back upon and ran through the skylight in the roof, and down into the said first floor and basement, and upon the goods of the said plaintiffs kept therein, and greatly injured the same, to the damage of the plaintiffs dollars. Wherefore [etc., demand of judgment]. 654 Abbott's Forms of Pleading 609. Against Landlord, for Breach of Covenant to Renew Lease, or Pay for Buildings Erected by Tenant. [Complaint sustained in Eisner v. Pringle Memorial Home, 130 App. Div. 559, 115 N. Y. Supp. 58.] I. [Allege lease, as in Form 606.] II. That the defendant in said lease covenanted as fol- lows: [allege the covenant as] that at the expiration thereof he would, at his option, either grant to the plaintiflf a further renewal lease of the premises for a term of years, or would pay to the plaintiff the just and fair value of any building which might then be standing on the said premises; that it was further provided in said lease that in case the parties concerned should not agree upon the value of the building, such value should be ascertained and determined by arbitration [allege the specific requirements as to appoint- ment of arbitrators, etc.]. III. That prior to the expiration of said lease, the de- fendant elected,'^ pursuant to the terms thereof, to pay to plaintiff the just and fair value of the building which was upon the said premises, and plaintiff and defendant were not able to agree upon such fair and just value. IV. [Allege appointment oj arbitrators and umpire, and award, as in Form 515, under Insurance.] V. That defendant has failed to pay to plaintiff said sum of dollars, so determined by said arbitrators to be the just and fair value of said building. Wherefore, [etc., demand of judgment. '^ Such an allegation charges a fact, not a conclusion of law. Eisner v. Pringle Mem. Home, supra. CHAPTER XXIV COMPLAINTS IN ACTIONS FOE BREACH OF CONTRACT OF EM- PLOYMENT * PAGE 610. By an etaployee, wrongfully discharged 655 611. The same, where employer does not permit employee to begin service 659 612. The same, by employee holding over for a renewal term after original term of hiring had expired 659 613. Action for employer's dismissal of agent in violation of contract to pay salary and commissions 660 614. By proprietors of newspaper or periodical, when advertising contract has been cancelled 662 615. Against employee for leaving service before expiration of contract period 662 616. Complaint against engineer for breach of contract to run engine and furnish power, and damage for negligent use 663 617. By apprentice against master 667 618. By the master against the father of apprentice 667 619. For breach of contract to manufacture goods 668 620. The same, on a promise to manufacture out of plaintifp's materials . . 669 621. For goods made at defendant's request and not accepted 670 622. Against agent for breach of instructions in seUing for less price. . . . ' 671 623. Against stockbroker for failure to fill plaintiff's orders 672 624. The same, for violations of instructions 673 625. Against printer for not fulfilling agreement to print, and for negli- gent injury to the stereotype plates 673 626. Against a builder for not completing his work, with special damage by loss of rent 674 627. Against the same, for not properly finishing a building 676 628. By sub-contractor, for damages caused by principal's failure to ful- fill his agreement to complete to a certain point at a specified date 676 610. By an Employee, Wrongfully Discharged.^ [From complaints in Linton v. The Unexcelled Fireworks ' For forms of complaints in actions Forms of complaints in actions to to enjoin one agreeing to render spe- recover for services rendered are cial unique and extraordinary serv- given in Chapter VII, Wokk, Labor ices, from rendering such services to & Ser\ices. another, see Chapter LXVII, In- ^ The action is for damages for the JUNCTIONS. discharge, and not for wages unpaid. 655 656 Abbott's Forms of Pleading Co., 124 N. Y. 533; Murray v. O'Donohue, 109 App. Div. 696, 96 N. Y. Supp. 335; Williams v. Conners, 53 App. Div. 599, 66 N. Y. Supp. 11.] Howard v. Daly, 61 N. Y. 361, 19 Am. Rep. 285. In other words, the employee is not entitled to recover, under the broken contract for "con- structive services;" such a doctrine has been repudiated in England, where it had its origin, as well as in this country, and is declared in How- ard V. Daly, supra, to be "so opposed to principle, so clearly hostile to the great mass of authority, that it can- not be accepted." The same rule has been appUed in New York, in Howard v. Daly, supra; Parry v. American Opera Co., 19 Abb. N. C. 269; in Ohio, in James v. AUen County, 44 Ohio St. 226, 25 Am.'L. "Reg. 521; in Maryland, in Olmstead V. Bach, 78 Md. 132, 27 Atl. Rep. 501. The result of the weight of authori- ties upon the employee's action may be stated thus: (1) If before services have been rendered or wages earned under the contract, the employer discharges or refuses to receive the employee, the latter cannot sue for wages, but his remedy is a single action for damages by breach of the contract. Howard v. Daly, 61 N. Y. 362; McCargo v. Jergens, 206 N. Y. 363. (2) If after services have been ren- dered and paid for, the employer wrongfully dismisses the employee before any further services have been rendered, the remedy is the same, a single action for damages. McCargo V. Jergens, 206 N. Y. 363; Arnold v. Adams, 27 App. Div. 345, 49 N. Y. Supp. 1041; Olmstead v. Bach, 78 Md. 132, 27 Atl. Rep. 501; Keedy v. Long, 71 Md. 392, 18 Atl. Rep. 704. (3) If, under a contract of hiring which provides for periodical pay- ments to employee, wages have be- come payable and all remain unpaid, the employer wrongfully discharges the employee, the latter may either, (a) treat the contract as rescinded and sue for the value of his services, which would not then be controlled by the limit of rate fixed by the contract, for he would be entitled to recover a quantum meruit; or, (6) he may sue on the contract for wages for services actually rendered (in which case he is bound by the contract rate); and he may also bring a separate action, or join in another count in the same action, his demand for damages for the wrongful discharge. Olmstead v. Bach, 78 Md. 123, 27 Atl. Rep. 501; Perry v. Dickerson, 85 N. Y. 345, 8 Abb. N. C. 474. (4) If, under an agreement similar to (3), some installments have been paid for, and others remain unpaid for, and there is also a wrongful discharge, the remedy is to sue on the con- tract for those unpaid, and to join a count in the same action, or bring a separate action, for the demand for damages for the wrongful dismissal. Perry v. Dickerson, 85 N. Y. 345; Carlson v. Albert, ^17 App. Div. 836, 102 N. Y. Supp. 944. The cause of action for wages un- der the contract, and that for wrong- ful dismissal are distinct. Id. Recovery of damages for wrongful dismissal only does not bar a subse- quent action for wages previously earned under the contract by services actually rendered. Id. (5) Under a contract of hiring which provides for payment of wages Breach of Contract of Employment 657 I. [Allege defendant's corporate capacity in proper case.] II. That at , on or about the day of , 19 , the defendant entered into an agreement with the plaintiff whereby he employed the plaintiff [as superin- tendent of his factory] ' for the term of years ^ be- ginning on the day of , 19 , and agreed to pay him therefor the sum of dollars per year * in only on completion of service, or pro- vides for periodic payments but the employee has a claim for only a part of such periodic payment, and a wrongful discharge occurs, the remedy is confined to the action for wrongful dismissal, or upon quantum meruit for services actually rendered. Walsh v. iSr. Y. & Ky. Co., 88 App. Div. 477, 85 N. Y. Supp. 83. There can be but one recovery for damages for a wrongful dismissal. All the damages up to the time of trial may be included. Waldron v. Hendrickson, 40 App. Div. 7, 57 N. Y. Supp. 561; Wieland v. Wilcox, 40 App. Div. 213, 67 N. Y. Supp. 1038; 01m- stead V. Bach, 78 Md. 132, 27 Atl. Rep. 501; Parry v. American Opera Co., 19 Abb. N. C. (N. Y.) 269; Everson v. Powers, 89 N. Y. 527. On the question whether damages may be recovered beyond the time of trial, the cases are in conflict. That they can has been held in New York (174 App. Div. 8, 138 App. Div. 874; 126 id. 469; 84 id. 138), Massachu- setts (163 Mass. 95), Vermont (31 Vt. 582), Maine (67 Me. 64), Pennsyl- vania (166 Pa. St. 202), Indiana (152 Ind. 641), Missouri (127 Mo. 520), Tennessee (7 Lea, 397), West Va. (49 W. Va. 500), U. S. (173 U. S. 1); con- tra, Alabama (24 Ala. 194), Texas (75 Tex. 196), Wisconsin (7 Wise. 355), Kentucky (15 Ky. L. Rep. 301), Il- linois (139 111. 67). It is also necessary that plaintiff assert in this action and recover for the loss of any additional, compensa- tion or benefit which would have ac- crued upon his completion of his term of service, or upon any other future contingency which his dis- charge will prevent. See Fleischmann V. Steele, 171 App. Div. 336, 157 N. Y, Supp. 353; McCargo v. Jergens, 206 N. Y. 363. An assignee of a portion of the claim for damages must sue in equity, making the assignor a party defend- ant, and asking a recovery of the en- tire damage in the one action. Car- vill V. Mirror Films, Inc., 178 App. Div. 644. ' Similar principles apply where the action is founded upon a contract not exclusively for services, for ^- ample, the services of the owner of a' canal boat with the use of the boat and horses, and a driver. See Milage V. Woodward, 186 N. Y. 252. * Unless a definite term of hiring is specified, there can be no recovery. Outerbridge v. Campbell, 87 App. Div. 597, 84 N. Y. Supp. 537; Crotty V. Erie R. R. Co., 149 App. Div. 262, 133 N. Y. Supp. 696; Watson v. Gugino, 204 N. Y. 535. ' Unless the contract fixes the com- pensation there can be no recovery. United Press Co. v. N. Y. Press Co., 164 N. Y. 406; Varney v. Ditmars, 217 N. Y. 223; Hawksworth v. Dur- ant, 9b Misc. 149, 156 N. Y. Supp. 1026. 658 Abbott's Forms of Pleading equal weekly payments; and the plaintiff agreed with de- fendant so to work for the said time and for the said compensation." III. That the plaintiff duly entered upon said employ- ment and continued therein and duly performed aU the con- ditions thereof on his part, until on or about the day of , 19 , when defendant broke the said con- tract on. his part, and [without right or cause] '' discharged the plaintiff from said employment,* and refused to permit him to continue therein to plaintiff's damage in the sum of dollars.^ Wherefore [etc., demand of judgment]. ' Where plaintiff alleged an agree- ment by defendant to employ him for life in consideration of a release of claim for injuries received, allegations chargiag that the injury was caused by defendant's negligence are imma- terial and should be stricken out. Kent V. Standard Oil Co., 138 App. Div. 501, 122 N. Y: Supp. 1047. The burden is on plaintiff to allege and prove the hiring for a definite term. Watson v. Gugino, 204 N. Y. 535; Gressing v. Music. Instr. Sales Ce., 169 App. Div. 38, 154 N. Y. Supp. 420. ' It is not necessary or material to aver in the complaint, or to prove as a part of plaintiff's prima fade case, that the discharge was without cause, as a discharge before the determina- tion of the stipulated period is prima facie a violation' of the agreement of employment. Linton v. U. F. Co., 124 N. Y. 533; Herreshoff v. Am., etc., Mfg. Co., 164 App. Div. 238, 149 N. Y. Supp. 703. Nor is it necessary for plaintiff to negative a breach on his part. Crotty v. Erie R. R. Co., 149 App. Div. 262, 133 N. Y. Supp. 696. If the agreement provides that the employment shall continue for a specified term, "provided plaintiff's services should be satisfactory to de- fendant," a complaint which charges a discharge without any reasonable cause whatever is good on demurrer. Foley V. Mail, etc., Co., 8 Misc. 91, 28 N. Y. Supp. 778. ' Failure to pay an amount ac- cruing imder the emplojrment will not of itself necessarily amount to such a breach as wiU enable the em- ployee to sue for all the damages and treat the contract as at an end. See Wharton & Co. v. Winch, 140 N. Y. 287; McCready v. Lindenborn, 172 id. 400. And a breach may be waived by the renewal of the employment subsequently, so that aU that would remain would be an action for a partial breach. Livingston v. Klaw, 137 App. Div. 639, 122 N. Y. Supp. 264. ' Plaintiff need not allege or prove that he has used reasonable diUgence to obtain other employment. Allen v. Glen Creamery Co., 101 App. Div. 306, 91 N. Y. Supp. 935; Ware Bros. Co. V. Cortland, etc., Co., 210 N. Y. 122; Merrill v. Blanchard, 7 App. Div. 167, 40 N. Y. Supp. 48. Prima facie the measure of damages is the amount stipulated to be paid. Milage v. Woodward, 186 N. Y. 252; Herreshoff Breach of Contract of Employment 659 611. The Same; "Where Employer does not Permit Em- ployee to Begin Service.'" [I and II as in preceding Form 610.] III. That prior to the day for the commencement of said service, to wit, on or about the day of , 19 , defendant notified plaintiff that he repudiated his said agreement, and would not permit plaintiff to enter upon said employment." rV. That plaintiff has been damaged by reason of the premises in the sum of dollars. Wherefore [etc., demand for judgment]. 612. The Same; by Employee Holding Over for a Renewal Term, after Original Term of Hiring had Expired.'^ I. [Allege making of original agreement for employment, as in paragraph II of Form 610.] V. Am., etc., Mfg. Co., 164 App.Div. 238, 149 N. J. Supp. 703. The bur- den is on the defendant to show that plaintiff did obtain or might with reasonable diligence have obtained other employment during the term. Milage v. Woodward, 186 N. Y. 252; Murray v. O'Donohue, 109 App. Div. 696, 96 N. Y. Supp. 335. Nor need plaintiff allege or show that he continued to be ready and willing to perform after the breach. Allen V. Glen Creamery Co., 101 App. Div. 306, 91 N. Y. Supp. 935; Calu- wart V. Schapiro, 90 Misc. 301, 152 N. Y. Supp. 1016; Bond v. Carpenter (R. I.), 3 N. E. Rep. 633. He must accept other employment of the same character, even though offered him by the employer. Bigelow v. Am., etc., Mfg. Co., 39 Hun (N. Y.), 699. If the contract of employment covers the making by plaintiff of all of certain articles which defendant jnight market within a specified period, see for the measure of dam- ages, Schlossberg v. Brady, 216 N. Y. 579. '" An action accrues to the em- ployee for wrongful discharge immedi- ately upon the anticipatory refusal. Howard v. Daly, 61 N. Y. 362; Wer- ner V. Werner, 169 App. Div. 9, 154 N. Y. Supp. 570. Neither an allegation of tender of the services, nor of readiness and willingness to perform, is necessary. Caluwaert v. Schapiro, 90 Misc. 301, 152 N. Y. Supp. 1016. See, generally, the notes to Form 610. 1' If the employee replied that he would not accept the repudiation and would hold the employer to his contract, this nullifies the anticipa- tory breach, and tender of perform- ance on the day of commencement of the service would be necessary. See Becker v. Leggie, 139 App. Div. 463, 124 N. Y. Supp. 116. 12 Plaintiff must allege the defend- 660 Abbott's Forms of Pleading II. That the terms of said agreement were in all respects observed and fulfilled by plaintiff and defendant; that at the expiration of said agreement, to wit, on the day of , 19 , and thereafter until plaintiff's discharge as hereinafter alleged, plaintiff continued, at defendant's request, to render service to defendant as , in all respects similar to such as he had been theretofore rendering under said agreement, and that defendant accepted such service; that defendant elected to continue said employ- ment for the term of another year, and plaintiff assented thereto; that thereby said agreement was extended for [one year] from said day of , 19 ", [and there- after by similar election and assent for periods of one year each commencing on the day of , of each subsequent year.] " III. That on or about the day of , 19_ , defendant discharged plaintiff and refused to permit plain- tiff to render further services as under said extended agreement, to plaintiff's damage dollars. Wherefore [etc., demand of judgment], 613. Action for Employer's Dismissal of Agent in Violation of Contract to Pay Salary and Commissions.^'* I. That on or about the day of , 19 , ant's obligation as it arose at law. " Mason v. N. Y. Produce Exch., Allegations of a hiring on a specified 127 App. Div. 282, 111 N. Y. Supp. date are not sustained by proof of an 163, aff'd 196 N. Y. 548; Baker v. antecedent hiring which had expired, Appleton & Co., 107 App. Div. 358, foUowed by a continuance of the 95 N. Y. Supp. 125, aff'd 187 N. Y. employment by a mere holding over. 548. Brightson v. Claflin Co., 180 N. Y. i* From the complaint in Rosen- 76; Treffinger v. Groh's Sons, 100 thai v. Rubin, 148 App. Div. 44, 132 App. Div. 433, 91 N. Y. Supp. 837; N. Y. Supp. 1053; see, also, Bigelow v. ano. dec, 112 App. Div. 250, 98 Am. Forcite Powder Mfg. Co., 39 N. Y. Supp. 291, aff'd 185 N. Y. 610. Hun (N. Y.), 599, where it was held " Under such circumstances the that evidence was admissible, in re- law implies a renewal of the contract duction of damages, that plaintiff upon the same terms. Mendelson v. would not accept employment of- Bronner, 124 App. Div. 396, 108 fered him, which he was bound to do, N. Y. Supp. 807; Adams v. Fitz- although such emplojnnent was of- patrick, 125 N. Y. 124. ' fered by the defendant. Breach of Contract of Employment 661 at the defendant entered into an agreement with the plaintiff, by which it was agreed, among other things, that the plaintiff should sell the products of the defendant in certain territory within the United States for the period of one year from , 19 ; that plaintiff accepted said employment and agreed to serve for said period. II. That the defendant agreed to pay to the plaintiff for his said services the sum of dollars per [month], and the additional sum of [ten] per cent on all sales [over and above the sum. of dollars,] together with all travel- ing expenses. III. That the said plaintiff duly entered upon the per- formance of his said contract, and duly performed all the conditions of the same until discharged by defendant as hereinafter alleged. IV. That on or about the day of , 19 , and while the plaintiff was engaged in duly carrying out his said contract of employment, the defendant [without the fault of the plaintiff, wrongfully] discharged plaintiff from his said employ, and refused to permit him to carry out said agreement.'® V. That by reason thereof plaintiff has and will suffer damages, to wit, in the sum of money that he would and could have made in percentages of sales exceeding dollars,'^ together with the amount which would have been " See note 2, and also notes to lowed to remain for six months was paragraph III, of Form 610. too speculative to enter into the cal- " In Stern v. Rosenheim, 56 Md. culation of damages which he was 677, 8 Centr. Rep. 881, it was held, entitled to recover »n being dis- under a contract for employment for charged before the six months ex- a year at a fixed salary, with a com- pired. Compare, however, on this mission on all goods sold over a cer- point, Wakeman v. Wheeler, etc., tain amount, with a right to the em- Mfg. Co., 102 N. Y. 205; Reed v. Mc- ployer to discharge the employee at Connell, 17 N. Y. Weekl. Dig. 576. the end of six months, that the em- In New York, recovery of damages ployee's right to commissions only equal to the amount of commissions began when he had sold the amount or profits has been allowed when the of goods specified, and that what he proof shows they are reasonably might have sold if he had been al- certain to be made. Lavens v. Lieb, 662 Abbott's Forms of Pleading paid him as salary during said period under said agreement, amounting altogether to the sum of dollars.^* Wherefore [etc., demand of judgment]. 614. By Proprietors of Newspaper or Periodical, when Contract for Advertising has been Cancelled, i' I. That at the times hereinafter ^mentioned plaintiff was the proprietor and publisher of the [magazine] known as , published [monthly] at II. That on or about the day of , 19 defendant hired plaintiff to publish in said magazine an advertisement of [state character, briefly] for the period of , and promised to pay plaintiff therefor the sum of dollars; and plaintiff agreed to accept said em- ployment and to pubhsh said advertisement at said price. III. That thereafter and on or about the day of , 19 , defendant notified plaintiff that he de- sired to and had canceled said employment, and directed plaintiff not to publish said advertisement; that plaintiff was at all times wiUing to carry out said employment on his part [and did publish said advertisement in said maga- zine in its issues of ]. IV. That plaintiff has been damaged dollars. Wherefore [etc., demand of judgment], 615. Against Employee for Leaving Service before Ex- piration of Contract Period. That on or about the day of , 19 , at , the plaintiff hired the defendant as [state character 12 App. Div. 487, 42 N. Y. Supp. 901; nesi v. Hirzel, 58 App. Div. 530, 69 Cross V. Florscheim, 102 App. Div. N. Y. Supp. 534. 498, 92 N. Y. Supp. 832. But the "This agreement is treated as a Court of Appeals is not committed contract for services, and upon the to such holding. See Brightson v. employer's breach the damages are Claflin Co., 180 N. Y. 76, 83. prima facie the amount to be paid '* This is an allegation of general under the contract. Ware Bros. Co. damage only, and no bill of particu- v. Cortland Cart, etc., Co., 192 N. Y. lars thereof should be ordered. Bolog- 439. Breach of Contract of Employment 663 of employment] for the term of [one] year from said date, at a salary of dollars; ^^ and the defendant, in con- sideration of said salary so agreed to be paid, agreed to render such services to the plaintiff, for the said term of [one] year. That defendant, on said ,19 , entered into the service of the plaintiff under said agreement, and continued in the employment of the plaintiff until the day of ; 19 , when the defendant, without any just cause, quit the service and employment of the plaintiff, ^^ and has ever since neglected and refused to render his serv- ices to the plaintiff, according to said agreement. That plaintiff was obUged to and did pay the sum of dollars to other persons to supply the place of the defendant, in excess of the amount which plaintiff would have been obliged to pay to defendant for such service. ^^ Whekefore [etc., demand of judgment]. 616. Complaint against Engineer for Breach of Contract to Run Engine and Furnish Power, and Damages for Negligent Use. First: For a first cause of action : I. That the plaintiff is the owner of certain steam boilers and engine, and the appUances and apparatus connected therewith, situated and used by him upon the premises known as No. street, in the city of ; and also owner of certain shafts, belts and pipes, and the appur- tenances thereto belonging, which connected said steam 2" Plaintiff must allege and show Haskell v. Osborn, 33 App. Div. 127, that he bound himself to employ. 53 N. Y. Supp. 361. Lerner v. Tetrazzini, 71 Misc. 182, If the employer has made no effort 129 N. Y. Supp. 889. to fill the employee's place, and it 2' Or, where the defendant refused does not appear that the services to commence service allege: That the were of such a unique character that defendant wholly refused to perform they could not have been replaced, said agreement, to the plaintiff's dam- no damages can be recovered. Tri- age dollars. angle Waist Co. v. Todd, 168 App. 22 Such is the measure of damages. Div. 693, 154 N. Y. Supp. 542. 664 Abbott's Forms op Pleading boilers and engine with other premises upon street, in the city of , through or by means of which the plaintiff has furnished ever since before the term of his em- ployment of the defendant, as hereinafter stated, and does now furnish steam power, for running machinery, steam heat by radiation through pipes and live steam to and for his own use and benefit, at or upon premises occupied by him, and also to and for the use of other persons and firms having contracts therefor at certain rates of compensation paid by th^m respectively to the plaintiff, at or upon neighboring premises. II. That heretofore, and on or about the day of , 19 , the plaintiff employed and authorized the defendant, and the defendant agreed and undertook, as the servant and agent of the plaintiff, for a compensation to be paid to the defendant by the plaintiff, to take the entire charge of and keep running in first-class running order, the plaintiff's steam boilers and engine, and the appliances and apparatus connected therewith, and the plaintiff's shafts, belts, pipes and appurtenances aforesaid, and to furnish at his own expense the fuel, help, oil and repairs necessary to keep them running for [ten] hours each working day [holidays and four other days excepted], for the period of years from the day of , 19 , for the sole use and benefit of the plaintiff under and by virtue of a certain agreement in writing, of which the follow- ing is a copy, namely: [Here insert copy.] III. That the defendant thereupon entered upon the dis- charge of his duties under said employment and agreement, and received the charge and running of said steam engine and boilers, shafts, belts, pipes, and appurtenances con- nected therewith, as the servant and agent of the plaintiff, and for his sole use and benefit, and continued to be so em- ployed by the plaintiff until on or about the day of , 19 . IV. That on or about. the day of , 19 , Breach of Contract of EMPLaYMENT 665 the terms of said agreement were modified in certain partic- ulars by a further agreement, in writing, between the plain- tiff and the defendant, of which the following is a copy, namely : [Here insert copy.] V. That, as the plaintiff is informed and believes, the defendant, disregarding and in violation of his duty as the servant and agent of the plaintiff, under and by virtue of said employment and agreements, failed to exercise all his skill, ability and industry in favor of the plaintiff, and used his position of trust in having the charge and running of the plaintiff's said steam engine, and the control of the plaintiff's said steam boilers, shafts, belts, pipes and appurtenances connected therewith, to his own advantage and to the injury of the plaintiff, and wrongfully made certain agreements in his own name and for his own benefit, without the knowl- edge or approval of the plaintiff, with certain persons and firms, to wit [naming them], and other persons and firms whose names are unknown to the plaintiff; for the furnishing to them or upon their premises respectively, steam power, steam heat, and live steam, through or by means of said steam engine and boilers, and the shafts, belts and pipes and appurtenances in connection therewith; and, in fact, so wrongfully used said steam engine and boilers, and the shafts, belts and pipes and appurtenances in connection therewith, for his own use and benefit, and to the injury of the plaintiff, from about the time of his employment by the plaintiff, as aforesaid, to on or about the day of , 19 , and diverted the steam power, steam heat, and live steam produced and conveyed thereby, from the use and benefit of the plaintiff, to his own use and benefit, and furnished steam heat to said [naming persons ], at the prem- ises known as No. street, and steam power, steam heat and live steam to other persons and firms at neighboring premises [whose names and places where the same was furnished are unknown to the plaintiff, but which he prays leave to insert in this complaint when ascertained] ; for com- 666 Abbott's Fobms of Pleading pensation which was paid to the defendant by said [nam- ing the persons], and which was received and appropriated by the defendant to his own use; and that the defendant thereby wrongfully made large profits and received large sums of money, and appropriated the same to his own use, and prevented the plaintiff from having the full use and advantage of his said steam engine and boilers, and the shafts, belts, pipes and appurtenances in connection there- with, and of the defendant's services in the management and running of the same. VI. That by reason of the premises the plaintiff has suf- fered damage in the sum of dollars. Second: For a second cause of action the plaintiff, repeat- ing the allegations of the first four paragraphs of the first cause of action herein as a part of this, further alleges, on information and belief, as follows: That the defendant failed and neglected to perform the said agreements to take the charge of and keep in first-class running order the said steam engine and boilers, and shafts, belts, pipes and appurtenances, and to keep the same in repair to keep them running ten hours each working day [hoHdays and four other days excepted] ; that on the contrary the defendant has not kept the same in first-class running order, nor made reparation, supply of loss and restoration after dilapidation of said property, and has allowed it to be in such condition that on or about the day of , 19 , when the defendant ceased to be employed by the plaintiff as aforesaid, the said engine was found to be run and strained many horse power beyond its nominal horse power, and racked nearly to pieces, and its Ufe materially shortened thereby; that various parts of the said steam en- gine and boilers and of the appurtenances thereto belonging were broken and out of order and lost and altogether want- ing and otherwise injured; that the cut-off was worn out, and the induction valve was broken, and the piston rings were without springs, and the valves were out of place, and the glass water gauges were broken and out of order; Breach' of Contract of Employment 667 and the safety valves were loaded beyond their capacity and beyond the ball weight, and that the said pipes were out of order and the joints thereof were improperly cared for and leaked, and that the said belts were damp and worn in parts and otherwise injured and^unfit for use, and that the said steam engine and boilers and shafts, belts, pipes and appurtenances were so injured by reason of the defendant's unskillfulness and neglect to care for, repair and run the same pursuant to said employment and agreement; that the plaintiff's said property has been greatly injured, and the plaintiff has been put to expense to repair and preserve the same in proper running order, and have suffered damage in the sum of dollars. Wherefore [etc., demand of judgment], 617. By Apprentice against Master.^* I. That on or about the day of , 19 , at , the defendant made an indenture under his hand and seal with the plaintiff, and with his [father], M. N., a Copy of which is annexed and made a part of this complaint. II. That the plaintiff has duly performed all the condi- tions thereof on his part. III. That the defendant has not instructed the plaintiff in the business of , according to his covenant; to his damage dollars. IV. And for a fxu-ther breach the plaintiff alleges that the defendant has not allowed or provided for the plaintiff- meat, drink, washing, lodging, and other necessaries accord, ing to his covenant; to his damage dollars. Wherefore [etc., demand of judgment]. 618. By the Master against the Father of Apprentice. I. That on or about the day of , 19 , at , M. N. [the apprentice], with the consent of the defendant, made an indenture under his hand and seal, *' That this action will lie, even without a formal indenture, see Adams v. Miller, 1 Cranch Cir. Ct. 5. 668 Abbott's Forms of Pleading a cop3^ of which is annexed as a part of tliis complaint, and marked Exhibit A. II. That at the same time and place, the defendant made an agreement, under his hand and seal, a copy of which is also annexed as a part of this complaint, and marked Ex- hibit B. III. That the plaintiff duly performed all the conditions of said indenture and agreement on his part.^^ IV. That from and ever since the day of . , 19 , the said M. N. has willfully absented himself and re- fused to serve the plaintiff, ^^ to the damage of the plaintifif dollars. Wherefore [etc., demand of judgment]. 619. For Breach of Contract to Manufacture Goods.^® I. That on or about the day of , 19 , at " It has been held that the usual covenants in an apprentice's inden- ture are independent, and the plain- tiff need not aver performance on his part. PhUlips v. Clift, 4 Hurl. & Nor. 167, 1 Saund. 235. 2^ In an action upon a contract of apprenticeship between father and master, containing the following clause: "We the undersigned bind ourselves, so far as it is in our power, to see the following contract fulfilled. 1, John G. Young, on my part, that my son Henry shall work as an ap- prentice to Frederick Van Dom, five years from the first day of No- vember, in the year 1846; that the said Henry shall be a good, faithful, and obedient apprentice. That he shall comply with the rules and reg- ulations of said Van Dom's house and shop, so far as such rules are common," etc. The breach alleged was, that the son, after having been in the service of the plaintiff, under the contract, about three years and a half, left and abandoned said service, and has not returned, and that the defendant " has not used any, or his best endeavors to have the said Henry serve the said plaintiff as such apprentice," etc., "but the defendant has neglected and refused to fulfill said agreement," etc. Held, on demurrer, that the allegations that defendant had not used any endeavors, and refused to do any- thing, sufficiently showed a breach. Van Dom v. Young, 13 Barb. (N. Y.) 286. ^ The distinction between a con- tract for sale and one for production or manufacture is important, by reason of the fact that the provision of the Statute of Frauds as to sales does not apply to the latter, and the provision as to contracts by their terms not to be performed within one year, is not likely to apply to the former. If the contract of a portrait painter were deemed a contract of sale because the property in the Breach of Contract of Employment 669 , the defendant promised and agreed with the plain- tiff to manufacture and deliver to the plaintiff [at plaintiff's store at ], on or before the day of , 19 , [state briefly the character and amount of goods], for which the plaintiff agreed to pay the defendant dollars. II. That the plaintiff duly performed all the conditions of said agreement on his part, and [at all times before and] on said day of , 19 , was ready and willing- at said place and offered to defendant to receive and pay for said [goods]. III. That defendant wholly refused and neglected to manufacture or deliver said [goods], or any part thereof, to plaintiff's damage dollars. Wherefore [efc, demand of judgment]. 620. The Same, on a Promise to Memufacture out of Plain- tiff's Materials. 2' I. That on, etc., at, etc., the defendant, in consideration that the plaintiff delivered to him [fifteen bags of wool], of the value of dollars, to be manufactured into [sat- inets] for a reasonable compensation, to be paid him there- for by the said plaintiff, agreed to cause the said wool to be manufactured into [satinets,] and agreed to deliver the same so manufactured to plaintiff early in the next spring canvas and the oils and pigments Under a complaint for goods sold, thereon must sooner or later pass to etc., a recovery for work and labor in the sitter, the statute might be fatal producing them cannot be had against to an oral contract by reason of the objection unless it is a case for amend- atnount of the payment agreed. The ment. Schrimpton & Sons v. Dwor- New York rule is to inquire whether sky, 21 N. Y. Supp. 461, 2 Misc. 123, the claimant's skill was the thing 49 N. Y. State Rep. 29. bargained for; if so the allegation For forms on seller's breach of con- should be of services and materials tract of sale, see -post, Chapter furnished, and not of sale. Passaic XXVII, Sales of Personal Prof- Mfg. Co. V. Hoffman, 3 Daly, 495; erty. Warren Chem. Co. v. Holbrook, 118 " See Enos v. Thomas, 4 How. Pr. N. Y. 586, 593. Different views pre- (N. Y.) 48. vail in some other States. 670 Abbott's Forms of Pleading thereafter, or as soon afterwards as the same could be done by the defendant and his servants. II. That the said [wool] was so manufactured by the said defendant, before the day of , 19 , on which day the plaintiff, at , duly demanded said [satinets] of the defendant, and then and there offered to pay him the sum of dollars, which was a reasonable compensation for his services in the said manufacturing. III. That the defendant then, and ever since, refused and neglected to deliver the same, to the damage of the plaintiff dollars. [Or, II. That the defendant did not manufacture said wool into satinets, although a reasonable time therefor elapsed before this action, to the damage of the plaintiff dollars.] [Or, III. That the defendant so negligently and unskill- fuUy manufactured said wool that the satinets were of no value, to the damage of the plaintiff dollars.] ^^ Wherefore [etc., demand of judgment]. 621. For Goods Made at Defendant's Request, and not Accepted.^" [Sustained in Lefler v. Sherwood, 21 Hun (N. Y.), 573.] I. That during the month of , 19 , plaintiff was a [dentist], doing business in the city of II. That during said month, defendant employed plain- tiff to manufacture for him, said defendant, [a, set of teeth], and agreed to pay plaintiff therefor the sum of dol- lars upon the completion thereof. III. That plaintiff duly performed all the conditions of said agreement on his part, and pursuant to such employ- ment and agreement, plaintiff did, within days thereafter, duly manufacture for defendant [such set of ^ For notes of cases on measure of tinction between a contract of sale, damages, see post, Chapter XXVII, and a contract for the manufacture, Sales of Personal Property. of goods. 29 See note 26 to Form 619 on dis- Breach of Contract of Employment 671 teeth], and upon the completion thereof tendered and of- fered it to the defendant and demanded payment therefor/" but defendant neglected and refused to accept the same, or to pay therefor, to the damage of the plaintiff in the sum of dollars. ^^ Wherefore [etc., demand of judgment]. 622. Against Agent for Breach of Instructions in Selling for Less Price.^^ [Form as suggested in Monks v. Bruce, 3 N. Y. Supp. 419.] I. That at and on or about the day of , 19 , plaintiff deUvered to the defendant, as his agent to make sale thereof [a blooded mare] belonging to plaintiff, to be by defendant taken to , and there sold for a sum not less than the sum of dollars, which was the value thereof, and if not so sold at said price to be returned to plaintiff. II. That defendant, in violation of his said instructions, sold said [mare] for a sum less than said sum, to wit, for [inserting the price for which the mare was sold], whereby and by reason of which misconduct on the part of the defendant '" Without proof that the goods In the absence of any allegation as ordered were in fact manufactured, to what has been done with the goods, plaintiff's measure of damage is the the inference is that plaintiff has profits lost. Bishop v. Auto. Register elected to retain them at their Co., 19 App. Div. 268, 46 N. Y. Supp. market value. BeUe of Bourben Co. 97, aff'd 165 N. Y. 662. v. Leffler, 87 App. Div. 302, 84 N. Y. '^ Where the complaint alleges that Supp. 385. defendant employed plaintiff to man- '^ An agent authorized to sell at a ufaeture certain castings at an agreed- specified price, as in this case, is not price per pound; that plaintiff did so Uable in trover for seUing at a price and furnished same; that defendant below instructions, the remedy being neither accepted nor paid for them; for breach of instructions. The sale but the complaint failed to allege made by the agent effectually trans- that plaintiff had suffered damage; ferred the title to the purchaser, and the complaint was held good as for the principal's remedy for the wrong the measure of damages at the con- is breach of duty on the part of the tract price. Mahoney v. Thompson, agent. Laverty v. Snethen, 68 N. Y. 24 Wkly. Dig. (N. Y.) 204. 522. 672 Abbott's Forms of Pleading the plaintiff suffered damage to the amount. of [stating the difference between the two sums]. Wherefore [etc., demand of judgment]. 623. Against Stockbroker for FaUxire to Fill Plaintiff's Orders. [Adapted from Ryder v. Sistare, 2 N. Y. Supp. 715.] [I. That at all times hereinafter mentioned defendants were co-partners doing business as stockbrokers at .] II. That on or about the day of , 19 , plaintiff entered into an agreement with defendants by which defendants promised, in consideration of specified commis- sions, to be paid to them by plaintiff, to buy and sell for the account of the plaintiff, upon his order aj;id direction so to do, any of the stocks which are bought and sold on the New York Stock Exchange, upon plaintiff's accompanying his order with an amount aggregating [ten] per cent of the [par] value of the securities ordered to be bought. III. That on the day of , 19 , plaintiff gave to said defendants his order to buy [one hundred] shares of the stock of the Company, which stock was at that time bought and sold on said exchange, and plaintiff accompanied said order with the sum of [one thousand] dol- lars, which was [ten] per cent of the [par] value of said stock. IV. That said order could have been executed by said defendants upon said day by the exercise of reasonable diligence, and said stock could have been then bought for plaintiff at a price not exceeding dollars per share, but the defendants failed and neglected so to do. V. [Show special damage resulting, as:] That thereafter and on or about the day of , 19 , plaintiff purchased said shares of stock and was compelled to pay therefor the simi of dollars per share, which was the lowest price at which said stock could then be bought. VI. By reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. Breach op Contract of Employment 673 624. The Same, for, Violation of Instructions.'* [7 and II as in Form 62S.] III. That on said day and pursuant to said agreement defendant purchased for plaintiff [one hundred shares of the stock of the Company]. IV. That -thereafter and on the day of , 19 , plaintiff directed defendant to sell said stock at [the market price therefor]. V. That defendant failed and neglected to sell said stock pursuant to such direction, to plaintiff's damage dollars.*^ Wherefore [etc., demand for judgment]. 625. Against Printer for not Fulfillling Agreement to Print, and for Negligent Injury to the Stereotype Plates.'' First: For a first cause of action : I. That on or about the day of , 19 , plaintiff made a contract with defendant, whereby defend- ant agreed to furnish paper for, and to print from plaintiff's stereotype plates, and bind for the plaintiff, within [thirty] days, [two] thousand copies of a book of memoirs, for the price, and at the rate of dollars for each thousand copies, payable at [three] months from the completion of the work. II. That in accordance with, and for the purpose of ful- filling the contract, the defendant received into his posses- sion from the plaintiff, the stereotype plates of the book of the value of dollars. '^ From Ely v. RusseU, 135 App. ference between the price received Div. 303, 119 N. Y. Supp. 916. and the highest price of the stock »* An allegation that the defendant within a reasonable time after plain- without plaintiff's authority sold tiff receives notice of the sale. Id. stock he was carrying for plaintiff, '' This is, in substance, the com- whereby plaintiff was damaged plaint in Badger v. Benedict [1 Hilt, dollars, charges a breach of (N. Y.) 414, affirming 4 Abb. Pr. contract. Barber v. EUingwood, 137 (N. Y.) 176], modified to meet the App. Div. 704, 122 N. Y. Supp. 369. objection raised in that case, to its The measure of damages is the dif- stating both as one cause of action. 674 Abbott's Forms of Pleading III. That after so receiving such plates, defendant neg- lected to fulfill the contract, and afterwards refused to fulfill it, unless the plaintiff would advance thereon about dollars. IV. That accordingly the plaintiff did, about the day of , 19 , advance thereon to the defendant dollars, but after receiving the money defendant refused to fulfill, or to return the plates or the moneys thus advanced, to the plaintiff's damage dollars. Second: For a second cause of action the plaintiff repeats the allegations of paragraphs I and II of the first cause of action, and alleges: V. That, by the gross carelessness and negligence of the defendant and his servants, the stereotype plates delivered to defendant, as hereinbefore alleged, were destroyed, so that they were entirely lost to the plaintiff, and by reason of which he was put to a great additional expense in printing the two thousand copies agreed on, viz., dollars, and was also subjected to other expense and damage by reason of the delay in the publication, in consequence of which the sale of the book was greatly injm-ed, to his damage dollars. Wherefore [etc., demand of judgment]. 626. Against a Builder, for Not Completing his Work; with Special Damage by Loss of Rent. I. That on or about the day of , 19 , at , plaintiff and defendant entered into an agreement, under their hands and seals, of which a copy is annexed as a part of this complaint [or state its legal effect, e. g., thus, whereby the defendant agreed to erect, in a substantial manner, and according to the specifications therein contained, a two-story frame house in the village of, county of , and to have the said house completed and ready for occu- pancy on or before the day of , 19 , for which this plaintiff agreed to pay him dollars, pay- able as follows: When the foundations should be laid, the Breach of Contract of Employment 675 sum of dollars; when the first story should be up and the second tier of beams laid, dollars; when the second story should be up and the third tier of beams laid, dollars; and when the roof should be on, dollars; and when the house should be entirely completed, the balance of dollars]. II. That the plaintiff duly performed all the conditions, thereof on his part. III. That the defendant entered upon the performance of the work under said contract, and laid the foundations of the said house, and commenced the erection of the first story thereof; but has neglected to finish the said building pursuant to said contract, and has left the same with the foundations laid, and the walls of the first story partly up, and that although the time for the completion of said build- ing expired before this action, he has neglected and refuses to complete the same, except as aforesaid,'^ and has wholly abandoned the performance thereof. IV. That the plaintiff, on or about the day of , 19 , at , made an agreement with one M. N., whereby he agreed to let, and said M. N. agreed to hire, the said building few one year from the day of , 19 , at the yearly rent of dollars, of which the defendant had due notice. V. That by reason of the defendant's failure to complete the contract aforesaid upon his part, the plaintiff has been unable to complete said house so as to give said M. N. oc- cupancy thereof, and has been thereby deprived of the prof- its of said lease, and has been otherwise greatly injured, to his damage dollars. ^^ Wherefore [etc., demand of judgment], " In an action for breach of a con- connection with proper averments, tract to build according to a plan and in what particular the contract was specifications, an averment merely broken or departed from. So held, negativing the performance in the in an action merely against the words of the contract is insuflBcient. builder's surety. C!ooney v. Winants, Enough of the plans and specifica- 19 Wend. (N. Y.) 604. tions should be stated to show, in " For the measure of damages in- 676 Abbott's Forms of Pleading 627. Against the Same for not Properly Finishing a Build- ing. I. That on or about the day of , 19 , at , plaintiff and defendant entered into an agree- ment, in writing, under their hands and seals, of which a copy is annexed, as a part of this complaint, marked "Sched- ule A." II. That the plaintiff duly fulfilled all the conditions thereof on his part. III. That the defendant did not fulfill said contract on his part, but, on the contrary, erected said building in so unskillful and negUgent a manner [and of such unsuitable materials], that, shortly after its completion, the foundation settled, the walls cracked, the roof and walls became leaky, whereby a considerable portion of the plastering fell, and the house otherwise became, and is, entirely untenantable and useless, through the negligent and unskillful manner of its erection, to the damage of the plaintiff dollars. Wherefore, [etc., demand of judgment]. 628. By Sub-contractor, for Damages Caused by Principal's Failure to Fulfill his Agreement to Complete, to a Certain Point, at a Specified Date.'* I. [After alleging the terms of a contract whereby plaintiff agreed to build two abutments of a bridge.] II. That according to the terms of the contract the de- fendant was to prepare the foundations of the work ready to receive the masonry to be furnished and constructed by the plaintiff by the day of , 19 ; but that, al- cident to such a breach of contract, 28, where a judgment for plaintiff see Kidd v. McCormick, 83 N. Y. was affirmed, and plaintiff's meas- 391, 11 N. E. Rep. 438. ure of damage held to be any direct If the time for performance has loss to the plaintiff occasioned by the been extended, or waived by plaintiff, defendant's suspending or unreaSon- see Taylor v. Goelet, 208 N. Y. 253, ably delaying the prosecution of the as to his right to rescind. work without the consent of the " From Louisville, etc., R. Co. v. contractor. HoUerback (Ind.), 5 Northeast. Rep. Breach of Contract of Employment 677 though the plaintiff was ready with his tools, machinery, hands, material, barges, and other things necessary for the construction of the piers at the time fixed in the contract, yet the defendant wholly neglected and refused to prepare the foundations, as it had agreed to do, until the lapse of [15] months after the time it had fixed; that by reason of the failure of the defendant to perform its part of the contract in the preparation of the foundations the plaintiff was greatly injured and damaged in this: (1) That he was compelled to pay out and expend, and did pay out and expend, in extra handling of stone, made necessary by the delay in the preparation of the foundations, the sirai of dollars; that by reason of this delay he was compelled to unload his material from the barges onto the river bank, and then reload onto the barges, and reload on the railroad cars, to his great damage. (2) That he was further greatly injured and damaged by the delay of the defendant in this loss of time of plaintiff and of non-user of ropes, blocks, derricks and other tools and machinery, loss and destruction of material, and wear and tear and injury to ropes, blocks, derricks, and other tools and machinery, by reason of exposure and the delay in the use of material which he had furnished and paid for, being interest on dollars for [15] months — in all the sum of dollars. III. That by the terms of the contract the defendant agreed to furnish to the plaintiff all the cars necessary for the fast completion of the work, upon application of plaintiff, so that plaintiff should not be hindered in the work for want of cars; that after the foundations were completed, and the plaintiff began the construction of the piers, he repeatedly made appHcation to the defendant for cars for the transporta- tion of stone to the bridge site, and defendant failed, neg- lected and refused to furnish plaintiff cars, by which he was greatly delayed in the work; that is to say for [100] days, to his damage dollars. Wherefore [etc., demand of judgment]. CHAPTER XXV COMPLAINTS IN ACTIONS ON CONTEACTS OF INDEMNITY ^ PAGE 629. Surety against principal, on a promise to indemnify him against damages as surety 678 630. On agreement to indemnify against loss 680 631. Agent against principal on agreement to save him harmless 681 632. Sub-tenant against his immediate lessor on express agreement 681 633. The same, on an implied contract 682 634. By retiring partner, on the remaining partners' promise to indem- nify him against damage 683 635. The same, against sureties on partner's bond to indemnify against liability 684 636. Upon defendant's promise to indemnify plaintiff, if he would defend an action brought against him for money which the defendant claimed : , 686 637. Against contractor who expressly agrees to indemnify against results of his negligence 688 629. Surety against Principal on a Promise to Indemnify him against Damages as Surety. ^ I. That at , on or about the day of ' Under express agreements other essary to aver actual damage. Natl, than by bond; for complaints in ac- Bank of Newburgh v. Bigler, 83 tions on bonds of indemnity see N. Y. 51; Brown v. Mech. & Tr. chapter XIV on Actions on Bonds. Bank, 43 App. Div. 173, 59 N. Y. For complaints on implied agree- Supp. 354. ments to indemnify, see Chapter II, For allegations in an action by a Monet Paid. servant, on his employer's promise to ^ In an action upon an ordinary indemnify him, see Allaire v. Ouland, contract of indemnity against dam- 2 Johns. (N. Y.) 52. age, the complaint must show actual For allegations of a complaint in an damage. Norris v. Reynolds, 131 action by the. assignor of a contract, App. Div. 818, 116 N. Y. Supp. 106. upon the assignee's promise to in- Where the plaintiff was compelled to demnify him against any breach of it, pay by suit, this should be stated, see Holmes v. Weed, 19 Barb. (N. Y.) naming the court. On an agreement 128. to save from liability, it is not nee- 678 Contracts of Indemnity 679 , 19 , the defendant, in consideration that the plaintiff would become surety for him by executing a bond [or specify what other obligation], of which a copy is annexed marked "A" and made a part of this ccjmplaint, the defend- ant promised and agreed with the plaintiff that he would indemnify him and save him harmless from and against all damages, costs and charges which he might sustain by reason of his becoming surety as aforesaid. II. That the plaintiff, relying upon such promise of the defendant, duly executed and delivered such bond [or other obligation]. III. That the defendant did not indemnify the plaintiff nor save him harmless from such damages, costs and charges; but, on the contrary, the plaintiff, under a judgment, on or about the day of , 19 , duly given against him by the Court, in the county of , in an action brought against him upon said bond by M. N., therein named as obligee, was compelled to pay, and on or about the day of , 19 , did pay dollars in satisfaction and discharge of said judgment, and plaintiff incurred also necessary costs and expenses ^ in said action and on account of said bond to the amount of dollars, which plaintiff paid.* ' An averment that plaintiff nee- The court must be named. Patton v. essarily incurred expenses, is equiv- Foote, 1 Wend. (N. Y.) 207. alent to an averment that he incurred As to the right to recover costs paid necessary expenses. Glover v. Tuck, by the surety, see Chit. Jr. Cont. 1 Hill (N. Y.), 66. (5th Am. ed.) 604; Davenport v. *0n a covenant to save harmless Ferris, 6 Johns. (N. Y.) 131; Bell v. and indemnify against claims, costs, Morrison, 1 Pet. 350; Hamilton v. damages, etc., it is not enough, as Schofield, 17 Eng. Com. L. 457; Jones against a motion to make complaint v. Brooke, 4 Taunt. 464; Stracy- v. more definite and certain, to allege Bank of England, 19 Eng. Com. L. that plaintiff was forced to pay, but 338; Hubbly v. Brown, 16 Johns, the declaration must show how and in (N. Y.) 70; Fulton Bank v. Stafford, what manner. Packard v. Hill, 7 2 Wend. (N. Y.) 484; Everingham v. Cow. (N. Y.) 434. Saying that he Langton, 2 McCord, 159; Steinhart v. was compelled to pay by a court of Doellner, 34 N. Y. Super. Ct. 218; Ins. competent jurisdiction, is not enough. Co. v. Watson, 59 N. Y. 390; Reilly ;;. Moffat, 20 N. Y. Wkly. Dig. 390. 680 Abbott's Forms of Pleading IV. That the defendant had notice of the bringing of said action, and was duly given opportunity to defend the same; that he has not repaid to plaintiff any part of the amount of said judgment and expenses. Wherefore [etc., demand of judgment]. 630. On Agreement to Indemnify against Loss. [Sustained in Scott v. Conn, 75 App. Div. 561, 78 N. Y. Supp. 274.] = I. That on or about the day of ; 19 , at , plaintiff entered into an agreement with one M. N. [state character, as:] whereby plaintiff agreed to manufacture and deliver to said M. N. [a printing press] for the price of dollars, which said M. N. agreed to ac- cept and to pay said amount therefor. II. That plaintiff duly performed all the conditions of said agreement, and duly tendered delivery of said printing press to said M, N., but said M. N. refused to receive the same or to pay therefor. III. That at the time of the making of said contract, and as an inducement to plaintiff to make the same, defendant promised and agreed that in the event of the refusal by said M. N. to accept or pay for said printing press, he, defendant, would indemnify plaintiff against any loss which he might sustain thereby. IV. That said M. N. is now wholly insolvent, and that by reason of the premises plaintiff is entitled to recover of de- fendant upon his said agreement of indemnity. V. That plaintiff has requested defendant to perform his said agreement, but defendant has refused so to do, to plain- tiff's damage dollars. Wherefore [etc., demand for judgment]. * The court held that it was not was construed as one of guaranty necessary to show that plaintiff has against loss, or as one of indemnity recovered judgment against the prin- for the failure to take and pay for cipal debtor, and execution returned the machine, unsatisfied, whether the agreementk Contracts of Indemnity 681 631. Agent against Principal on Promise to Save Him Harmless. [Sustained in Rawle v. Moore, 142 App. Div. 429, 127 N. Y. Supp. 6.] I. That at all the times hereinafter mentioned, plaintiff was and is a broker, doing business at II. That on or about the day of , 19 , plaintiff sold [one hundred] shares of the capital stock of the Company for the defendant, at the request of defendant, and as an inducement to them to buy, plaintiff agreed with the purchasers, at the request of defendant, that he and the defendant would buy the stock back at par, if so desired by them. III. That plaintiff had no interest in the matter except as a - broker, and that defendant agreed, in consideration of plain- tiff's so agreeing with the purchasers to repurchase the stock, that he would hold and save plaintiff harmless, and pay the entire amount necessary to repurchase the stock, IV. That thereafter, in fulfillment of his agreement with the purchasers of the stock, plaintiff was obliged to expend the sum of dollars in repurchasing the same, and that before doing so he called upon the defendant to re- purchase the stock, but the defendant neglected and re- fused so to do. V. That defendant has paid plaintiff dollars on account of the transaction, but has failed and refused to pay the balance, being dollars, together with interest thereon. Wherefore [etc., demand for judgment]. 632. Sub-tenant against his Immediate Lessor, on Express Agreement. I. That, at the times hereinafter mentioned, the defendant held certain premises [very briefly designating them] for the term of years from , as tenant thereof to one M. N., at a yearly rent of dollars, payable [quarterly] on the [state days of -payment]. 682 Abbott's Forms of Pleading II. That on or about the day of , 19 , in consideration that the plaintifif then became the tenant to the defendant of said premises [or, of , which premises were a portion of the above-described premises], at a yearly- rent of dollars, payable to him by the plaintiff, the defendant * gave to the plaintiff a written agreement to indemnify him, of which the. following is a copy [or state its substance, e. g., thus, and thereby promised that he would, during the continuance of the tenancy of the plaintiff, in- demnify him and save him harmless from and against the payment of the rent payable to M. N. as aforesaid, and from and agamst all costs, damages or expenses to which he might be put by reason of any default in the payment thereof]. III. On information and beUef, that the defendant failed and neglected to pay the sum of dollars as the [quarter's] rent which became due from him to said M. N. as aforesaid on the day of , 19 . IV. That by reason thereof said M. N., on or about the day of , 19 , in the Court of , commenced summary proceedings to recover possession of said premises, which were then occupied by the plaintiff, for the non-payment of said rent, and thereby the plaintiff was obliged to pay, and on or about the day of , 19 , did pay to said M. N., to the use of the defendant, the sum of dollars, the amount of said rent, together with dollars, the costs and charges of- said proceed- ings, no part of which has been repaid to plaintiff by de- fendant, and to the damage of the plaintiff dollars.® Wherefore [etc., demand of judgment\. 633. The Same, on an Implied Contract.^ [As in previous form to *, continuing] promised the plaintiff ' The plaintiff may sue to recover to the defendant is not a condition the rent paid, as for money paid to precedent. Briant v. Pitcher, 16 the use of the defendant. Where C. B. 354. damages beyond that are sought, ' Where the underlease to the plain- they must be specially stated. tiff is by deed, the remedy is on the The payment of the plaintiff's rent express covenant for quiet enjoys CONTBACTS OF INDEMNITY 683 during the continuance of the plaintiff's tenancy to in- demnify and save him harmless from and against the pay- ment of the said rent payable by the defendant to the said M. N., and from and against any action, costs, charges, or expenses by reason of the non-payment thereof; and the plaintiff became tenant to the defendant of the said premises upon the terms aforesaid. [71/ and IV as in preceding form.] 634. By Retiring Partner, on the Remaining Partners' Promise to Indemnify him against Damage. I. That the plaintiff and the defendants, having thereto- fore been partners in trade at , under the firm of B. & Z., on or about the day of , 19 , dissolved said partnership, and mutually agreed that the plaintiff should retire from said firm and that the defendants [should take and keep all the partnership property, and in consideration thereof pay all debts of the firm, and indem- nify the plaintiff against and save him harmless from all claims that might be made upon him on account of any indebtedness of the said firm, and all costs and charges thence arising, or, otherwise, according to terms of agreement]. II. That the plaintiff duly performed all the conditions thereof on his part. III. That the defendants have not paid all said debts nor indemnified the plaintiff therefrom; but, on the con- trary, on or about the day of ; 19 , one M. N. recovered judgment,' which was duly given in the Court. against the plaintiff and defendants, upon a debt due from the said firm to the said M. N., of which debt and action the defendants had notice but failed to pay,° ment, or that implied by the word the plaintiff, it is unnecessary to aver "demise," as there is no other implied how the third person commenced the contract of indemnity. Schlencker suit; only the fact of a judgment V. Moxey, 3 B. & C. 789; see, also, having been duly given is necessary. Fifth Ave. Building Co. v. Kernochan, Allaire v. Ouland, 2 Johns. (N. Y.) 52. 221 N. Y. 370. » Where, after dissolution, one part- ' In an action founded on a re- , ner sues the other for breaking his covery by a third person against covenant to indemnify him against 684 Abbott's Forms of Pleading and on or about the day of , 19 , the plaintiff necessarily paid dollars in satisfaction of the same. [IV. And for a further breach the plaintiff alleges, etc., setting forth any other liabilities.] V. That the defendants have not paid the same to the plaintiff, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 636. The Same, against Sureties on Partner's Bond to Indemnify against Liability.^" I. That on or about the day of , 19. , the plaintiff and one M. K., theretofore co-partners in busi- ness as plumbers, in the city of , under the firm name of K. & B., dissolved their connection as such co- partners, and thereupon entered into an agreement in writing of said date, duly executed and signed by them respectively and delivered, whereby it was, among other things, mutually agreed that plaintiff should retire from said co-partnership and the said K. should retain and keep to his sole and sep- arate use all and singular the partnership property of every name and character, whether in action or possession, and wheresoever situated; and, in consideration thereof, he, said K., should pay and discharge the debts so due by the said firm to the extent of dollars from his own in- dividual resources, and to the like extent hold the plaintiff harmless and indemnified of and from and by reason of any the firm debts, and to pay them, " This is, in .substance, the com notice of a debt, on account of which plaint which was sustained on de- suit is brought, need not be averred, murrer in McGee v. Roen, 4 Abb. Pr. especially if it is averred that the (N. Y.) 8, lon the ground that the books and papers of the firm were agreement set forth was to save from transferred to the defendant. It is liability, and was broken by a failure a general rule in pleading, that where to pay the debt alleged without the matter does not Ue more properly showing resultant damage to plain- in the knowledge of the plaintiff tiff. than of the defendant, notice need See notes to preceding forms I not be averred. Clough v. Hoffman, under this title. 5 Wend. (N. Y.) 499. Contracts of Indemnity 685 claims or liabilities due by the said firm [or, instead of stating the sid)stance, say, which agreement contained covenants on the part of the said K., of which the following is a copy: copy of covenant]. II. That the defendants, in consideration of said agree- ment between said K. and the plaintiff, and of one dollar to each of them then paid by the plaintiff, entered into an agreement, duly executed by them respectively, and de- livered the same to the plaintiif [a copy whereof is annexed as a part of this complaint], whereby they severally under- took and bound themselves to the plaintiff for the faithful performance by the said K. of his aforesaid covenants. III. That said K., under his said agreement with the plaintiff, retained and kept to his sole and separate use all the partnership property of the firm, but has not, pursuant thereto, paid and discharged the debts due by said firm to the extent aforesaid, and has failed to hold this plaintiff harmless and indemnified to the like extent of and from and by reason of any claim or liabilities due by the said firm. IV. That at the time of the dissolution of the partnership, and agreement aforesaid, the ^aid firm were indebted to the firm of L. & Co. of , for merchandise sold and delivered,, in the sum of dollars, which was then due and payable," which indebtedness was included among such debts, to be paid by the said K., under his agreement aforesaid with the plaintiff; but the said K., although re- quested, did not pay L. '& Co. their said demand, or any part thereof; that thereupon plaintiff paid to said L. & Co. the amount of said claim. V. That on or about the day of , 19 , an action was duly commenced by the plaintiff, in the Com-t of , to recover upon and by virtue of the aforesaid agreement, from the said K. the said amount so paid, with " In assigning breaches of a cove- paid, thereby producing great pro- nant to pay certain accounts, which lixity. Jones ads. Hurbaugh, 5 N. Y. the plaintiff had paid, etc., it is not Leg. Obs. 19. necessary to set out the accounts so 686 Abbott's Forms of Pleading interest, amounting to dollars, and interest thereon; and such proceedings were thereupon had, that on the day of , 19 , judgment was recovered in such action- [which was duly given] in favor of the plaintiff against the said K., for the sum of dollars, including costs; upon which judgment execution was at once duly issued against the said K., and returned wholly unsatisfied. VI. That prior to the commencement of said action, the plaintiff caused notice in writing to be served on the defendants respectively, as sureties aforesaid, of his inten- tion to commence such action to compel the payment of the indebtedness aforesaid to said L. & Co., by said K., or for him. VII. That the plaintiff has necessarily paid or expended, in consequence of the neglect and refusal of said K. to com- ply with his agreement aforesaid with the plaintiff, at dif- ferent times since the said day of , 19 , in addition to the costs of said action included in said judg- ment, for legal costs, counsel fees, disbursements, and for other reasonable expenses, divers sums of money, amount- ing in the aggregate to dollars, which remain due and unpaid to the plaintiff by the said K., who, although [on or about the day of , 19 ,] requested, refuses to make payment thereof to the plaintiff. VIII. That the defendants [although, on the day of , 19 , requested,] have not paid to the plaintiff the amount of said -judgment, or the legal costs, counsel fees, disbiirsements, and expenses aforesaid. Wherefore [etc., demand of judgment]. 636. Upon Defendant's Promise to Indemnify Plaintiff, if he would Defend an Action brought against him for Money which the Defendant Claimed. I. That on or about the day of , , 19 , plaintiff received the sum of dollars, as proceeds of the sale of a certain [horse] left with plaintiff for such purpose by one M. N. Contracts of Indemnity 687 II. That afterwards, on .or about the day of , 19 , the defendant made claim to plaintiff that he was the owner of said horse at said time of sale, and by reason thereof was entitled to said sum of dollars, and thereupon plaintiff, at the request of the defendant, delivered to him the said sum of money, the plaintiff not knowing to whom the same rightfully belonged. III. That thereafter the said M. N. demanded said sum of plaintiff and threatened to commence an action at law against him for the recovery thereof. IV. That afterwards, and on or about the day of , 19 , the plaintiff, at the request, of the defend- ant, agreed with the defendant that he, plaintiff, would defend any action which the said M. N. should prosecute against him for the said money; and the defendant, in con- sideration of the premises and of such agreement, promised the plaintiff to save him harmless from the consequences of the said action, and from all loss or damage therein and . by reason of the premises. V. That said the M. N. afterwards, on [etc.], commenced an action against the plaintiff in the Court of of county, for the recovery of the said sum of money, of which the defendant then had notice. VI. That the plaintiff, with the privity of the defendant, and to the best of his ability, defended the said action ; but that thereafter, and on or about the " day of , 19 , a judgment was duly giyen in said court against the plaintiff in said action, in the amount of dollars; and afterwards, an execution, was duly issued upon the said judgment, and the plaintiff, to prevent his property from being taken on said execution, was forced to pay, and on or about the day of , 19 , did pay the said sum of dollars, and also the sum of dollars for costs and fees, and other expenses upon the said writ. VII. That by reason aforesaid plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 688 Abbott's Forms of Pleading 637. Against Contractor who. Expressly Agrees to In- demnify against Results of his Negligence. '- I. [Allege corporate capacity of any party; see Form 44.] II. That on or about the day of , 19 , arid contemporaneously with the execution between plain- tiff and the defendant Y. Z. of an agreement wherein said defendant undertook to [state briefly the character of the con- tract] for the sum of dollars to be paid to him by plaintiff, and pursuant to a provision in said agreement that a proper bond of indemnity of the character hereinafter specified should be given to plaintiff, said defendant Y. Z. and the defendant [Surety Company] executed and delivered to plaintiff, sealed with their seals, their bond of indemnity wherein they agreed to be held and firmly bound to plaintiff in the sum of dollars, the condition thereof being that if the said defendants should pay and satisfy any judg- ments which might be obtained against plaintiff by reason of personal injuries or injuries to property sustained by reason of any act done or omitted to be done by the defend- ant Y. Z. in the performance of said agreement with plain- tiff [or otherwise allege the condition of the bond according to the fact], together with all costs and disbursements con- nected with the prosecution of any action or actions wherein such judgments are obtained, then said obligation to be void, otherwise in full force and virtue. [Or may annex a copy of the bond.] III. That on or about the day of » 19 , one M. N. commenced an action in the Court against plaintiff [and said Y. Z.] to recover dollars damages for [personal injuries alleged to have been received by him by falling into an unguarded and unlighted excavation made by the defendant Y. Z. in the attempted performance of his said agreement with plaintiff]. IV. That the defendant Y. Z, duly appeared in said action by his attorney and [or, was duly given notice by '* Adapted from complaint in N. Y. question of pleading was directly V. Baird, 191 N. Y. 501, where no involved. Contracts of Indemnity 689 plaintiff of the commencement of said action, and thereupon through his attorney] defended against the same; that such proceedings were thereafter had in said action that on the day of , 19 , judgment was duly given therein in favor of said M. N. and against plaintiff [and said Y. Z.] for dollars damages, and dollars costs, making in all the sum of dollars. VI. That thereafter plaintiff paid said judgment, and although repayment of the amount so paid has been duly demanded by plaintiff of the defendants, no part thereof has been paid. Wherefore [etc., demand for judgment]. CHAPTER XXVI COMPLAINTS IN ACTIONS ON PROMISE TO MARRY 638. For refusal 690 639. Marriage with another 692 638. For Refusal. I. That on or about the day of , 19 , at , plaintiff, at the request of the defendant, prom- ised to marry him, and defendant then and there in con- sideration thereof promised tomarry plaintiff, on the day of , 19 , [or, at a time thereafter to be mutually agreed upon and within a reasonable time,^ or, otherwise, according to thefact].^ ^ Specific performance will not lie upon such a contract. Cheney v. Ar- nold, 15 N. Y. 345. Although actions for breach of promise are brought al- most exclusively by women, the ac- tion lies in behalf of a man. Harri- son V. Cage, 1 Ld. Raym. 386; Gross V. Hochstem, 72 Misc. 343, 130 N. Y. Supp. 315. The cause of ac- tion on the promise does not survive the promisor's death. Wade v. Kalbfleisch, 58 N. Y. 282. Though one of the parties be an infant, the contract is binding on the other [Wil- lard V. Stone, 7 Cow. (N. Y.) 22]; and it is not necessary to allege the age of the plaintiff, in a suit for breach of promise to marry. Glasscock v. SheU, 57 Tex. 215. But the action cannot be maintained against an infant [Bedell v. Powell, 13 Barb. (N. Y.) 183]; and this is so although the plaintiff may, by reasdh of the promise to marry, have been induced to allow him. to have connection with her. Leichtweiss v. Tresk6w, 21 Hun (N. Y.), 487. But where the promise is alleged to have been, made at a certain date, to which the de- fendant pleaded infancy, it is not error for the court to permit an amended petition to be filed stating other promises, and a ratification of the first promise after the defend- ant came of age. Schreckengast v. Ealey, 16 Neb. 510, 20 N. W. Rep. 853. " Stein V. Dunne, 119 App. Div. 1, ' The complaint must aver plain- tiff's reciprocal promise, for this furnishes the only consideration. Smytli V. Greacen, 100 App. Div. 275, 91 N. Y. Supp. 450; Roper v. Clay, 690 18 Mo. 383; Buzzard v. Knapp, 12 How. Pr. (N. Y.) 504. And her readiness and willingness to fulfill the promise. Graham v. Martin, 64 Ind. 567. Breach of Promise to Marry 691 II. That the plaintiff, confiding in defendant's said prom- ise, has always since remained, and now is ready and willing to marry the defendant.* III. That defendant failed and refused to marry plaintiff on said day of , 19 , although plaintiff was ready and willing and offered to marry defendant. [Or, if no date of marriage was fixed:] III. That defendant has failed and refused to agree upon any date for such marriage, although more than a reasonable time has heretofore elapsed.^ IV. [// special damages are claimed, allege them, as: That by means of such promises so procured from plaintiff, and made to her by defendant, defendant has been enabled to and has seduced and debauched plaintiff by reason whereof plaintiff gave birth to a child;] ^ that plaintiff has been damaged dollars. Wherefore [etc., demand of judgmsni]. 105 N. Y. Supp. 1144, aff'd 190 N. Y. 524. This is commonly the tenor of the promise; for a promise to marry with- out specification of time of marriage, gives the party a reasonable time. If, however, the defendant's promise were in fact to marry on a set day, it should be so averred. So', also, if it were to marry on request. In the latter case a request must be averred and proved; unless the defendant has, by his own act, incapacitated himself from marrying, in which case it is unnecessary. Short v. Stone, 8 Q. B. 358, 50 Eng. Com. L. R. 356; Caines V. Smith, 15 Mees. & W. 189; Har- rison V. Cage, 1 Ld. Raym. 386; Mill- ward V. Littlewood, 1 Eng. L. & Eq. R. 408; and compare Lovelock v. Franklyn, 8 Q. B. 371, 60 Eng. Com. L. R. 371. So if the promise was to marry on a certain day named, the complaint need not aver a request for performance. Raymond v. Saucer, 84 Ind. 6; Graham v. Martin, 64 id. 557. And after the defendant has renounced his promise to marry the plaintiff, she is not obliged to request him to fulfill it before bringing suit, although the time fixed for perform- ance has not passed. Kurtz v. Frank, 76 Ind. 694, 40 Am. Rep. 275; Burtis V. Thompson, 42 N. Y. 246; Frost o. Knight, Law R. (7 Ex.) 111. * This is a material and necessary averment. Hook v. George, 108 Mass. 324; Graham v. Martin, 64 Ind. 567. * Except in the case of defendant's promise to marry on request, the ne- cessity of averring request is dis- pensed with. 1 Pars, on Contr. 544; Turner v. Baskin, 2 W. Law. M. 98; Haymond v. Saucer, 84 Ind. 6. Com- pare Smyth V. Greacen, 100 App. Div. 275, 91 N. Y. Supp. 450. An allega- tion of fraud and intent to deceive and injure the plaintiff, may. be struck out on motion. Leopold v. Poppenheimer, 3 Code R. 39. » Damages may be recovered in G92 Abbott's Forms of Pleading 639. Marriage with Another. fZ and II as in preceding form.] III. That the defendant afterwards married a certain other person/ to wit, one M. N., contrary to his said promise to the plaintiff. [Or, III. That, at the time of making said promise, the defendant represented to the plaintiff that he was unmarried, whereas, in fact, he was then married to another person, of which fact the plaintiff had no notice.] * IV. That plaintiff has suffered damage dollars. Wherefore [etc., demand of judgment]. these actions, not only for pecuniary loss, but also for suffering and injury to condition and prospects. Thorn w. Knapp, 42 N. Y. 474, 1 Pars, on Contr. 543, and cases cited; Id., note 1. Where, in an action by a female for a breach of promise to marry, it is alleged that the defendant's prom- ise to marry the plaintiff was made with a view to seduce her and then abandon her, and that the defendant, by means of the promise, has seduced the plaintiff, the seduction should be regarded as an aggravation of the breach of promise, authorizing the jury to give an increased verdict. Wells V. Padgett, 8 Barb. (N. Y.) 323; Kurtz v. Frank, 76 Ind. 594; Giese v. Schultz, 53 Wise. 463; Kniflen v. McConneU, 30 N. Y. 285. The right of action still rests wholly upon the contract of marriage and its breach. Dialer v. McCauley, 66 App. Div. 42, 73 N. Y. Supp. 270. Evidence of impaired health of the plaintiff is inadmissible, unless that be alleged in the complaint as special damage resulting from the breach. BedeUw. Powell, 13 Barb. (N. Y.) 183. Loss of time and expenses incurred in preparation for marriage are grounds of damage, directly inci- dental to the breach of promise, and not of special damage. Smith v. Sherman, 4 Gush. (Mass.) 408. ' An averment of marriage to an- other dispenses with the allegation of a request to marry, though the promise is so laid; and it is not neces- sary to aver that the other person is still living. Short v. Stone, 8 Q. B. 358, 4 Eng. Com. L. R. 356; Gaines V. Smith, 15 M. & W. 189. ' It is not necessary to allege that the defendant knew his representa- tions to be false. Blattmacher v. Saal, 29 Barb. (N. Y.) 22, 7 Abb. Pr. (N. Y.) 409; Leopold v. Poppeii- heimer, 1 N. Y. Gode Rep. 39. CHAPTER XXVII COMPLAINTS IN ACTIONS FOR DAMAGES FOR BREACH OF CON- TRACT FOR SALE OF PERSONAL PROPERTY I. Buyer against Seller. page 640. Gteneral form; against seller, for not delivering 694 641. The same, for delay in delivering 697 641a. The same, where seller offers to deliver goods not conforming with agreement 697 642. The same, allegation of defendant's delivery but plaintiff's subsequent refusal to accept 699 643. The same, for failure to deliver part 699 644. The same, under an agreement to deliver in installments .... 699 645. The same, under option accepted by plaintiff 700 646. The same, allegation of refusal to permit inspection 700 647. The same, alleging part payment when agreement was not in writing 701 648. Allegation of special damage for loss of profits under a sub- contract 702 649. Allegation of special damages because the goods cannot be obtained in market 703 650. Allegation of special damage; loss caused by inability to con- tinue manufacturing 704 651. Against seller of stock, for not delivering 704 652. Against seller, showing anticipatory refusal, excusing non- payment '. ., 705 653. For breach of agreement to repurchase 706 654. For breach of a promise by seller of good will, not to carry on rival trade in vicinity 707 II. Seller against Bdyek. 655. Against buyer, for refusing to receive and pay for goods, under agreement specifying both time and place of delivery 708 656. The same, where time but no place for delivery was agreed .... 711 657. The same, where the place, but no time of delivery was speci- fied in the agreement 711 658. The same, another form for allegation of seller's performance where buyer's obligation was to take within reasonable time 714 659. Against buyer who received goods for examination and refused to accept 714 660. Against buyer — allegation of plaintiff's performance under an agreement to deliver to buyer, at any time during specified period, at the option of the buyer 717 693 694 Abbott's Forms of Pleading PAGE 661. Against buyer — allegation of special damage — payment of . freight charge 717 662. Against buyer— alleggtion of anticipatory refusal to perform, excusing plaintiff's offer of performance 718 663. Against seller of "privilege" or "option" 719 664. Against buyer, under broker's contract, buyer to furnish cable credit 720 665. Against buyer, for not delivering note for goods bought 721 666. Goods sold at auction sale; for deficiency after resale at auc- tion 722 667. For breach of contract to redeliver goods, or to pay for them in a reasonable time 723 I. BUYER AGAINST SELLER. 640. General Form; Against Seller, for not Delivering. I. That on or about the day of , 19 , at , the plaintiff and the defendant entered into an agreement [in writing, which was subscribed by the defend- ant, or, by the agent of the defendant duly authorized thereto] ^ whereby it was mutually agreed between them ^ that the defendant should sell and deliver to the plaintiff at [or otherwise as per agreement], on or before the day of , 19 ,* [or, on demand, or, within a ' It is not necessary to allege facts bacco Co., 73 Hun, 87, 25 N. Y. showing that the Statute of Frauds Supp. 1026. was complied with; for the purposes The complaint need not set out the of the complaint those facts will be offer and acceptance from which it is presumed. Marston v. Swett, 66 claimed the agreement sprung, but N. Y. 206; Abb. Brief on PL, the pleader may allege the legal 2d ed., p. 327, § 158, and cases effect of the transaction as he sees it, cited. i. e., that on such a day the parties ^ If the complaint does not show a mutually agreed, etc. Grossman v. consideration passing to defendant Schenker, 206 N. Y. 466. As an in- at the time of the making of the stance of the peril of setting forth agreement, it must a,lkige the recip- the evidence of the agreement, see rocal promise of plaintiff to accept Moulton v. Kershaw (Wise), 18 N. and pay for, otherwise the agreement W. Rep. 172. will be void for want of mutuality, ' "On or about", a specified day Jackson v. Alpha Portland Cement means on such day or within a rea- Co., 122 App. Div. 347, 106 N. Y. sonable time thereafter. Schiff v. Supp. 1052; Rapalovitz v. Am. To- Winton Car Co., 90 Misc. 594, 153 N. Y. Supp. 961. Sales of Personal Property 695 reasonable time, or otherwise, according to the agreement] five hundred barrels of flour, and that the plaintiff should accept the same from the defendant and pay therefor the sum of dollars upon delivery thereof/ [Where time and place of delivery are fixed:] II. That on the day of , 19 , at , the plaintiff was ready, able and wilUng at the time and place appointed, and duly offered to the defendant, to accept and pay for said flour pursuant to the agreement, and requested the defendant to deliver the same; ^ and plaintiff has duly performed all the conditions on his part.^ [Where place of delivery was not fixed:] '' II. That at the time for the deUvery of said flour plaintiff was ready, able and willing, and duly offered to receive and ' Allege both plaintiff's and defend- ant's part of the agreement. See Cragin v. O'Connell, 50 App. Div. 339, 63 N. Y. Supp. 1071; Rapalowitz V. Am. Tobacco Co., supra. * Where by the terms of a contract the acts are to be concurrent, it is the duty of him who seeks to main- tain an action for its breach not only to be ready and tender performance upon his part (Makepeace v. Dill- town, etc., Co. 179 App. Div. 60), but he must demand performance from the other party. Vandegrif t v. Cowlea Engineering Co., 161 N. Y. 435. 'Such an allegation of having "duly performed" reaches conditi- tions precedent only; tender, request for defendant's performance, plain- tiff's readiness, etc., are conditions concurrent not precedent. See Ketchum v. Alexander, 168 App. Div. 38, 153 N. Y. Supp. 864. ' Where place of delivery is not fixed, delivery is to be made at the seller's place of business. N. Y. Pers. Prop. Law, § 124; Gross v. AjeUo, . 132 App. Div. 25, 116 N. Y. Supp. 380; Schiff v. Winton Car Co., 90 Misc. 594, 153 N. Y. Supp. 961. The plaintiff must aver an offer or tender of performance on the part -of the plaintiff. Lester v. Jewett, 11 N. Y. 453; Abb. Brief on PI., 2d ed., p. 356, and cases cited. And a complaint averring that the plain- tiff was ready to receive and pay for the goods, and requested the defend- ants to deliver, is not sufficient with- out an averment of an offer to pay on deUvery. Smith v. Wright, 1 Abb. Pr. (N. Y.) 243. But where the delivery is to be at a particular place, it is sufficient to aver a readi- ness at the place to receive and pay. Vail V. Rice, 5 N. Y. (1 Seld.) 155; Clark V. Dales, 20 Barb. (N. Y.) 42; and see Dunham u. Pettee, 8 N. Y. (4 Seld,) 508. Where goods were to be delivered on request, at a certain price, a decla- ration averring readiness to receive and to pay according to the terms of the sale, and that the defendant had notice of such readiness, but refused to deliver, was held sufficient, without any averment of request. Rawson v. Johnson, 1 East, 203; 1 Chit. PI. 327. 696 Abbott's Forms of Pleading pay for said flour in manner aforesaid at defendant's place of business, and demanded of defendant that he deliver the same. [Where goods were to be taken by a date specified:] That prior to the day of , 19 , plaintifif duly ordered said flour to be shipped as per instructions given to defendant in each respective order. [Where the particular time of delivery was not appointed:] II. That more than a reasonable time for the delivery of said flour has elapsed ; that the plaintiff has been at aU times ready, able and willing to receive said flour at the place appointed and pay for the same on delivery according to the agreement, of which the defendant had due notice; that plaintiff has demanded delivery of said flour of defendant, and on or about the day of , 19 , duly notified defendant that he required defendant to deliver said flour on or before the day of , 19 , which was a reasonable time within which to complete delivery;' that plaintiff has duly performed all the conditions on his part. III. That the defendant has neglected and refused to de- liver said flour, or any part thereof [or, barrels of said flourj to the damage of the plaintiff, dollars.^ [See Forms 648-650, for allegations of special damages.] [Whsre no market price exists: III. That there is no market price for said — goods — ; that plaintiff on or about the * See Spiritusfabriek Astra v. Sugar time and place of delivery. N. Y. Products Co., 176 App. Div. 829, Pers. Prop. Law, § 148; Sloan v. 163 N. Y. Supp. 516. McKane, 131 App. Div. 244, 115 Where time for performance is N. Y. Supp. 648 (shares of stock); indefinite, neither party can put the Saxe v. Penokee Lumber Co., 159 other in default without notice, giv- N. Y. 371; Marsh v. McPherson, ing the other a reasonable time speci- 105 U. S. 709. The vendee is under fied to complete preformance. Taylor no obligation to go into the market V. Goelet, 142 App. Div. 467, 126 N. and buy. Saxe v. Penokee Lumber Y. Supp. 1106, aft'd 208 N. Y. 253. Co., supra- ' The measure of damages where If the contract of sale fixes no price, the goods can be obtained in market, an action will not lie. Lambert v. is the difference between the contract Hays, 136 App. Div. 574, 121 N. Y. price and the market value at the Supp. 80. Sales of Personal Property (397 day of , 19 , purchased similar — goods — and necessarily paid therefor the sum of dollars in excess of the price at which defendant had agreed to sell as afore- said].'" Wherefore \etc., demand of judgment]. 641. The Same, for Delay in Delivering. [Action sustained in Chapman v. Fowler, 132 App. Div. 250, 116 N. Y. Supp. 962.] I. [Allege agreement, as in Form 64O.] II. That on [the day for delivery] plaintiff was ready and wiUing to accept and pay for said [goods], and duly offered to defendant so to do and demanded of defendant that he deliver said [goods] to plaintiff; and plaintiff then and there notified defendant that the market value of said [goods] was declining, and that damage would result to plaintiff from delay in delivering." III. That defendant failed to deliver said [goods] to plain- tiff until the day of , 19 ; '^ that the market value thereof on that day was dollars less than the market value on the day of 19 [the contract day]. IV. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 641a. The Same, Where Seller Offers Goods not Conform- ing with Agreement.'^ I. [Allege making of agreement as in Form 64O.] , II. That on or about the day of , 19 , defendant offered to deliver to plaintiff certain [goat skins] in '" Strohmeyer, etc., Co. v. Hartley goods by plaintiff does not result in Silk Mfg. Co., 130 App. Div. 102, a waiver or an estoppel. Case, supra. 114 N. Y. Supp. 287. " From complaint in Stein Co v. " Notice that damage would result Robertson, 167 N. Y. 101, where a from delay was considered in the case recovery for plaintiff was sustained, above cited as an ingredient of the but no question of pleading was di- cause of action. rectly raised. '* Subsequent , acceptance of the 698 Abbott's Forms of Pleading pretended compliance with his said agreement as herein- before alleged, and defendant claimed that said [skins] answered all requirements of and were in full comphance with the requirements of his said agreement. III. [Allege facts showing that the goods offered were not of the character required, as:] That said [goods] were not [follow- ing language of sale agreement] but were [stating actual char- acter and condition, adding if desirable] and were of much less value. IV. That plaintiff thereupon refused to receive said [goods] so offered, and so notified defendant. V. [Where sale agreement makes such provision:] That it was further provided in said agreement of sale that any question arising as to the quaUty of said [goods] should be determined by the selling brokers, and that their decision should be final and bindiug on both parties; that the selling brokers referred to in said agreement were J. K. and O. P., doing business as K. & P.; that after plaintiff's said refusal to receive said [goods], said selhng brokers examined the same, and duly determined that they were not of the kind, quality or character which the defendant had agreed to sell and deliver to plaintiff, and which plaintiff had agreed to pur- chase and receive from defendant, of aU of which defendant had due notice." VI. That plaintiff was and has been at all times ready and willing to receive the aforesaid [goods] which defendant agreed to sell and deliver to plaintiff, and to pay for the same according to the terms of said agreement, and has so notified defendant and has demanded from him delivery of said [goods], and plaintiff has duly performed all the conditions of said agreement on his part. VII. That defendant has refused and still refuses to de- liver to plaintiff said [goods] to the damage of plaintiff dollars. Wherefoee [etc., demand for judgment]. '■* In the precedent it was held that on the part of the brokers, their de- in the absence of fraud or collusion oision was conclusive. Sales of Personal Property 699 642. The Same, Allegation of Defendant's Delivery but Plaintiff's Subsequent Refusal to Accept.' ' I. [As in Farm 64O.] II. That on or about the day of , 19 , defendant deUvered to plaintiff 500 barrels of flour, in pre- tended compliance with his said agreement; that plaintiff thereupon examined the same, and ascertained that said flour was not of the kind which defendant had agreed to deUver, and immediately upon so ascertaining plaintiff duly notified defendant that he refused to accept said flour [and offered to return the same].'^ III. [Allege general damages as in Form 64O, and special damages as in Forms 648-650.] Wherefore [etc., demand for judgment]. 643. The Same, for Failure to Deliver Part. I. [As in Form 640.] II. That on or about the day of , 19 , the defendant duly delivered to the plaintiff [250] barrels of flour under said agreement, and plaintiff duly paid to de fendant therefor the sum of dollars; that defendant has failed to deliver the remainder of said flour. Ill and IV. [Allege plaintiff's readiness and defendant's default, and resulting damage as in Form 64O.] Wherefore [etc., demand of judgment]. 644. The Same, under an Agreement to Deliver in Install- ments.'^ I. [As in Form 64O except alleging the time and place 'of delivery by installments.] '* Under N. Y. Pers. Prop. Law, installments, the buyer may sue for §§ 129-131. See, also, Tompkins v. his entire damages, without waiting Lamb, 121 App. Div. 366, 106 N. Y. until the expiration of the term fixed Supp. 6, aff'd 195 N. Y. 518. for its completion. See Wolfert v " The buyer is under no obligation Caledonia Springs Ice Co., 195 N. Y to return the goods. N. Y. Pers. 118. Prop. Law, § 131. Only one action will lie, in which " Upon failure to deliver one of the full damages must be sought. Paktxs 700 Abbott's Forms of Pleading II. That defendant did not deliver to plaintiff the [goods] which under said agreement defendant had agreed to deHver at on the day of , 19 ; that plain- tiff was ready at said time and place and offered to receive said [goods] and to pay therefor according to said agreement, and demanded of defendant that he deUver the same, but defendant refused and neglected so to do. III. [Allege general damage as in Form 64O.] '* Wherefore [etc., demand of judgment]. 645. The Same, under Option Accepted by Plaintiff.'* I. That on or about the day of , 19 , at [and in consideration of dollars then paid by plaintiff to defendant] defendant gave to plaintiff an option imtil the day of > 19 , to purchase [state what, and the price, and the terms of delivery and pay- ment; adapt from Form 64O]. II. That thereafter and on or about the day of , 19 [and while said option remained un'wath- drawn] plaintiff duly notified defendant that he accepted the same, and agreed to piurchase said goods on the terms and conditions of said option as above set forth.^" Ill and IV. [Set forth defendant's breach, and damage, as in paragraphs II and III of Form 64O.] Wherefore [etc., demand for judgment]. 646. The Same, Allegation of Refusal to Pemiit Inspection. [Action sustained in Plumb v. Bridge, 128 App. Div. 651, 113 N. Y. Supp. 92.] '^ ^^ V. Hollingshead, 184 N. Y. 211; N. Y. Supp. 176. Expense incurred Nichols V. Scrantwn Steel Co., 137 id. in examining the condition of the 471; Roehm v. Horst, 178 U. S. 1. property does not furnish considerar •' For allegations of special dam- tion for the option so aa to preclude age, see Forms 648-650. its withdrawal. Id. " An option not founded on a con- ™ An allegation of acceptance is sideration may be withdrawn at any essential. Stokes v. Carpenter, 166 time before acceptance; this is so, App. Div. 441, 151 ,,.N. Y. Supp. even though the option is stated to 1000. be for a fixed time. Ganss v. Guffey ^' See, also, N. Y. Pera. Prop. Law, Petrol. Co., 126 App Div. 760, 110 § 128. Sales of Personal Property 701 That plaintiff had no opportunity to see the [goods] prior to [the day fixed for delivery]. That at the time and place of delivery plaintiff was ready and willing to accept and pay for the said [goods]; that plaintiff requested defendant to permit him to inspect the said [goods] for the purpose of determining whether they were in accord with said agree- ment, but defendant refused to permit any inspection whatever, and notified plaintiff that he must pay the pur- chase price therefor before being allowed to so inspect them. That because of such refusal by defendant, plaintiff de- clined to accept said [goods] and the same were retained by defendant. 647. Against Seller, Alleging Part Payment When Agree- ment was not in Writing. I. That on or about the d^y of , 19 , at , it was mutually agreed between the plaintiff and the defendant that the defendant should sell and deliver to the plaintiff at , and on or before the day of , 19 [very briefly designate the thing], and that the plaintiff should accept said [goods], and should pay to the defendant therefor at the rate of dollars per , amounting to dollars, payable as follows: dollars at the time of making said agreement, and the residue on the delivery of the [goods], as aforesaid. II. That the plaintiff then and there paid to the defendant the said sum of dollars, in pursuance of the agree- ment.^^ III. That the plaintiff was ready and willing, prior to and at the time and place aforesaid, to receive said goods and pay the balance therefor, and offered to defendant to pay said balance, and demanded that defendant deliver said goods; ^* To take the contract out of the the very time of the making of the operation of the Statute of Frauds, contract itself. Bissell v. Balcom, 40 the part payment must be made at Barb. (N. Y.) 98. 702 Abbott's Forms of Pleading but the said defendant has not deUvered the same or any part thereof; to plaintifT's damage dollars. ^^ Wherefore [etc., demand of judgment]. 648. Allegation of Special Damage for Loss of Profits under a Sub-contract.^* That such goods were and are not purchasable in market as defendant well knew; that, at the time of the making of the aforesaid agreement, one M. N. had agreed to pur- chase said goods of plaintiff, and to pay him therefor the sum of dollars; that defendant had notice of plain- tiff's said agreement with said M. N., and the price so agreed to be paid by him to plaintiff for said goods, and had agreed to supply said goods to plaintiff to enable him to complete his said agreement with said M. N.,^^ and knew that plain- tiff could not fulfill said agreement unless defendant delivered said goods to him. [Or, where the sub-contract was not made until afterward: that at the time of the making of the aforesaid agreement, the defendant knew that plaintiff already had orders for 2' The measure ot damage will in- as on a resale, but by receiving the elude the part payment. See Tomp- compensation under the contract, kind V. Lamb, 121 App. Div. 366, 106 Schlossberg v. Brody, 160 App. Div. N, Y. Supp. 6, aff'd 195 N. Y. 518. 161, 145 N. Y. Supp. 182. -■' This is special damage and must ^* If plaintiff merely alleges that be affirmatively pleaded. Stecker v. contracts were made on the faith of Weaver Goal, etc., Co., 116 App. defendant's agreement, defendant is Div. 772, 102 N. Y. Supp. 89, aff'd entitled to a bill of particulars giving 192 N. Y. 556. the names and addresses of the parties See, generally, as to when such who made the contracts. U. S. Paper • profits may be recovered, Atlas Port- Co. v. De Haven, 115 App/ Div. 403, land Cement Co. v. Hopper, 116 App. 100 N. Y. Supp. 796. Div. 445, 101 N. Y. Supp. 948; Saxet). Knowledge by defendant of the Penokee Lumber Co., 159 N. Y. 371; collateral contracts is essential. See Czarnikow, etc., Co. v. Baxter, 146 Braver v. Oceanic Steam Nav. Co., 66 App. Div. 81, 130 N. Y Supp. 617. App. Div. 605, 73 N. Y. Supp. 291; The rule requiring the pleading of Witherbee v. Meyer, 155 N. Y. 446. loss of profits as special damages has Or that plaintiff was buying for the no application where the damage di- contemplated purpose of resale. See rectly resulting consists of the profits Levison v. Oes, 98 Misc. 260, 162 N. that plaintiff would have made, not Y. Supp. 1043. Sales of Personal Property 703 said [salmon] at an advanced price and that he was pur- chasing the same and the same was sold and agreed to be delivered to him for the express purpose of enabling plaintiff to accept said orders and resell said [salmon] at such advanced price pending its delivery to plaintiff by defendant, and that said [salmon] was to be delivered by plaintiff on such resale when the same should be delivered to plaintiff under his contract with defendant; that defendant also knew, and the fact was, that defendant controlled all [salmon of the brands hereinbefore referred to], and that plaintiff could not pro- cure it elsewhere than from defendant, that in case of de- fendant's refusal to deliver said [salmon] to plaintiff as agreed plaintiff would be unable to make delivery under the said resale thereof and that plaintiff would then and thereby lose the profits which he would otherwise make on such resale.]^* That by reason of the premises plaintiff has been damaged doUars.^^ 649. Allegation of Special Damages because the Goods Cannot be Obtained in Market.^* That such goods were not at the times aforesaid, pur- chasable in market at [place of delivery], and could not be obtained by plaintiff prior to the day of , 19 ; that because of defendant's failure to de- liver said goods as aforesaid, and said delay in securing other goods of the same character [state nature of special loss re- sulting, as], plaintiff was unable to print and sell his said ^ Recovery of profits lost was al- 81, 112 N. Y. Supp. 477; Goldman v. lowed under these allegations in Delar Gainey, 67 App. Div. 330, 73 N. Y. field V. Armsby Co., 131 App. Div. Supp. 738. 572, 116 N. Y. Supp. 71. See, also, ^ See N. Y. Pers. Prop. Law, § 148; Czarnikow Co. v. Baxter, 146 App. also Parsons v. Sutton, 66 N. Y. 92, Div. 81, 130 N. Y. Supp. 617. and Brady v. Cassidy, 9 Misc. 107, 29 " If no proof is given of these facts N. Y. Supp. 45, aff'd 145 N. Y. 171, alleged as special damage, it may be from the rulings and opinions in which that the complaint must be amended cases the above is adapted, at the trial to permit a recovery of See Form 640, for allegation where general damages. See, on this point, no market price exists. Harrison v. Argyle Co., 128 App. Div. 704 Abbott's Forms of Pleading magazine, and lost the sale thereof for the month of from which he would have derived a profit of at least dollars, and the circulation thereof was and is im- paired, to his damage dollars. 660. Allegation of Special Damages: Loss Caused by In- ability to Continue Manufacturing.^' That by reason of defendant's said failure to deliver to plaintiff ^aid [regular weekly shipments of wire], plaintiff was unable to continue his manufacture of , and was compelled to stop the operations of his factory [and was unable to fill the orders of his customers], to his damage dollars. 651. Against Seller of Stock for not Delivering. I. That on or about the day of , 19 , at , plaintiff and defendant entered into an agree- ment [in writing, subscribed by the defendant — or, by the agent of the defendant, duly authorized thereto — ] whereby it was mutually agreed between them that the defendant should sell and deliver to the plaintiff at such time, within days thereafter, as the plaintiff should elect [or, that the defendant then sold and would at such time, within days thereafter, as the plaintiff should elect, de- liver to him] shares of the capital stock of the Company, and that the plaintiff should accept said stock within said days and pay him therefor dollars.'" ^' From NichoUs v. Am. Steel & plaintiff's reciprocal promise to ac- WireCo., 117App. Div.21, 102N. Y. cept. Jackson «. Alpha Portland Ce- Supp. 227, aff'd 191 N. Y. 554; plain- ment Co., 122 App. Div. 347, lOG tiff was allowed to recover for loss of N. Y. Supp. 1052; Rafalovitz v. Am. rental and interest on capital in- Tobacco Co., 73 Hun, 87, 25 N. Y. vested, the trial court excluding Supp. 1026. If the contract sued profits from business and plaintiff not upon was an option, the allegation complaining of the ruling. should be that on, etc., in considera- '" In order to show mutuality of tion of dollars paid to him by agreement the allegation should show plaintiff, the defendant agreed, etc. Sales of Personal Property 705 II. That the plamtiff duly performed all the conditions thereof on his part, and on or about the day of , 19 , at , duly tendered to the defend- ant said sum of dollars, and demanded of the defendant that he deliver said shares of stock to the plaintiff. III. That the defendant refused to deliver the same, to the damage of the plaintiff dollars. Wherefore [etc., demand. of judgment]. 652. Against Seller, Showing Anticipatory Refusal to Per- form, Excusing Non-performance. [Sustained in Clark v. Crandall, 27 Barb. (N. Y.) 73.] " I. {Allege making of contract, as in Form 640.] II. That prior to the time for the delivery of said flour by defendant according to the terms of said agreement, ^^ de- fendant gave notice to plaintiff that he, defendant, would not fulfill said agreement, [and repudiated the same] and would not deliver said flour or any part thereof;* that plaintiff relied upon said notice and did not provide the funds to pay for, nor make ready to receive, nor offer to receive, said flour, as he otherwise should have done.'' [And if a statement as to previous sale was untrue may also allege: II. As above, to *, continuing, and for the purpose of preventing plaintiff from being ready to receive and pay therefor, defendant falsely represented to plaintiff that he had sold said flour; that plaintiff relied upon such notice and representation, and did not, etc.] [Continue as in preceding forms.] Wherefore [etc., demand of judgment]. "^ See, also, Rubber Trading Co. v. Siegel v. Ward & Co., 177 App. Div. Manh. Rubber Mfg. Co., 164 App. 487, 164 N". Y. Supp. 252. Div. 477, 150 N. Y. Supp. 17; Shaw " A refusal to complete except V. Republic Life Ins. Co., 69 N. Y. upon new terms not included in the 286. original contract is equivalent to a '^ In the absence of any allegation refusal to complete at all. Rubber as to the time of refusal it will be in- Trading Co. v. Manh. Rubber Mfg. ferred that it was at the time for per- Co., 164 App. Div. 477, 150 N. Y. formance, and not before that time. Supp. 17. 706 Abbott's Forms of Pleading 653. For Breach of Agreement to Repurchase. [Sustained in Sims v. Farson, 157 App. Div. 38, 141 N. Y. Supp. 673.] '* I. That at the times hereinafter mentioned the defend- ants were co-partners, conducting a banking and brokerage business.'^ II. That on the day of , 19 , a contract in writing was entered into between the plaintiff and de- fendants, by the terms of which the plaintiff agreed to pur- chase, and the defendants to sell bonds of {description] at the price of dollars, the par value thereof and ac- crued interest each. III. That by the provisions of said contract, and in con- sideration of plaintiff's purchase of said bonds of defendants, the defendants agreed to repurchase said bonds from plain- tiff at the said selling price [if the agreement was not absolute, state conditions, as:] if the said bonds should fail to fulfill the requirements thereof. IV. That the said bonds were thereafter delivered, and the plaintiff paid the agreed price therefor. V. [Show that condition for repurchase occurred, as:] That the bonds were coupon bonds, containing coupons attached thereto, which by the terms of the bonds were payable at fixed dates; that one of ^ these coupons on each of the bonds became due and payable on the day of , 19 ; that plaintiff caused these coupons to be presented at one of the places designated in the bonds, duly demanding payment thereof, but that such payment was refused, and that no payment of such coupons has been made; that the plaintiff on the day of , 19 , was in- formed by defendants that the coupons would not be paid '* The complaint was held good '* If a broker acts as agent for a against demurrer, although judgment disclosed principal, his own agree- for specific performance was de- ment to repurchase if the purchaser manded. See, also, form sustained in is dissatisfied is void unless in writing. Lynch v. Murphy, '81 Misc. 180, 142 Morse v. Douglas, 112 App. Div. 798, N. Y. Supp. 373. 99 N. Y. Supp. 392. Sales of Personal Property 707 owing to a failure to collect a sufficient tax; that by reason of such failure to provide for the payment of the said cou- pons said bonds have failed to fulfill the requirements of such bonds. VI. That plaintiff thereafter and on the day of , 19 , duly tendered the bonds to the defendants^" and demanded that they repurchase the same at the pur- chase price thereof, namely, and accrued interest thereon, but that defendants refused so to do, and ever since have failed to repurchase said bonds. ^^ Vir. That the plaintiff was then, and is now, prepared to deliver said bonds upon the payment of the purchase price with accrued interest; that plaintiff has duly performed all of the conditions and acts required by said contract to be performed. VIII. Upon information and belief, that said bonds have no market and are unsalable and of no value. Wherefore [etc., demand of judgment]. 654. For Breach of a Promise by Seller of Good Will, not to Carry on Rival Trade in Vicinity.^* I. That heretofore, and for years prior to the day of , 19 , the defendant carried on the business of , at ; that on or about the said day, in consideration that the plaintiff would purchase from him his store and goods, and the good will of the said business, for the sum of dollars, the defendant " Tender must be alleged, and is '* Since such a contract is legal only not covered by the allegation of due where the restriction or limitation is performance of conditions precedent a reasonable one, the exact extent under § 533 of the Code. Ketchum thereof ought to appear on the face ot V. Alexander, 168 App. Div. 38, 153 the complaint. The inability to as- N. Y. Supp. 864. certain the damage, as well as the " If the agreement to repurchase avoidance of multiplicity of actions, required notice, it must be alleged makes the most available remedy an and shown to have been properly action to obtain an injunction with given in exaot compliance with re- past damages. See Form under quirement. Baird v. Hagen, 143 Chapter LXVII, Injunction. App. Div. 679, 128 N. Y. Supp. 217. 708 Abbott's Forms of Pleading agreed with the plaintiff that he would not at any time thereafter, by himself, or partner, or agent, or otherwise, either directly or indirectly, set up or carry on the said busi- ness of a , at , or at any other place within said town of M. [or, within miles from,'' etc.]. II. That the plaintiff accordingly purchased from the de- fendant his said store, and goods, and good will, for the price and at the terms aforesaid, and paid said sum of dollars therefor. III. That the plaintiff duly performed all the conditions of said agreement on his part. IV. That the defendant, in violation of his said agree- ment, afterwards, to wit, on or about the day of ,19 , set up and thereafter, and until the com- mencement of this action, has carried on the said business ''" of , at , to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. II. SELLER AGAINST BUYER 665. Against Buyer, for Refusing to Receive and Pay for goods under Agreement Specifying both Time and Place of Delivery. I. That on or about the day of , 19 , at , plaintiff and defendant entered into an agreement [in writing subscribed by the defendant, or, by the agent of the defendant, duly authorized thereto]," of which the following is a copy: [copy of the contract; or, whereby, etc., alleging its effect, as in Form 6Jfl; or, refer to and annex a copy]. '* The distance, under such an ject-raatter of such business, to be agreement, is to be measured on a furnished from a store outside the horizontal plane, i. e., "as the crow district. Patterson v. Glassmire, 166 flies," and not by the nearest prac- Pa. St. 230. ticable mode of access. Dugan v. *' It is not necessary to allege a Walker, 1 Johns. (N. Y.) 446. writing in order that the complaint ^ Such a covenant is broken by the may be sufficient as against demurrer, covenantor procuring orders by sam- Marston v. Swett, 66 N. Y. 206. pies for goods constituting the sub- Sales of Personal Property 709 [In a proper case: That thereafter said agreement was modified by providing that the — goods — should be delivered by plaintiflf at on the day of , 19 .]''- II. That the plaintiff duly performed all the conditions of said contract on his part, and was, on the day of , 19 , [the day on which delivery was to be made], ready and willing to deliver the [goods] therein mentioned,"'^ and on said day, at ^ [the place where delivery was to he made], gave defendant due opportunity for an inspection," and duly tendered said goods to the defendant, and de- manded that he accept and pay for the same.^^ III. That the defendant refused to accept said goods or any part thereof, [on the specific groimd that — state] *'' or to pay for them pursuant to his agreement,''* to the dani- age of the plaintiff dollars.^' [See succeeding forms *^ Such a modification should be pleaded. See Gen. El. Co. v. Nat. Contr. Co., 178 N. Y. 369. " In view of some decisions to that effect, it may be safer for plaintiff to allege his readiness to deliver, and his tender of, goods of the description given in the agreement of sale, rather than the " said " goods. Schurman v. Sayres, 2 Ky. Law Rep. 229; Neal v. Showalter, 5 Ind. App. 147, 31 N. E. Rep. 848. ** Intern. Money Co. v. Southern Co., 93 App. Div. 309, 87 N. Y. Supp. 881. " This allegation of opportunity for inspection has not been generally included, but seems proper and a part of the seller's affirmative case. See Druckleib v. Univ. Tobacco Co., 106 App. Div. 470, 94 N. Y. Supp. 777; N. Y. Pers. Prop. Law, § 128. It is probably involved, however, in the allegation that he "duly ten- dered" delivery. " The agreements in a contract of this character are mutual and de- pendent, performance by plaintiff is the consideration of defendant's agreement; it is, therefore, necessary for plaintiff seller to allege a tender to defendant, and a demand that defendant perform. Vandegrift v. Cowles Engineering Co., 161 N. Y. 435; Sec. Title, etc., Co. v. Stewart, 154 App. Div. 434, 139 N. Y. Supp. 74. An offer in the pleadings to per- form is not enough. Delaware Trust Co. V. Calm, 195 N. Y. 231. " If the defendant's rejection is placed on a specific ground, formally stated, this will effect a waiver of all other objections. Littlejohn v. Shaw, 159 N. Y. 188; Hess v. Kaufherr, 128 App. Div. 526, 112 N. Y. Supp. 832; Thompson v. Easton, 73 App. Div. 114, 76 N. Y. Supp. 567. ^ It was held in Mills v. Gould, 1 Abb. N. C. (N. Y.) 93, that where the agreement was for payment on deliv- ery, an averment of refusal to accept did not show a refusal to pay, and that it was necessary to aver both facts. " A general allegation of damage is 710 Abbott's Forms of Pleading for allegations . of plaintiff's course in liquidation of his dam- ages.] *" Wherefobe [etc., demand of judgment]. sufficient at the trial to permit proof of such damages as were legally pre- sumable consequences of the breach. Abb. Brief on PI., p. 1397, and cases cited. The complaint need not be made more definite and certain by showing plaintiff's choice of method of Uquidating his damages. Fried- man V. Denousky, 122 App. Div. 258, 106 N. Y. Supp. 780. But a bill of particulars thereof may be ordered served on defendant's application. Duryea Co. v. Rayner, 11 Misc. 294, 32 N. Y. Supp. 247. The seller of personal property, after tender of delivery and buyer's refusal to accept, has a choice of three methods in liquidation of his dam- ages: (1) He may store the property for the buyer and sue for the purchase price; or, (2) he may sell the property as agent for the buyer and recover any deficiency resulting; or, (3) he may keep the property as his own and recover the difference between the contract price and the market price at the time and place of de- livery. These remedies apply even to such intangible or complex property as a share in a partnership. Van Brocklen V. Smeallie, 140 N. Y. 70, 35 N. E. Rep. 415, citing Hayden v. Demets, 53 N. Y. 426; Dunstan v. McAndrew, 44 id. 72; Mason v. Decker, 72 id. 595; N. Y. Pers. Prop. Law, §§ 132-145. There are several considerations to be weighed by the attorney in advis- ing his client which of these remedies to pursue. Interest is recoverable if either (1) or (2) is followed, but if course (3) is taken no interest will be recoverable without proof of a well-established market value. See Gray v. Central R. R. of N. J., 157 N. Y. 483. (1) If the seller sues for the pur- chase price (Gould v. Healy, 206 N.Y.423); He may elect this remedy even though the goods are perishable; he is not bound to look out for the buyer's interest and resell them. Hunter v. Wetsell, 84 N. Y. 549. In this action he can recover rea- sonable charges for the care and cus- tody of the goods. N. Y. Pers. Prop. Law, § 132. If the seller elects this remedy, he is bound to deUver the goods when- ever they are demanded, upon pay- ment of the judgment. Hayden v. Demets, 53 N. Y. 426; Pacif. Coast Borax Co. v. Waring, 128 App. Div. 66, 112 N. Y. Supp. 458. (2) If the seller sells the property as the buyer's agent and sues for any deficiency — ■ The sale need not be at auction, unless that is the customary method of selling the property in question. N. Y. Pers. Prop. Law, § 141; Van Brocklen v. SmeaUie, supra. Whether or not the sale is at auction, notice to the defaulting buyer of the time and place of sale is unnecessary. N. Y. '" That plaintiff sold the goods, see Forms 657 and 659; at auction, see Form 666. See notes to these forms. If there is no allegation that the goods were disposed of, an inference will arise that they were retained by the seller. Belle of Bourbon Co. v. Leffler, 87 App. Div. 302, 84 N. Y. Supp. 385. Sales of Personal Property 711 656. The Same, where the Time, but no Place for Delivery, was Agreed. I. [As in preceding form.] II. That on [the time specified] plaintiff was ready and willing to deliver said [goods] to the defendant at plaintiff's place of business, and duly notified defendant thereof and that said [goods] were subject to defendant's inspection, and duly demanded of defendant that he accept the same and pay therefor." 657. The Same, where the Place, but not the Time of Delivery was Specified in the Agreement. [Complaint in Pope v. Terre Haute, etc., Co., 107 N. Y. 61, corrected to meet ruling. 52 Pers. Prop. Law, § 141; Pollen v. Le Roy, 30 N. Y. 556; all that the buyer can require is that the seller shall exercise reasonable care and judg- ment, be diligent to obtain the best price possible for the goods, and that the sale shall be within a reasonable time. Id., § 141; Sherwood v. Rib- bons, 6 N. Y. Wkly. Dig. 231. The sale need not be in the name of the buyer (Smith v. Pettee, 70 N. Y. 13), and if it is at auction, the buyer will not be deemed injured by the fact that the seller bought in the property by bidding higher than any one else. Ackerman v. Rubens, 167 N. Y. 405; Moore v. Potter, 155 id. 481. Al- though the seller sues for the pur- chase price, less the amount received on the sale, the action is for damages for refusal to accept, and the Statute of Frauds must be satisfied. Brackett Co. V. Komblum, 71 Misc. 123, 127 N. Y. Supp. 1078. In this action the seller may re- cover any expenses incurred in keep- ing the property. McEachron v. Randies, 34 Barb. (N. Y.) 301, in- cluding expense of insuring it. Lewis V. Greider, 51 N. Y. 231. (3) Where the seller keeps the goods and sues for the difference in price — He may dehver the same goods to other parties on contracts made prior to that with the buyer, and the price received on such contracts is no evi- dence of the market value of the goods. Cauda v. Wick, 100 N. Y. 127. Whichever remedy the seller elects to pursue, his election once made binds him. Having adopted one rem- edy, he cannot afterwards recede from the position taken and pursue a different remedy. Bradford v. Crocker, 60 N. Y. 627; Dreyfuss v. Foster, supra. '^ That such facts will estabUsh due offer of performance on plaintiff's part, see Gross v. Ajello, 132 App. Div. 25, 116 N. Y. Supp. 380; Bliss Co. V. U. S. Incandescent Gas Light Co., 149 N. Y. 300. If no place of delivery is specified, it is the seller's place of business. See N. Y. Pers. Prop. Law, § 124. *- The court's criticism of this 712 Abbott's Forms of Pleading [/ and II alleged plaintiff's co-partnership and defendant's corporate capacity. See Forms 94 and 44-] III. That heretofore, and on or about the day of , 19 , at the city of New York, plaintiffs sold to said defendant, and defendant purchased of plaintiffs [three hundred tons No. 1 Calder iron], at and for the price and sum of [twenty-nine dollars per ton, cash on deUvery], to be delivered in bond at New Orleans, Louisiana, within a reasonable time thereafter. ^^'' [IV. That said iron was and is Scotch iron, and has to be imported from Scotland, and that said sale was made sub- ject to the ocean risks. That said sale was made through M. & C, brokers, doing business as such in St. Louis; that defendant well knew that said M. & C. were brokers, not merchants, and were selling said iron as brokers. V. That said defendant, knowing that said iron was for sale, made an offer for it, and these plaintiffs accepted said offer in the city of New York. VI. That after the terms of said sale had been fixed, said brokers made and signed a note or memorandum in writing of said sale usually known as a broker's "bought and sold note" giving and containing all the material facts of said purchase and sale.] ^' complaint was that it failed to allege And the burden is on plaintiff to that the offer to deliver was vnthin a allege and prove compliance in such reasonable time, and thus failed to particular. Eppens, etc., Co. v. show a timely offer of performance, Littlejohn, 164 N. Y. 187; Pope v. under which situation only were the Terre Haute, etc., Co., 107 id. 61. defendants bound to accept and pay. '^^ This allegation of the time for It is not necessary to the validity delivery is but the statement of the of a written contract of sale under the implied requirement; it is not essen- Statute of Frauds that the parties tial, therefore, although the sub- thereto should make and express in sequent allegation of offer to deliver writing any agreement for any place depends for its sufficiency on the or time for the delivery of the goods. allegation that it was made within a In such case the law will infer that de- reasonable time, livery is to be made within a reason- 5' The allegations contained in IV, able time at the customer's place. V and VI are of doubtful necessity or Dunn V. McLintock, 64 Mo. App. 193. materiality in the pleading. Sales of Personal Property 713 VII. That these plaintiifs duly performed all the con- ditions on their part. That the said iron arrived in New Orleans on or about the day of , 19 , and was there placed in bond. That on or about the day of , 19 , which was within a reasonable time after the making of said agreement, plaintiffs duly notified said defendant of the arrival of said iron, and duly tendered delivery ^* thereof to the defendant and demanded that defendant accept the same and make payment therefor according to the terms of said contract on or before the day of , 19 , which was a reasonable time thereafter within which to do so.^" VIII. [If such fs the fact, allege:] ^^ That said defendant positively refused to receive said iron or any part of it, and positively refused to pay for the same, or to perform its said agreement of purchase, or any part of it, on the ground [state].^'' IX. That thereupon the plaintiffs duly notified said de- fendant that they should sell said iron for its account and risk, and specified the time and place of such sale.^' That plaintiffs did, pursuant to such notice, and on or about the day of , 19 , sell said iron for dollars per ton, in bond in New Orleans. " An offer of delivery in the com- ages, the statute seems to require plaint is insufficient; tender of deliv- the giving to the buyer of a reason- ery and demand of defendant that able time to complete. See N. Y. he perform must be alleged. Dela- Pers. Prop. Law, § 132. ware Trust Co. v. Colm, 195 N. Y. Whether the time given to defend- 231. ant to fiilfiU his contract was reason- 5* When an executory contract able may be a question of fact for leaves indefinite the time of per- the jury. Gourd v. Healy, 206 N. Y. formance (or when fixed therein has 423. been subsequently waived by the See next form for another prec- parties) neither party can thereafter edent. rescind without notice to the other " If a repudiation or breach of the requiring performance within a rea- entire contract can be shown, the Bonable time to be specified in the seller has an election of the various notice, or that the contract will be remedies enumerated by the statute. rescinded. Taylor v. Goelet, 208 N. Y. Pers. Prop. Law, §§ 132-4. N. Y. 253. " See note 47 to Form 655. If the action is brought for dam- ^ See note 49 to Form 655. 714 Abbott's Forms of Pleading X. That the total amount realized upon the resale of said iron was dollars, which was the best price that could be obtained for said iron at that time. That the necessary expense of moving, storing and protecting said iron, and for the resale of the same, was dollars, which these plaintiffs were compelled to and did pay. XI. That by reason of the premises plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand of judgment]. 668. Another Form; Allegation of Seller's Performance, where Buyer's Obligation is to Take Within a Reason- able Time. That plaintiff has at all times since the making of said agreement been able, willing and ready to deliver the [stock] pursuant thereto, and at divers times has tendered the same to defendant and demanded of him that he accept and pay therefor as in said contract provided; that a reasonable time for performance of said agreement on the part of defendant has long since elapsed, and had elapsed prior to said tenders and demands by plaintiff, but defendant has wholly neg- lected and refused to receive said [stock]-and pay therefor. ^^ 659. Against Buyer, who Received Goods for Examination and Refused to Accept. [Complaint in Albany, etc., Co. v. Lundberg, 121 U. S. 451.] [/ and II alleged plaintiff to be an alien, and defendant a corporation. See Forms 84 and 44-] III. That on or about the day of , 19 , the plaintiff, by an instrimient in writing, duly signed by him and by the defendant, agreed to sell to the defendant, and the defendant agreed to purchase from the plaintiff, certain goods, wares and merchandise described in said contract, which, at the prices then and there agreed upon ^ From Cragin v. O'Connell, 50 ceding form, and notes to paragraph App. Div. 339, 63 N. Y. Supp. 1071, VII. aff'd 169 N. Y. 573. See, also, pre- Sales of Personal Property 715 by and between the parties, amounted, in the aggregate, to the sum of dollars, and which amount the de- fendant then and there agreed to pay, according to the terms of said contract, all of which will, by reference to the said agreement, a copy of which, marked "A," is hereto annexed and made part of this complaint, more fully and at large appear. [The copy of contract annexed was as follows:] "Boston, , 19 . "I, Gustaf Lundberg, agent for N. M. Hoglund's Sons & Co., of Stockholm, agree to sell, and we, Albany and Rens- selaer Iron & Steel Co., Troy, N. Y., agree to buy the fol- lowing Swedish charcoal grey pig iron, viz.: 500 tons of brand nbgph, at a price forty-eight ($48) dollars, American gold, per ton of 2,240 lbs., delivered on wharf. New York, duty paid. Payment in gold in Boston [or] New York funds within 30 days from date of ship's entry at custom house. Shipment from Sweden [during the season], say May next, or sooner, if possible. The above quantity hereby con- tracted for to be subject to such reduction as may be neces- sitated by natural obstacles and unavoidable accidents. The seller not accountable for accidents or delays at sea. Signed in duplicate. "Accepted: Gustaf Lundberg, "Accepted: Albany & Rensselaer Iron & Steel Co. "S. E. M., Treasurer." IV. That thereafter, and on the day of , 19 , the plaintiff delivered to the defendant, in fulfillment of the contract aforesaid, marked "A," four hundred and ninety-eight tons seven hundred weight two jijuarters and sixteen pounds of Swedish charcoal grey pig iron, of the brand nbgph, on the wharf in the city of New York, duty paid. That the said iron had been shipped from Sweden in May, 19 , which was as early a time of shipment as the plaintiff was able to ship that amount and quality and brand of iron. That the defendant received the same without objection, on the ground that the amount thereof was 716 Abbott's Forms of Pleading slightly less than the amount of five hundred tons men- tioned in said contract, and caused the same to be trans- ported to Troy, in New York, and examined the same there, and then and there refused to accept or pay for the same, on the ground that the same was not of the quality and description called for by said contract.*" That upon the said delivery of said goods plaintiff duly rendered his bill for the same and demanded that the defendant should pay for the same thirty days after the delivery aforesaid, which bill the defendant refused to pay. V. That the plaintiff, upon such refusal, duly notified the defendant that he would proceed to sell the said iron on account of the defendant, and would hold the defendant responsible for any loss arising upon the said resale. That after the said refusal and notice, and at various times during the year 19 and down to and including the day of , 19 , the plaintiff, in good faith and with due diligence, sold the said goods for the account of the defend- ant for the best price that could then and there be obtained, to wit, the sum of dollars, amounting, together with interest on sales from dates thereof to said , 19 , to the sum of dollars, leaving a balance due to the plaintiff from the defendant of dollars, no part of which has been paid to the plaintiff. VI. That the plaintiff paid, laid out and expended for the defendant on such resale as and for the necessary and reasonable expenses upon the same, the sum of dollars, as will more fully appear from the account thereof, annexed hereto and marked "C," by reason whereof the defendant became justly indebted unto the plaintiff in said sum in addition to the balance aforesaid, amounting to- gether to the sum of dollars, no part of which has been paid to the plaintiff. Whekefore [etc., demand of judgment]. ™ A formal statement of the ground specified. Liittlejohn v. Shaw, 159 of objection waives all others not N. Y. 188. Sales of Personal Property 717 660. Against Buyer, — Allegation of Plaintiff's Performance, under an Agreement to Deliver to Buyer at any Time during Specified Period, as directed by the Buyer."' That during all of said period, to wit [specifying the entire time], plaintiff [had the said [goods] in his possession ready for delivery under said agreement, and] was at all times ready, able and willing to deliver the same upon defendant's direction, and plaintiff within said dates duly notified de- fendant thereof and requested that defendant take said [goods] within said period, and give plaintiff the necessary shipping directions therefor; that the defendant did not at any time notify plaintiff to deliver the same, or any por- tion thereof, and refused and neglected to accept said [goods] and pay therefor. That on or about the day of , 19 , and prior to the expiration of the time within which defendant had agreed to order the goods de- livered to him, plaintiff duly tendered to defendant delivery of said goods.^^ 661. Against Buyer,— Allegation of Special Damage, — Pajnnent of Freight Charge.^' That after the plaintiff had demanded and been refused "' Assuming that the goods were that tender of performance on the of such a character that it was not seller's part with demand of per- necessary for plaintiff to make a formance by the buyer were essential, physical tender, the facts here alleged Del. Trust Co. v. Calm, 195 N. Y. 231. show the defendant's default. Gor- "^ Tender of performance will be don Malting Co. v. Bartils Brewing necessary unless there was a waiver Co., 206 N. Y. 528; Posey v. Seales, by the defendant. Riegal Sack Co. v. 55 Ind. 282. See, also, Brit. Alum. Tidewater Portl. Cem. Co., 95 Misc. Co. V. Trefts, 163 App. Div. 184, 148 202,-158 N. Y. Supp. 954. Form N. Y. Supp. 144, where under an No. 662 is a precedent for an allega- agreement construed by a majority tion of waiver, of the court to require the buyer's '^ From complaint in Albany, etc., acceptance of delivery at the last Co. v. Lundberg, 121 U. S. 451. date specified, it was held that a Under the terms of sale, delivery was tender of delivery by plaintiff was to be made on wharf in New York, necessary. It was alleged in the complaint that Where defendant's agreement was the defendant had caused the iron to buy at any time within a specified to be transported to Troy for exam- period, at request of the seller, held ination, and then refused to accept 718 Abbott's Forms of Pleading payment for the iron delivered to the defendant, and after the plaintiff had given notice to the defendant that he would proceed to sell the same for the account of the defendant, the defendant refused to give up the said iron, except on the payment by the plaintiff of dollars, the amount of the freight from New York to Troy, paid by the defendant, and which amount defendant demanded from plaintiff, al- though by the terms of the contract defendant was bound to pay said freight. That plaintiff thereupon, in order to obtain the, said iron and make delivery thereof to the several purchasers upon such resale, was compelled to, and did on or about the day of , 19 , pay to the defendant the amount so demanded, which amount still remains due and owing from said defendant to said plaintiff; but the defendant, although thereto requested, has not paid the same, nor any part thereof. 662. Against Buyer, — ^Allegation of Anticipatory Refusal to Perform Excusing Plaintiff's Offer of Performance.^^ That prior to the time appointed for the delivery of said [goods], and on or about the day of , 19 ,*^ the defendant notified the plaintiff that he would not accept said [goods] or pay therefor, or carry out the terms' of said agreement upon his part; that plaintiff was ready and wilUng to perform the said agreement on his part, and would have delivered said [goods] to defendant according to the terms of their said agreement but for defendant's said refusal. [Or, that plaintiff would have been ready to perform had he not been prevented from so doing by defendant's said refusal.]^® [// no dates for delivery are fixed, hut delivery is to he made or pay therefor. See complaint given '* It must aflBrmatively appear that in Form 659. the notice was given before the time '* Abb. Brief on PI., 2d ed., p. 374, for performance had arrived. Hilton, and cases cited; Davis v. True, 89 etc., Co. v. Sizer & Co., 137 App. App. Div. 319, 85 N. Y. Supp. 843; Div. 661, 122 N. Y. Supp. 306. Stokes V. Mackay, 147 N. Y. 223; " Sufficient, Clark v. Crandall, 27 Shaw V. Republic Life Ins. Co., 69 Barb. (N. Y.) 73. N. Y. 286. Sales of Personal Property 719 between certain periods, or prior to a certain date, and in quan- tities as ordered, allege instead of above: That plaintiff duly performed all the .conditions of said agreement on its part to be performed — and if a portion of the goods was delivered, except the furnishing, sale and delivery of the hereinafter mentioned, and furnished to the defendant under said agreement and as ordered by it, of the said , which were accepted and paid for by the defendant — but the defendant, prior to the day of , 19 , cancelled all outstanding orders theretofore given and notified the plaintiff that it would not order or accept from the plaintiff the said goods — or, the remaining — or pay therefor, and neglected and refused to order, accept or pay for the same. That plaintiff was at all times ready and willing to perform the said agree- ment on its part with respect to furnishing, selling and de- livering the said goods, and to furnish, sell and deliver the same in accordance^ with the terms of said agreement, and would have furnished, sold and deUvered said goods to de- fendant according to the terms of the said agreement, but for defendant's aforesaid cancellation, notification, neglect and refusal.] ^^ That thereafter and on or about the day of ,19 , plaintiff notified defendant that he elected to treat said agreement as abandoned.*' 663. Against Seller of " Privilege " or " Option." [Adapted from Berry v. Kowalsky, 95 Cal. 134.] I. That on or about the day of , 19 , at , plaintiff paid to defendant the sum of dollars for the right and privilege of delivering to defendant tons of wheat, at any time within [30] days there- " Sustained, as sufficient to excuse " Such a notice seems essential, plaintiil's tender of performance, in See Rubber Trading Co. v. Man- Riegal Sack Co. v. Tidewater Portl. hattan Rubber Mfg. Co., 221 N. Y. Cement Co., 95 Misc. 202, 158 N. Y. 120, applying § 146 of the Pers. Supp. 954. .Property Law relating to sales. 720 Abbott's Forms of Pleading after, at the rate of dollars per cental. That said contract was made in the name of M. N. as agent of plaintiff for the benefit of plaintiff, and plaintiff was and still is the real party in interest. - II. That said plaintiff, on or about the day of ,19 , at said , at the office of said de- fendant, duly tendered to defendant the delivery of said tons of wheat, and duly performed all the condi- tions on his part under said contract, and then and there demanded from said defendant that he accept said wheat, and pay plaintiff the sum of dollars as the purchase price of said wheat, according to said contract; that said defendant refused to accept said wheat or to pay therefor. That thereafter, and on or about the day of , 19 , plaintiff sold [etc., as in preceding forms]. III. That said plaintiff made said contract with said defendant in good faith, for the purpose of deUvering said wheat to said defendant, and had said wheat in warehouse at said , for the purpose of delivering the same under said contract to said defendant. IV. That plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 664. Against Buyer, tinder Broker's Contract, Buyer to Furnish Cable Credit. I. That on or about the day of , 19 , at the city of , the plaintiff entered into an agree- ment, in writing, by the hands of J. K., a broker duly au- thorized to make the same, both on behalf of said plaintiff and of the said defendant, of which the following is a copy: , 19 . Sold for account of A. B., To M. N. bags prepared Bahia cocoa, at per cwt.; C. F. & I., by steamer to ' , buyer to furnish cable credit or to pay bankers' commission. J. K., Broker. Sales of Personal Property 721 II. That the~meaning of said letters "C. F. & I." was "to include cost, freight and insurance." III. That on the day of , 19 , which was within a reasonable time after the making of said agree- ment, said plaintiff shipped to the defendant said bags of prepared Bahia cocoa, amoimting to pounds, by steamer to , and immediately advised the de- fendant of such shipment, and plaintiff duly performed all the conditions of said agreement on his part. IV. That the said cocoa duly arrived at , and delivery thereof was thereupon duly tendered to defendant, but the defendant refused to receive the same or to pay therefor, or to furnish said cable credit, or to pay bankers' commission, to the plaintiff's damage dollars.^' Wherefore [etc., demand of judgment]. 665. Against Buyer, for not Delivering Note for Goods Bought.'" I. That on or about the day of , 19 , at , plaintiff sold and deUvered to the defendant [briefly specify the goods], of the value of dollars. II. That the defendant then and there promised to give the plaintiff therefor his negotiable promissory note on that day [or, on the , day of , 19 , or, on demand, or, within a reasonable tim^ thereafter], dated that day [or, dated on the day of , 19 ], for the said sum of dollars, payable in months from said date. ™ See note 49 to Form 655. its equity power over its own judg- '" Where goods are sold on credit, ment, postpone the collection of the with an agreement that a specified judgment until the credit expires, or security should be given, and the may vacate it, if the security agreed purchaser afterwards fails to give on is given. And where in such case the security, it is held that the pur- the purchaser is a non-resident, the chaser is liable to be sued as soon as plaintiff may have an attachment his agreement to give security has against his property, as a provisional been broken. If in such case judg- remedy under the Code. Ward v. jnent is obtained before the'credit is Begg, 18 Barb. (N. Y.) 139. expired, the court may, by virtue of 722 Abbott's Forms of Pleading III. That [on the day of , 19 ,] the plaintiff duly demanded such note from the defendant, but the defendant refused [or, that a reasonable time for the delivery of such note has elapsed before the commencement of this action, yet the defendant has neglected and refused] to deliver such note, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 666. Goods Sold at Auction Sale; For Deficiency after Resale by Auction. I. That on or about the day of , 19 , at , the plaintiff sold to the defendant and the de- fendant purchased of plaintiff, at auction, [briefly designate ■ the goods], for the sum of • dollars, to be delivered to defendant at the place of auction, upon his, payment of said sum of dollars, and subject to the condition that all goods not paid for and removed by the buyer within days after the sale, should be resold without notice, at auction, on his account, of which condition the defendant had notice. II. That the plaintiff was ready and willing at said place to deliver the said goods to the defendant, on the said day, and all times for days thereafter, and caused the same to be retained at the place of said auction for the pur- pose of delivery to defendant upon his paying the said sum of dollars therefor, of all of which the defendant had notice, and the plaintiff has otherwise duly performed all the conditions of said sale, on his part. III. That defendant did not pay for nor remove said goods within days after said sale; that thereafter, to wit, on or about the day of , 19 , at said , the plaintiff resold the same at public auction for account of the defendant for dollars. IV. That no part of the deficiency of dollars, thus arising, has been paid. V. That plaintiff incurred and paid necessary expenses of Sales of Personal Property 723 such resale amounting to dollars, no part of which has been repaid to plaintiff. VI. That by reason of the premises plaintiff has been damaged dollars. • Wherefore [etc., demand of judgment]. 667. For Breach of Contract to Redeliver Goods, or to Pay for them in a Reasonable Time J^ • I. That on or about the day of , 19 , at , in consideration that plaintiff would dehver to him [briefly describe the goods], of the plaintiff, of the value of dollars, the defendant promised and agreed to purchase the same and to pay therefor the sum of dollars, or to return the same to the plaintiff, within a reason- able time thereafter. II. That the plaintiff duly performed all the conditions of said agreement on his part. III. That a reasonable time for the defendant to purchase and pay for said goods, or to return the same to the plaintiff, has elapsed before the commencement of this action; that on or about the day of , 19 , plaintiff duly notified defendant that he required him to return said goods or pay therefor on or before the day of , 19 ," but defendant has not purchased said goods nor paid for them, nor returned them to plaintiff, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. " If the coatract is in the alterna- has his option to dehver either one of tive, it should be set forth and the two things, an averment of a de- alternative shown. See Hatch v. mand of one of the two is insufficient. Adams, 8 Cow. (N. Y.) 35; Stone v. Lutweller v. Linnell, 12 Barb. (N. Y.) Knowlton, 3 Wend. (N. Y.) 374; 512. People V. Tilton, 13 id. 597. And " See note 55 to Form 657. where by the contract the defendant CHAPTER XXVIII ACTIONS FOR BREACH OF WARRANTY ' PAGE 668. General form on express warranty, for damages 725 669 The same, for rescission of sale 726 670 The same, for damages, where plaintiff has refused to accept goods . . 727 671. Of the soundness of a horse 728 672. Of the breeding qualities of a stallion 731 673. On express warranty of the quality of goods 733 674. The same, another form 734 675. On a sale by sample 735 676. Special damages, on express warranty of the safe qualities of thing sold; for personal injuries and injuries to property 736 ' The precedents in this chapter are based on the assumption that the buyer has accepted the goods, and paid for them; if not, the buyer will usually be sufficiently protected by justifying a refusal to accept, or by recouping his damages against an action by the seller for the pur- chase price. The general subject of warranty has been considerably changed in New York, both as to rights and rem- edies, through the adoption in 19U of the so-calted Unifonn Sales Act, constituting Art. 5 of the Pers. Prop. Law. Many of the decisions of the courts have been superseded by the specific provisions of the statute. References to the pertinent sections will be found among the forms given. There is now no difference in remedy, whether the warranty be express or implied. This supersedes the holding in New York that an implied warranty did not .survive acceptance and retention of goods (see Ferguson v. Netter, 204 N. Y. 724 505; Heath Dry Goods Co. v. Hurd, 193 N. Y. 255), for the statute now permits an action for damages, or a counterclaim for recoupment, to be asserted as in the case of an express warranty. See N. Y. . Pers. Prop. Law, § 150. When an implied war- ranty will be raised is regulated by the statute. Id., §§ 94-97. The statute requires the buyer, after an acceptance, to notify the seller of the breach within a reason- able time after its discovery, or after it should have been discovered. Id., §130. If a sale has been fully executed, accompanied by an express or im- plied warranty, an action will lie for a rescission of the contract and recovery of the purchase" price based upon a breach of the warranty. N. Y. Pers. Prop. Law, § 150 (superseding Isaacs V. Wanamaker, 189 N! Y. 122; ano. dec, 71 Misc. 55, 127 N. Y. Supp. 346); Marx v. Loco. Co. of Am., 82 Misc. 468, 144 N. Y. Supp. 937. Actions for Breach of Warranty 725 PAGE 677. Special damages; defects discovered after materials had been used in manufacture 737 678. On implied warranty, of fitness for particular purpose 737 679. On implied warranty, of fitness of article for food 739 680. Another form, where plaintiff was made ill 739 681. Of the working qualities of a machine 741 682. That leased premises were suitable for particular use 742 683. Of title to chattels sold 743 684. Of the genuineness of a note 744 685. Of the genuineness of securities >. 745 686. To recover money advanced on forged collateral 747 687. To recover money paid for a forged mortgage 748 688. The same, the bond and mortgage being void for usury 749 689. Of the amount due on a judgment assigned 750 690. Against agent of disclosed principal, who warrants without authority 751 691. For services rendered on employment by supposed agent who had no authority, or a sham principal 751 668. General ^Form on Express Warranty; for Damages.^ I. That at , and on or about the day of , 19 , defendant sold and delivered to plaintiff [state the subject-matter of sale], for the sum of dol- lars, which plaintiff paid. II. That at the time of said sale, and as a part thereof, and as an inducement to plaintiff to agree to purchase said [goods] defendant warranted to plaintiff that [state character of warranty]. III. That plaintiff purchased said [goods] relying on the said warranty. IV. That as soon as plaintiff had knowledge of the falsity of said warranty he duly gave notice thereof to defendant.^ V. That said warranty was untrue; that said [goods] were not [as represented] but on the contrary [state true character]. VI. That said [goods] were at the time of delivery to plain- tiff of the value of dollars; that they would have 2 See N. Y. Pers. Prop. Law, §§ 93, Law, § 130. Regina Co. v. Gately 95, 130 and 150; Mastin v. Boland, Fum. Co., 171 App. Div. 817, 157 178 App. Div. 421. See, also, general N. Y. Supp. 746; Mastin v. Boland, notes to Form 671. 178 App. Div. 421. ' Required by N. Y. Pere. Prop. 726 Abbott's Forms of Pleading been of the value of dollars if they had answered to said warranty/ VII. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 669. The Same, for Rescission of Sale.^ [1, II, III and IV, as in Form 668.] V. That plaintiff was wholly ignorant of the falsity of said warranty when he accepted said [goods] and did not ascertain the falsity thereof until on or about the day of ,19 . VI. That upon the discovery of the falsity of said war- ranty plaintiff elected to rescind said sale, and immediately [or, on or about the day of , 19 , which was within a reasonable time after the discovery thereof] duly notified defendant of the falsity of said warranty and of his election to rescind, and then and there [returned, or] offered to return said [goods] to the defendant, but defendant claimed that the [goods] were as warranted and notified plaintiff that he would not accept the return thereof. VII. That at the time of plaintiff's said offer to return the said [goods] they were in substantially as good condition as they were in at the time they were delivered to plaintiff. VIII. That plaintiff has duly demanded of defendant the return to him of said dollars, paid as the purchase price of said [goods]. IX. [7/ plaintiff has sold the goods after electing to rescind:] That more than days after said notice of rescission was given to defendant, which was a reasonable time there- ^ As to measure of damage, see See generally the notes to Form Powell V. N. E. Cotton Yarn Co., 671. 154 App. Div. 875, 139 N. Y. Supp. The action will lie, although title 569. has not passed to plaintiff, under ' See N. Y. Pers. Prop. Law, an agreement of conditional sale. §§ 134, 150. The decision in Isaacs v. Shimel v. Williams Oven Mfg. Co., Wanamaker, 189 N. Y. 122, has ap- 93 Misc. 174, 156 N. Y. Supp. parently been superseded by the 1060. statute. Actions for Breach of Warranty 727 after, plaintiff sold said [goods] for the sum of dol- lars; that the necessary expense of said sale, and the reason- able charge for the care and custody of said [goods] prior thereto, amounted to dollars. X. That plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand for judgment]. 670. The Same, for Damages, where Plaintiff has Re- fused to Accept Goods.® I. That at , and on or about the day of , 19 , plaintiff and defendant entered into an agreement whereby defendant agreed to sell and deliver to plaintiff on , at [specify the goods], and plaintiff promised and agreed to pay therefor the sum of dollars. II. That as a part of said agreement, and as an inducement to plaintiff to agree to purchase said [goods], defendant war- ranted that [state the warranty]; that plaintiff reUed upon said warranty in making said agreement. III. That on or about the day of , 19 , defendant offered to deliver to plaintiff certain [goods] in pretended and claimed compliance with said agreement; that said [goods] so offered were not in accordance with said war- ranty, but were [state actual condition]. IV. That plaintiff refused to accept the [goods] so offered for delivery to him, and demanded of defendant that he should deliver [goods] which were in compliance with his said warranty; that defendant refused so to do, and notified plaintiff that he clahned that said — goods — so offered were in full compliance with his aforesaid agreement [and further notified plaintiff that he would make no deUvery of any other quality of said — goods — than as then offered]. V. [7/ the sale agreement did not require delivery at a specified » See N. Y. Pars. Prop. Law, § 150; 820. See generally the notes to Form Interb. Brewing Co. v. Ind. Cons. Ice 671. Co., 83 Misc. 119, 144 N. Y. Supp. 728 Abbott's Forms of Pleading time:] That plaintiff thereafter duly notified defendant that he required delivery of [goods] in compliance with said agree- ment on or before the day of , 19 , which was a reasonable time after said notice within which to make delivery thereof; that defendant failed and refused so to do. VI. That the value of said [goods] if they had answered to said warranty would have been dollars. VII. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 671. Of the Soundness of a Horse.^ [Complaint sustained iti Bosworth v. Higgins, 7 N. Y. Supp. 210, 26 N. Y. State Rep. 474.] I. That at , and on or about the day of , 19 , defendant offered to sell to plaintiff a certain horse, and warranted ^ and represented said horse to be in all ' If a horse is warranted sound, de- fects which are not apparent on sim- ple inspection by the vendee, and of which he is not informed, will sustain the action. Vates v. Cor- nelius, 59 Wise. 615; Hoe v. Sanborn, 21 N. Y. 555. A general warranty of soundness covers even visible de- fects, unless they are such as could be discerned by an ordinary ob- server without pecuUar skill. Birds- eye V. Frost, 34 Barb. (N. Y.) 367; Vanderwalker v. Osmer, 65 id. 561. An action for a false warranty ac- crues immediately if the warranty is that, the articles are of a certain kind; if it is that they will produce so and so, it arises when it appears that they will not do so. Allen v. Todd, 6 Lans. (N. Y.) 222. ' It is not necessary, in pleading a mere general warranty of the quality of goods sold, to state whether it was express or implied. Even if plaintiff declares on an express war- ranty he may prove and recover upon an implied warranty. Rey- nolds V. Mayor, etc., Co., 39 App. Div. 218, 56 N. Y. Supp. 106. A general averment that the seller warranted the article to be of good quality is sufficient. Proof of a war- ranty of either kind will support such averment. Hoe v. Sanborn, 21 N. Y. 552; Rogers v. Beckwith, 46 App. Div. 429, 61 N. Y. Supp. 725; Pren- tice V. Fargo, 53 App. Div. 608, 65 N. Y. Supp. 1114, aff'd 173 N. Y. 593. It is not essential to use the word "warranted," though it may be useful in indicating plaintiff's theory of action. Van Pub. Co. v. Westing- house, etc., Co., 72 App. Div. 121, 76 N. Y. Supp. 340. An allegation that defendant "stated and repre- sented" may be deemed equivalent to an allegation that defendant "warranted," if the character of the representation amounts to a war- Actions for Breach of Warranty 729 respects perfectly sound ; that plaintiff relied upon said war- ranty " and representations and then and there purchased said horse and paid to the defendant therefor the sum of dollars. ranty. Hyde !'. Eckler, 20 Wkly. Dig. (N. Y.) 30. Compare Fanning V. Seed Co., 89 Hun 146, 35 N. Y. Supp. 10. The words "falsely and fraudu- lently," in characterization of the making of the warranty or represen- tation, are not necessary to the cause of action upon the warranty. No averment of defendant's knowledge or fraud is necessary to support that action. Bosworth v. Higgins, 7 N. Y. Supp. 210^ Ross V. Mather, 51 N. Y. 108; Schuchardt v. Allen, 1 Wall. 359; Case ti. Boughton, 11 Wend. (N. Y.) 106; Holman v. Dord, 12 Barb. (N. Y.) 336. It was held, however, in Sweeny v. Vrooman (Wise, 1894), 19 N. W. Rep. 46, that if scienter is alleged, it must be proved; contra, Schuchardt v. Allen, 1 Wall. 359; Ross v. Mather, 47 Barb. (N. Y.) 582. Although the basis of the action is the falsity of the representation, charges of fraud in making it have no proper place in this action, which is founded solely upon breach of con- tract. If the complaint unnecessarily contain averments of the additional facts essential only to the action of deceit, the court may conclude that the complaint sounds in tort, and that plaintiff cannot recover upon proof of the false warranty alone. Vandervort v. Mink, 113 App. Div. 601, 98 N. Y. Supp. 772; Ross v. Mather, 51 N. Y. 108. Or the action may be tried as one for breach of warranty, if defendant does not object. See Booth v. Englert, 105 App. Dip. 284, 94 N. Y. Supp. 700. A complaint containing a cause of action upon a warranty as to a chat- tel, and also a cause of action in tort for a false representation in respect of such chattel, was held demurrable for misjoinder of causes of action, under N. Y. Code Civ. Pro., §484. Seymour v. Lorillard, 8 N. Y. Civ. Pro. R. 90; Sweet v. Ingerson, 12 How. 331. In Edick v. Crim, 10 Barb. (N. Y ) 445, it was held that an allegation of false representation, without any allegation of warranty or promise, must be regarded as founding the action on tort, and would not sus- tain a recovery on a warranty. Where the complaint alleges a false warranty, without averring any false representation inducing the purchase, or any representation with intent to deceive, or that the false representfj- tions had anything to do with the pur- chase, the action, is on contract, and arrest cannot be allowed. Brown v. Brockett, 55 How. Pr. (N. Y.) 32. ' It is necessary that the purchaser should have relied on ihe warranty, whether express or implied. See N. Y. Pers. Prop. Law, §§93, 96; Rich V. Minom, 157 App. Div. 783, 142 N. Y. Supp. 771, aff'd 215 N. Y. 666. The complaint must aver, and the evidence show, that the plaintiff was actually misled by relying on the war- ranty. Holman v. Dord, 12 Barb. (N. Y.) 336; Oneida Society v. Lawrence, 4 Cow. (N. Y.) 440; Baker V. McGinntss, 22 Ind. 257; Bank i'. Nodine, 26 Or. 53; Richardson v. Coffman, 87 Iowa, 121. 730 Abbott's Forms of- Pleading II. That at the time of said warranty and sale the said horse was not sound/" but [specify nature of -the unsoundness, as, had a spavin on one hind leg and another spavin coming on the other hind leg], and was worth dollars less than would have been its value had it been as the defendant represented and warranted." [Allege special damage, if any, e. g., as follows: That there- after said horse infected with said disease three other horses of the plaintiff of the value of dollars, by reason whereof one of said horses died, and the others were ren- dered worthless, and the plaintiff was put to great expense in the care of said horses and in attempting their cure.]^^ '"As against general demurrer, it is sufficient to assign a breach in the words of the contract, either nega- tively or affirmatively, or in words coextensive with the import and ef- fect of the contract. Fisk v. Hicks, 31 N. H. 535; Brown v. Stebbins, 4 Hill (N. Y.), 154; Jones County v. Sales, 25 Iowa, 25; Seely v. Hills, 44 Wise. 484; Rowland v. Phalen, 1 Bosw. (N. Y.) 43; Schurtz v. Klein- meyer, 36 Iowa, 392; Moore v. Besse, 30 Cal. 670; Goodenough v. Snow, 27 Vt. 720. See, however. Wood, etc., Co. V. Irons, 10 Ind. App. 454. The particular unsoundness need not be stated, but a breach of an affirmative character should be stated with more particularity than one of a negative character. Leeper v. Shawman, 12 Ind. 463. Although particular defects are stated, other defects may be shown under the general averment of unsoundness. Fleming v. Toler, 7 Gratt. 310. Plaintiff need not negative the idea that the defects were patent. La- beaune v. Poclington, 21 Mo. 35. 1' Where there is an express war- ranty of quality, the buyer is not bound, on discovering a defect, to return the goods in order to have an action for a breach. He may, with- out offering to return, sue for his damages, or recoup them in the seller's action for the price. N. Y. Pers. Prop. Law, § 150; Miller v. Eno, 14 N. Y. 597; Waring v. Mason, 18 Wend. (N. Y.) 425; Boorman v. Jenkins, 12 id. 566. The statute seems to give the same rights on an implied warranty. See N. Y. Pers. Prop. Law, § 150. ^^ The plaintiff may recover not only the difference between the value of the chattel if it answered to the warranty and as" found to be, but also the special damages alleged for injuries occasioned by the condi- tion of the chattel, as, the communi- cation of infectious diseases by an animal warranted sound. Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Long v. Clapp, 15 Neb. 417; Smith v. Green, L. R. (1 C. P. Div.) 92; Mullett v. Mason, L. R., 1 C. P. 559,; Bradley v. Rea, 14 Allen, 20. One who buys a horse with a warranty of kindness may recover for damage done by the breaking of his wagon and harness and for personal injury, in conse- quence of unkindness of the horse. Bruce v. Fiss, etc., Horse Co., 47 Actions for Breach of Warranty 731 III. That as soon as plaintiff discovered that said war- ranty was untruCj he duly gave notice thereof to defend- ant." IV. That by reason of the premisses this plaintiff was damaged dollars. ^ * Wherefore [etc., demand of judgment]. 672. Of the Breedmg Qualities of a Stallion.^" I. That at , and on the day of , 19 , defendant sold plaintiff a black stallion, for which App. Div. 273, 62 N. Y. Supp. 96. Such special damage may be recov- ered notwithstanding the return of the chattel. Id. " Required by the statute (N. Y. Pers. Prop. Law, § 130). Regina Co. V. Gately Fum. Co., 171 App. Div. 817, 167 N. Y. Supp. 746. ^* It is not essential that a formal allegation of damage be included. Russell V. Corning Mfg. Co., 49 App. Div. 610, 63 N. Y. Supp. 640. The measure of general damage for a breach of warranty of quality, where the goods have not been returned, is the difference between the actual value of the article sold and the value of the article, had it conformed to the warranty. N. Y. Pers. Prop. Law, § 150; Isaacs v. Wanamaker, 189 N. Y. 122; Tuttle v. Brown, 4 Gray (Mass.), 457; Loomis v. Crom- well, 8 Law Rep. 546; Pinney v. Andrus, 41 Vt. 632; Freyman v. Knecht, 78 Pa. St. 141; Thornton v. Thompson, 4 Grat. (Va.) 121; Moul- ton V. Scruton, 39 Me. 287; Gary v. Gruman,-4 Hill (N. Y.), 625; Reggio V. Braggiotti, 7 CuA. (Mass.) 166; Cothers v. Keever, 4 Pa: St. 168; Tatum V. Mohr, 21 Ark. 351; and it has been held that the contract price is strong evidence of what the article would have been worth if sound. Gary v. Gruman, supra; Thornton i;. Thompson, supra; Reg- gio V. Braggiotti, supra. Where the goods prove utterly worthless the whole price paid may be recovered. See Williamson v. Carnaday, 3 Ired. (N. C.) 349. Where the seller sues for the price, the buyer may recoup the breach of the express warranty, in reduction, of damages. N. Y. Pers. Prop. Law, § 150; Harrington !'. Stratton, 22 Pick. (Mass.) 510; Mixer v. Cobum, 11 Mete. (Mass.) 561; Dorr v. Fisher, 1 Gush. (Mass.) 271. '* See generally the notes to Form 671. The precedent is from Byard v. Harkrider, 6 Western Rep. 867 (Ind. Sup. Ct.,) where the complaint was sustained against general demurrer. The complaint is given in full, but the words inclosed in brackets are irrelevant to the action on the warranty, and would raise a dangerous question with regard to the intended theory of action. (See notes to preceding form.) Under the facts alleged in the precedent, an imphed warr8,nty would arise under N. Y. Pers. Prop. Law, §96. 732 Abbott's Forms of Pleading plaintiff paid defendant the sum of dollars; that plaintiff prior thereto had informed defendant that he re- quired a stallion for breeding purposes. II. That defendant [falsely and fraudulently] represented said horse to be a sure foal-getter [knowing the same not to be a sure foal-getter, and well knowing, at the time said rep- resentations were made, that said horse was utterly barren and incapable of getting colts]. III. That plaintiff stood said horse for the year 19 , and advertised the same; that said horse was patronized exten- sively by the public, who put to him mares, which mares were fruitful and were covered by said, horse during the spring, summer and fall of 19 ; that none of said mares became with foal by said horse; that said horse was utterly barren and unprolific at the time of said sale, and utterly incapable of getting any mares with foal. IV. That plaintiff relied upon the statements and rep- resentations so made by defendant, believing the same to be true, and relying upon defendant's skill and judgment and knowledge of said animal, and thereupon purchased said horse for said breeding purposes; that the defects and reasons why said horse was so unprolific and barren were of such a character that they could not be detected by a. person of ordinary prudence and skill, exercising ordinary care; ^* that said horse was unsound, and, for reasons unknown to plain- tiff at the time of the sale [but well known to defendant,] un- prolific and barren; and that plaintiff had no means, at or before the time of said purchase, of ascertaining that said horse was so unprolific ; [but that said facts were'well known to defendant, who concealed the same from plaintiff]. V. That said horse was and is of no value whatever to plaintiff, and plaintiff has been damaged dollars. '^ " Plaintiff is not required to neg- sale, and recover the purchase money, ative the idea that the defects may and incidental expense suffered, see have been apparent. Labeaune v. Form 669, for necessary additional Poctlington, 21 Mo. 35. allegations of notice and offer to " If plaintiff desires to rescind the return. Actions for Breach op Warranty 733 VI. That as soon as plaintiff discovered that said warranty was not true, he duly notified defendant thereof.'^ Wherefore [etc., demand of judgment]. 673. On Express Warranty of the Quality of Goods. '' [From Fairbanks Canning Co. v. Metzger, 118 N. Y. 260.] I. [After alleging a purchase of beef, the pleading continued] that by the agreement between' the parties said beef was to be and warranted to be very clean, well dressed and in first- class condition, not heated before being killed, and in as good or better condition than the beef delivered by defendant's competitors, A. & S. II. That defendant failed to perform its agreement with said plaintiffs, and large quantities of the beef so delivered by said defendant to said plaintiffs were not clean, or well dressed, or in first-class condition, that much of it had been heated before being killed, and a very large quantity of it was not in as good condition as the beef delivered by A. & S. That it was heated and damp and slimy, and partially de- cayed, and was not properly loaded and not properly cooled or ventilated or provided with ice, and was not properly shipped in proper cars, and was of much less value than it would have been if it had been as agreed by defendant. III. That at least [75,000 lbs.] of said beef was on an average worth [two cents per pound] less at than it would have been had it been as agreed by said defendant, and said plaintiffs have sustained at least dollars dam- ages in consequence of such breach of agreement- on the part of said defendant. IV. That plaintiff relied upon said warranty, and was induced thereby to accept and pay for said beef; that as soon " Required by N. Y. Pers. Prop. implied warranty did not survive Law, § 130. acceptance and retention of the goods " Under the uniform sales act (in (see Heath Dry Goods Co. v. Hard, New York, Pers. Prop. Law, §§ 82- 193 N. Y. 255). 158), there is no difference in remedy When an implied warranty of between an express or implied war- quality is raised is regulated by N. Y. ranty. This statute supersedes the Pers. Prop. Law, § 96. prior holding in New York that an 734 Abbott's Forms of Pleading as he discovered that said warranty was false, plaintiff gave due notice thereof to defendant.-" Wherefore [etc., demand of judgment]. 674. The Same, Another Form. [Complaint sustained in Lindsay v. Mulqueen, 26 Hun (N. Y.), 485.] I. That at , on or about the day of , 19 , the defendant offered to sell the plaintiff for dollars, to be paid to him by this plaintiff, yards of carpet, which said carpet defendant warranted [and fraudulently represented] " to be a first-class imported Eng- lish body Brussels carpet and made of all wool. II. That the plaintiff, relied on said warranty and repre- sentations and believed the same to be true, and was thereby induced to purchase, and did purchase the same from the defendant and paid him therefor said sum of dollars. III. That in truth and in fact said carpet so sold as afore- said was not a first-class imported English body Brussels carpet made of all wool, as by the defendant warranted and represented, but the same was of a mixed texture known as jute and was a greatly inferior article [all of which the de- fendant knew at the time he made the fraudulent warranty and representations aforesaid]. ^^ IV. That said carpet would have been of the value of dollars had it answered to said warranty; that its actual value was not more than dollars. V. That plaintiff has been damaged dollars. VI. That as soon as plaintiff discovered that said war- ranty was. untrue he gave due notice thereof to defendant.^' Wherefore [etc., demand of judgment]. ^ Notice to defendant required by however, that the complaint was not N. Y. Pers. Prop. Law., § 130. suflBcient on that theory, as it con- ^' These allegations in brackets are tained no allegation of intent to de- unnecessary and dangerous; they ceive. appeared in the precedent, and i^ere ^^. See last note, responsible for defendant's appeal ^' Required by N. Y. Pers. Prop, on the ground that the complaint was Law, § 130. framed in tort. The court held, Actions for Breach of Warranty 735 675. On a Sale by Sample." [From counterclaim in Briggs v. Hilton, 99 N. Y. 517.] I. That in or about the month of , 19 , at , the plaintiff bought certain goods of the defend- ant, by samples then exhibited, which represented sound and merchantable goods suitable for and known as "cloakings," which goods defendant agreed and warranted should in all respects be equal to such samples, and plaintiff bought relying thereupon. II. That during the month of thereafter follow- ing, defendant under plaintiff's said agreement delivered to plaintiff six bales, containing fifty-seven pieces of such cloakings; that the first bale so delivered contained ten pieces, which plaintiff examined and found to correspond with said samples. III. That relying upon defendant's said agreement and warranty, plaintiff accepted and paid for said six bales the agreed price, to wit, dollars. IV. That thereafter, and without knowledge of their real condition, plaintiff sold and delivered a portion of said goods to their customers; that said customers afterwards returned the same as damaged, and refused to keep or pay for them ; " To constitute a sale by sample, Co. v. De Pass, 154 App. Div. 525, it must appear that the>parties con- 139 N. Y. Supp. 611. tracted solely with reference to the On the sale of goods by sample, sample, and naturally understood there is an implied warranty that that they were so dealing with the the goods sold shall be equal in quality of the bulk. Reynolds v. quality and description to the sample Palmer, 21 Fed. Rep. 433. produced. N. Y. Pers. Prop. Law, Such a sale contemplates that the § 97. It had been usually held to be goods are in esse. An order to man- an express warranty. See Henry, ufacture according to specifications," etc., Co. v. Talcott, 175 N. Y 385; differing from the article exhibited, Staiger v. Soht, 116 App. Div. 874, does not result in a sale by sample. 102 N. Y. Supp. 342, aff'd 191 N. Y Smith V. Coe, 170 N. Y. 162. 527; G aff v. Foster, 67 Mo. 512; Gill If the bought and sold note con- .v. Kaufman, 16 Kan. 571; Moore v. tains no reference to a sale by sample, McKiiiley, 5 Cal. 471; Brantley v. it is error to permit such proof, as Thomas, 22 Tex. 271; Day w. Raguet, varying the writing. Stand. Milling 14 Minn. 273; Grimolby v Wells, Law R., 10 C. P. 391, 12 Eng. Rep 451. 736 Abbott's Forms of Pleading that thereupon plaintiff examined the goods contained in said five other bales, so delivered by defendant, and found that no part thereof corresponded with said samples, but they were imperfect, unmerchantable and wholly unfit for cloakings and of no value therefor, or for any other purpose and wholly unsalable. V. That plaintiff immediately upon discovery thereof notified defendant of the defective character and condition of said goods, as aforesaid ^' [and offered to return the same, but defendant refused to receive them or to return to plaintiff the price paid therefor].^^ VI. That by reason aforesaid, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 676. Special Damages; on Express Warranty of the Safe Qualities of Thing Sold; Special Damages for Per- sonal Injuries, and Injuries to Property.^' I. [As in Form 671; except that the warranty was that the horse was ''sound, kind and true, and gentle and quiet in harness and suitable for use to drive as a carriage horse"]. II. [Negative the warranty, as in paragraph II of said Form 671.] '* Required by N. Y. Pers. Prop. matter of common knowledge. The Law, § 130. precedent is adapted from Bruce v. ^ Not necessary unless plaintiff Fiss, Doer & . Carroll Horse Co., desires to rescind the sale. See Form 47 App. Div. 273, 62 N. Y. Supp. 669, and N. Y. Pers. Prop. Law, 96. § 150. Other instances of similar recov- " There are cases, of which the eries are: Wood v. Anthony & Co., precedent is an example, where re- 79 App. Div. Ill, 79 N. Y. Supp. 829 covery will be permitted, in an action jjexplosion of powder warranted free for a breach of warranty, for con- from explosive compounds). Lan- sequential damages, including in- gridge v. Levy, 2 Mees. & W. .519 juries to person or property; the (bursting of gun); Page v. Ford, 12 warranty must be special, with Ind. 46 (explosion of boiler), probable if not almost certain con- The rule has no application where sequences entailed by a breach, the warranty is general. Birdsinger where the ordinary use of the thing v. McCormick Harvesting Mach. sold involves personal danger as a Co., 183 N. Y. 487. Actions for Breach of Warranty 737 III. That thereafter and on or about the day of , 19 , and while plaintiff was attempting to use said horse to drive as a carriage horse, it ran away, over- turning the vehicle in which plaintiff was driving and throw- ing plaintiff out; that thereby plaintiff was injured [state how, as in actions for negligence] and said vehicle and harness of the value of dollars were wholly destroyed. IV. That by reason of the premises plaintiff has been damaged, in all, in the sum of dollars. V. That as soon as |)laintiff discovered that said warranty was untrue, plaintiff gave due notice thereof to defendant.^* Wherefore (etc., demand of judgment]. 677. Allegation of Special Damage; Defects Discovered after Materials Used in Manufacture. [After allegations showing a sale of materials to be manu- factured into articles of merchandise, with warranty of fitness for such purpose; also allegations of plaintiff's use of the materials in manufacture:] That said [steel] was not as warranted, but on the con- trary was [state defects]; that such defects and inferior quality were not discoverable upon inspection, and were wholly unknown to plaintiff until subsequent to the manufacture of said [steel] into [axes] as aforesaid. That the [axes] so manufactured by plaintiff from the said [steel] so furnished by defendant are 'of the value of dollars; that if said [steel] had been as warranted, the [axes] manufactured therefrom would be of the value of dollars.^ [Notice to defendant as in preceding forms.] 678. Implied Warranty; of Fitness for Particular Purpose.^" [Under Uniform Sales Act (N. Y. Pers. Prop. Law), § 96.] ^ Required by N. Y. Pers. Prop. Powell v. N. E. Cotton Yarn Co., 154 Law, § 130. App. Div. 875, 139 N. Y. Supp 669. 2' That the difference would be '" Adapted from Wasserstrom v. the measure of damages see Parks v. Cohen, etc., Co., 165 App. Div. 171, Morris Axe, etc., Co., 54 N. Y. 586; 150 N. Y. Supp. 638. 738 Abbott's Forms of Pleading I. That at the times hereinafter mentioned defendant was engaged in the manufacture of [specify what, as] leather. II. That at , and on or about the day of , 19 , the defendant sold and delivered to the plaintiff [specify what, as] kid skins [manufactured by him] for Which plaintiff paid dollars; that plaintiff bought the same for the purpose of [state particular purpose,^'"^ as] manufacturing the same into shoes, of which said de- fendant had knowledge, and then and there warranted said leather to be fit for such purpose. III. That plaintiff relied upon said warranty, and upon the defendant's skill and judgment,'^ and attempted to use said [leather] for the purpose aforesaid, but that the same [show breach of warranty, as] when put to the test of actual wear proved unsound and rotten, and unsuited for manufac- ture into shoes. IV. That the value of said [leather] at the time of the delivery thereof had it answered to said warranty would have been dollars; that it was actually of the value of dollars.^^ V. That as soon as said unfitness was ascertained, plaintiff notified defendant thereof ^* [and offered to return the said leather].'^ The law will raise an implied war- " The purpose for which the article ranty of reasonable fitness for the was warranted fit must be set out; it purpose intended, and of freedom is insuflBcient to aver warranty that from latent defects produced by the it was fit for use. Howard Iron process of manufacture, upon a sale Works v. Buffalo Elev. Co., supra; by a manufacturer for a particular Shepherd v. Pybus, 3 Man. & G purpose. Heath Dry Gas Co. v. 868.' Hurd, 193 N. Y. 255; Waeber v. '^ ^ purchase from a retaU dealer Talbot, 167 id. 48; Howard Iron does not raise such a presumption. Works V. Buffalo Elev. Co., 113 App. Teller & Co. v. Kinlen, 165 App. Div Div. 562, 99 N. Y. Supp. 163; Hoe 351, 150 N. Y. Supp. 966. V. Sanborn, 21 N. Y. 552; Harris v. " If the materials have been man- Waite, 51 Vt. 481; White v. Oaks, ufactured before the defects could be 88 Me. 367. ascertained the measure of damage is Such warranty now survives ac- different; see Form 677, and notes, ceptance. N. Y. Pers. Prop. Law, " Required by N. Y. Pers. Prop. §§ 130, 150; Marx v. Loco. Co. of Am., Law, § 130. 82 Misc. 468, 144 N. Y. Supp. 937. " Prior to the adoption of the Sales Actions for Breach op Warranty 739 VI. That [defendant refused to accept said leather, or any part thereof, or to repay to plaintiff the purchase price thereof '« and that] plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 679. On Implied Warranty, of Fitness of Article for Food.^^ I. That at the times hereinafter mentioned, defendant was a retail dealer in [meat]. II. That at , on _ or about the day of , 19 , plaintiff purchased of defendant, for imme- diate consumption as food [state character of purchase], which defendant knew was purchased for such purpose, and then and there warranted was fit therefor. III. That plaintiff relied upon said warranty, and on defendant's skill and judgment as to the quality of said [meat], and paid defendant dollars therefor. IV. That said [meat] was not fit for use as food, but was [pa,rtially decayed and unwholesome and dangerous ,to be used] and of no value to plaintiff whatever. V and VI as in Form 681, paragraphs IV and V. Wherefore [etc., demand for judgment]. 680. Another Form; Where Plaintiff was Made Hl.^* I. That at and at all the times hereinafter men- Act, an offer to return was held See next form for a precedent where essential (Heath Dry Gas Co. v. Hurd, plaintiff was made ill. 193 N. Y. 255) and to be made See, generally, the notes to pre- promptly. Waeber v. Talbot, 167 id. ceding form on implied warranty. 48. Under the remedies now given by ** PVom Race v. Crum, 162 App. the statute (N. Y. Pers. Prop. Law, Div. 911, 146 N. Y. Supp. 197, where § 150) notice and offer to return are a verdict for plaintiflf of $1,000 was only essential when plaintiff seeks a aflBrmed. See, also, Leahy v. The rescission of the sale. Essex Co., 164 App. Div. 903, 148 " See last note. N. Y. Supp. 1063; Rinaldi v. Mohican " That an implied warranty will be Co., 171 App. Div. 814, 157 N. Y. raised, see Divine v. McCormick, 50 Supp. 961. Barb. (N. Y.) 116; Money v. Fisher, See notes to Form 678, on the 92 Hun, 347, 72 N. Y. St. Rep. 383, general subject of actions on implied 36 N. Y. Supp. 862. warranties. 740 Abbott's Forms of Pleading tioned the defendant was the proprietor, engaged in the business of carrying on a drug store. II. That the defendant as a part of his said business, had in his said drug store a counter at which he drew and sold soda waters, and sold ice cream, to be, and which was largely, consumed at said counter in said store, and which were sold by the defendant as fit and proper for immediate human consumption. III. That on the day of , 19 , the plain- tiff went to said store and, at said counter therein, ordered and purchased from an employee of the defendant in charge of said counter, ice cream, which the defendant and said defendant's employee well knew was to be eaten by the plain- tiff at once and upon said premises; that said ice cream was taken from a receptacle within, or near, said counter, and by said employee of the defendant, and was handed to and served to the plaintiff, who thereupon at once, at said counter, in said store, in the presence of the employee of the de- fendant serving the same, ate said cream. IV. 'That said ice cream thus served and delivered to the plaintiff by said employee of the defendant was not whole- some or fit for human consumption, but on the contrary was poisonous, filled with poisonous ptomaines, and was highly injurious and poisonous to any one eating the same, which fact was known to the defendant, or should have been known by him, in the conduct of his said business.'" V. That plaintiff was thereby made violently ill, and suffered great pain and anguish, and was prevented from attending to his business as a [clerk] for weeks, and was put to the expense of dollars for medical attendance. VI. That when the defendant sold said cream hereinbe- fore mentioned to the plaintiff, he warranted and represented that the same was wholesome and fit and proper for human consumption, and the plaintiff relied upon such warranty " Defendant's negligence in not an essential element in the action, discovering the unfit condition is not Rinaldi v. Mohican Co., supra. Actions for Breach of Warranty 741 and accepted and ate it as aforesaid in reliance on such war- ranty, and the plaintiff had no knowledge that said cream was not wholesome and suitable for him to eat; that said warranty of the defendant was broken as hereinbefore set out and the plaintiff has suffered great damage thereby. VII. That as soon as plaintiff discovered said breach of warranty he gave defendant due notice thereof. VIII. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 681. Of the Working Qualities of a Machine." I. That at , on or about the day of , 19 , the defendant sold and delivered to plaintiff a [reaping machine] for the sum of dollars then paid by plaintiff therefor,* [if an express warranty is claimed] and then and there warranted [state its character, as:] that said machine was well made and made of good material, and that it would work well and as well as any machine on the market." [If the implied warranty of fitness is relied on, substitute after *] that defendant is the manufacturer of such machines, which are used for the purpose of [state], and plaintiff made known to defendant that he desired to buy said machine for such purpose; that defendant then and there warranted said machine as fit for such purpose. II. That plaintiff relied upon the said warranty and on the defendant's skill and judgment with respect to the character of said machine, and was thereby induced to buy and pay for said machine. *" So far as based on an implied a claim for damages for personal warranty the precedent is under injuries consequent upon its breach. N. Y. Pers. Prop. Law, § 96, subd. 1. Birdsinger v. McCormick Harvesting Such an implied warranty now sur- Mach. Co., 183 N. Y. 487. See vives an acceptance. See Marx v. Form 676, for a precedent on a Loco. Co. of Am., 82 Misc. 468, 144 warranty which will support such N. Y. Supp. 937. a claim, with notes thereto. " Such a warranty will not support 742 Abbott's Forms of Pleading III. That said machine upon due tests thereof did not fulfill nor comply with the conditions of said warranty; that it was not well made nor made of good material, that it did not work well, nor as well as other machines on the market. [Or, in case of the implied warranty:] that it was not fit for said purpose in that [state defects]. ^ IV. That as soon as plaintiff discovered that said war- ranty was false he gave due notice thereof to defendant.*^ V. That by reason aforesaid said machine was and is entirely worthless and of no value to plaintiff, to plaintiff's damage dollars.*' Wherefore [etc., demand of judgment], 682, That Leased Premises were Suitable for Particular Use.^" I. That at the times hereinafter mentioned plaintiff was engaged in the general business of [printing,] and the de- fendant was the owner in fee of premises known as No. street in the City of II. That on , 19 , defendant leased to the plain- tiff the [first loft] of the building on said premises, for the term of and at a yearly rental of , payable in monthly installments of dollars. III. That said lease contained the following covenant of warranty on the part of the defendant : [quote covenant relied on]. ■•2 Required by N. Y. Pers. Prop, be included. See Form 669, and Law, § 130. notes. ■" Extra expense incident to a con- ** Adapted from complaint in tinued use of the machine after dis- Scheffler Press v. Perlman, 130 App. covery of the defects cannot be Div. 576, 115 N. Y. Supp. 40, where recovered. Isbell-Porter Co. v. Hein- it was held that there was no im- eman, 113 App. Div. 79, 98 N. Y. plied warranty that the premises were Supp. 1018. suitable for the use to which the If plaintiff desires to rescind the landlord knew the tenant intended sale and recover the purchase money, to put them; also, that the measure additional allegations covering the of damages in case of the breach of an tender of a return of the article must express warranty would be as in- dicated in paragraph VI. Actions for Breach of Warranty 743 IV. [Allege actual condition of premises, showing a breach of warranty, as in preceding forms.] V. That plaintiff on the day of , 19 , removed from said leased premises, on account of their [unsafe] condition aforesaid. VI. That said premises, if they had been as represented and warranted, would have had a rental value of dollars; that plaintifif necessarily expended the sum of dollars in removing his machinery to and adapting it within said premises, in all to plaintiff's damage dollars. ^ • Wherefore [etc., demand for judgment]. 683. Of Title of Chattels Sold,^'^ I. That on or about the day of > 19 , at , the defendant offered to sell to the plaintifif for dollars, to be paid to him by this plaintifif, a certain [piaiioforte,] then in the defendant's possession, and war- ranted said pianoforte to be the property of defendant, and that he had the right to sell the same. II. That the plaintiff, relying on said warranty, purchased the same from defendant, and paid him therefor dollars. III. That said pianoforte was then not the property of defendant, but belonged to one M. N., and defendant had no right to sell the same. IV. That thereafter the said M. N. eued the plaintiff to recover possession of the same; and that the plaintiff gave the defendant due and timely notice of the commence- « Upon the sale of personal prop- 40 N. Y. 283; McGjiEn v. Baird, 62 erty in possession, the law implies a id. 329. warranty by the seller of right to sell. If the chattel is out of the seller's N. Y. Pers. Prop. Law, § 94, 2 Kent's possession, no warranty of title will Com. 478; Gross v. Kierski, 41 Cal. be implied. Edick v. Grim, 10 Barb. Ill; Davis v. Smith, 7 Minn. 414; (N. Y.) 445, 3 Kent's Com. (5th ed.) Chancellor v. Wiggins, 4 B. Mon. 201; 478; Scranton v. Clark, 39 N. Y. 290. Bechet v. Smithers, 18 Jones & S. It is unnecessary to allege that de- (N. Y.) 381; Billings v. Sutton, 5 fendant knew of the defect. Medina JSr. Y. Week. Dig. 58; Burt v. Dewey, v. Stouthton, 22 Raym. 893. 744 Abbott's Forms of Pleading ment of said action, and therein required him to defend the same, or judgment would be suffered by failure to answer; but the defendant neglected and refused to defend said action, and such proceedings were afterwards had therein that the said M. N. recovered judgment for the possession of said pianoforte from the plaintiff, with dollars costs, which plaintiff paid, and said pianoforte was thereupon taken from plaintiff by said M. N. V. That by reason of the premises plaintiff was damaged dollars/* Wherefore [etc., demand^ of judgment]. 684. Of the Genuineness of a Note.*' I. That on or about the day of , 19 , at , the defendant indorsed and delivered to the plain- tiff, for a valuable consideration, a promissory note [descrih- * The measure of damages in an action of deceit or warranty against the seller upon a failure of title is the purchase price paid, and interest, and also the damages and costs re- covered by the true owner against the buyer, with interest thereon. O'Brien v. Jones, 91 N. Y. 193; Bias- dale V. Babcock, 1 Johns. (N. Y.) 517; Armstrong v. Percy, 5 Wend. (N. Y.) 535; Arthur v. Moss, 1 Or. 193. " Adapted from Gabay v. Doane, 66 App. Diy. 607, 73 N. Y. Supp. 381. As a general rule, upon the sale of a note or written obhgation, there is an implied warranty by the seller of its genuineness. Whitney v. Nat. Bank, 45 N. Y. 305. But if, at the time of the sale, the seller expressly declines to warrant the genuineness of the note, no such warranty wiU be implied. Bell v. Dagg, 60 N. Y. 528. Where the holder of a note, tainted with usury, transfers it for a valuable consideration, without indorsement and without representation as to its legality, in the absence of knowledge on his part at time of the transfer of the defect, no warranty against it will be implied, and an action cannot be sustained against him for loss sus- tained by the purchaser by reason of the defect. A scienter is essential to establish an implied warranty as to the validity of the note; and a com- plaint is insufficient against demurrer which fails to allege that defendant had knowledge of its usurious charac- ter. Littauer v. Goldman, 72 N. Y. 502. The seller of stock does not im- pliedly warrant that the corporation issuing the stock is a corporation de jure. It is sufficient, so far as any implied warranty is concerned, if it is issued by a corporation de Jaclo. Harter v. Elzroth, 12 Northeast. Rep. 129 (Ind., 1887). Nor is there any implied warranty that it is not an overissue. Bank v. Kurtz, 99 Pa. St. 344. Actions for Breach of Warranty 745 ing it, — e. g., thus], for the sum of dollars, made by one M. N., payable to [his own order, and indorsed by him], which note bore date the day of , 19 , and was payable days from date [or, a promissory note, of which the following is a copy: copy of the note], and then and there represented and warranted *^ the said note to have been made by the said M. N., and to be a valid obligation. II. That the plaintiff relied upon said warranty and pur- chased said note of the defendant, and paid him therefor the sum of dollars. III. That said note was not made by said M. N., but his name was forged thereto, and said note was spu,rious and void. [Allege special damage, as: IV. That thereafter, and when said note became due, the same was not paid by said M. N. ; that thereupon plaintiff brought an action in Court upon said note against said M. N., which action said M. N. defended upon the ground that he had not made said note, and that such proceedings were thereafter had that judgment was rendered in said court on the day of , 19 , in favor of said M. N. and against this plaintiff, for dollars, costs, which plaintiff was compelled to and did pay].^' V. That as soon as plaintiff knew of such breach of de- fendant's warranty he gave due notice thereof to the de- fendant. VI. That by reason of the premises plaintiff has been damaged dollars.*" Wherefore [etc. , demand of judgment] . 685. Of the Genuineness of Securities. "^ I. That at the times hereinafter mentioned, the defend- '* Such an allegation is supported usury, see Form 688. It was held in by facts raising an implied warranty. Shippen v. Bowen, 122 U. S. 575, that Hoe V. Sanborn, 21 N. Y. 552. if scienter is unnecessarily charged it ^ Such damages are recoverable, need not be proved. Whitney v. Bank, 45 N. Y. 303. " From the complaint in Ledwich ™ For a complaint for money paid v. McKim, 53 N. Y. 307. to defendant on a bond void for See notes to preceding form. 746 Abbott's Forms of Pleading ants were partners in business in the city of , doing business as bankers and brokers under the firm name of II. That on or about the day of , 19 , at the city of , aforesaid, the defendants sold to one S. and the said S. purchased from the defendants, a number of bonds or obligations, schedule of the numbers, dates and amounts of which is hereto annexed, marked Exhibit A, and made part of this complaint, purporting to be the bonds of the Railroad Company, and represented by said defendants to be such bonds, and to have been issued by and binding upon said railroad company, and that in con- sideration thereof, and relying upon the representations so made, the said S. paid to the defendants at the time of said purchase the sum of dollars. III. That said bonds or obhgations were never issued by said railroad company, and were not binding upon said company, as had been represented by defendants at the time of the purchase aforesaid, but had been fraudulently or unlawfully abstracted or taken from said company with- out any consideration therefor and without the knowledge, consent or authority of said company, of which fraudulent or unlawful abstraction the said railroad company gave due and public notice, so that the said pretended bonds were of no value whatever, and constituted no valid claim on said railroad company, though the notice so given was never, until after the purchase aforesaid, brought to the knowledge of said S. IV. That subsequently, to wit, on or about the day of , 19 , and immediately on being advised thereof, the said S. advised the defendants of the fact that the said bonds were worthless for the reasons aforesaid, and made demand of said defendants for the return of the purchase money aforesaid, and the interest thereon, but that no part of the same has been paid. V. That thereafter and before the commencement of this action, the said S. assigned his said claim against- the de- AcTJONS FOR Breach of Warranty 747 fendants to the plaintiff for value, who as the holder thereof under the assignment aforesaid, did, since said assignment, through his attorneys, demand of said defendants the return of the purchase money aforesaid, with the interest thereon, which was refused, and no part thereof has been paid. Wherefore [etc., demand of judgment]. 686. To Recover Money Advanced on Forged Collateral."^ I. That on or about the * day of , 19 , the said defendant was possessed of certain documents pur- porting to be first mortgage bonds of the Company, and purporting ~to have been duly issued by, and to be the valid bonds of, the said company, and pur- porting to have been duly: signed by the president and treas- urer of said company, and purporting to be impressed with the corporate seal thereof, and each of said so-called bonds so purporting to be for the payment, and of the value of dollars; that on or about the said day of ,19 , at the city of , the said defendant obtained and received of and from the plaintiff the sum of dollars, and deposited with the plaintiff, as security for the said sum, the said alleged and pretended bonds of the Company. II. That afterward, and during the month of 19 , plaintiff learned, and alleges that the said documents, purporting to be bonds of the said company, and each and every of them, were and was false, fictitious, forged and counterfeit, and were not, nor was either of them, good or valid bonds of the said company; that said so-called and pretended bonds are now in the possession of the plaintiff, and are of no value whatever, and the same are ready to be delivered up to the defendant, and would have been ten- dered to him but for the fact that, since the plaintiff dis- '^ From conjplaint in N. Y. Guar Scienter is not a necessary element, anty, etc., Co. v. Gleason, 78 N. Y. of the action. See Gabay v. Doane, 503, 7 Abb. N. C. (N. Y.) 334. 66 App. Div. 507, 73 N. Y. Supp. 38l' 748 Abbott's Forms of Pleading covered the true character of the same, the said defendant cannot be found. III. That the plaintiff alleges and claims the said de- fendant has had and received, to, and for the use of the plaintiff, the sum of dollars, at the time, and in the amount as above stated, and that he, the said defendant, on the said day, became indebted because of the premises, in the sum of dollars, and that the same remain wholly unpaid. , Wherefore [etc., demand of judgment]. 687. To Recover Money Paid for a Forged Mortgage.*' I. That on the day of , 19 , the de- fendant held a certain false, fraudulent, and forged mortgage purporting to have been given, executed, acknowledged, and delivered to her, before said date, by one H. V. and his wife, L. V., upon the following premises [describing them], in the county of , and "State of , and which had then been recorded in the register's office for said coimty, in Liber of Mortgages, on page , and pur- ported to have been given to secure the payment of an alleged bond, purporting to have been made by said H. V. to said defendant for the principal sum of dollars, and upon which bond said defendant then claimed an ac- cumulated interest of dollars, which bond and mortgage both said plaintiff and said defendant then sup- posed to be genuine; and also that said mortgage was then a good and valid first lien upon said described land for the amount mentioned, as aforesaid, and for said further sum claimed as aforesaid as interest thereon; whereas, in fact said bond and mortgage were both forged, and were without any validity whatever. II. That previous to said , 19 , one E. J. V., " Held sufficient against demurrer. warranty of genuineness; defendant's Walker v. Conant (Mich.), 8 West, knowledge of the forgery is imma- Rep. 181 terial. See Gabay v. Doane, 66 App. The real basis of the recovery is Div. 507, 73 N. Y. Supp. 381. tlie breach of the express or implied Actions for Breach of Warranty 749 claiming to be the son of said H. V., sought to borrow of plaintiff the sum of dollars; and said E. J. V. then informed the plaintiff of the existence of said forged mort- gage, held as aforesaid by defendant, but falsely claimed and pretended to plaintiff that it was a true and genuine mortgage, and a lien upon said described land, and that it must be paid. III. That said E. J. V., by his false and fraudulent repre- sentations which were then made by him, induced the plain- tiff to pay, and plaintiff in reliance on said representations, did pay to defendant, on , 19 , the amount of said false, fraudulent, and forged bond and mortgage, held by him as aforesaid, to wit, the sum of dollars, and the plaintiff on the same day received from said E. J. V., the said bond purporting to be executed by said H. V., con- ditioned to pay to plaintiff the sum of dollars, and the said mortgage in form upon said described lands, pur- porting to be executed and acknowledged by said H. V. and L. V., his wife, and running to the plaintiff. IV. That said bond and mortgage were never executed by said H. V. and his said wife, nor by either of them, and that both said bond and mortgage were and are false, fraudu- lent, and void, and the signatures thereto of H. V. and L. V. are forged and without validity. V. That said sum of dollars, which was paid as aforesaid to said defendant by said plaintiff, was paid by him without any consideration whatever, and- under a mistake of facts as aforesaid. VI. That no part of said sum has been paid, although the plaintiff has demanded the same of the defendant. Wherefore [etc., demand of judgment]. 688. The Same, the Bond and Mortgage being Void for Usury.'* [After alleging the purchase from the defendant of the ap- '"* From the complaint in Ross v. held the action was on contract for Terry, 63 N. Y. 613, where the court breach of an implied warranty. 750 Abbott's Forms of Pleading parently valid securities, in terms substantially as given in form next preceding, the complaint alleged that plaintiff had brought an action on the bond to which the obligor had inter- posed the defense of usury, that the defendant was notified but failed to interpose in defense, and that said action had termi- nated in a judgment that the bond was void for usury.] [The complaint then proceeded:] That at the time defendant sold and assigned the said bond and mortgage to plaintiff, the defendant knew that the same was usurious and void,^^ and of no value as securities, but concealed this fact from plaintiff, and falsely represented to plaintiff, that the said bond and mortgage were in all respects good, vahd and lawful instnmients, and that there was no defense, legal or equitable thereto, and that plaintiff, relying upon said representations, and knowing nothing to the contrary thereof, bought said bond and mortgage from defendant as aforesaid. Wherefore [etc., demand of judgment]. 689. Of the Amoirnt due on a Judgment Assigned. '^^ I. That on or about the day of , 19 , the defendant, for a valuable consideration, duly assigned by writing, under his hand [and seal] to this plaintiff a judg- ment which he had, on the day of > 19 , recovered in the Supreme Court, county oi [or, in the Coxu-t,] for the siun of dollars, in a certain action wherein Y. Z., defendant above named, was the plaintiff, and one M. N. was defendant. II. That said assignment contained a covenant on the part of defendant of which the followiiig is a copy: [copy of the covenant]. [Or, that the defendant did therein and thereby warrant that there was due upon said judgment, from said " Scienter is essential to establish *^ As to the character of the im- the implied warranty. Littauer v. pUed warranty upon assignment of a Goldman, 72 N. Y. 506. See, also, judgment, see Flandrow v. Ham- notes to Form 684. mond, 148 N. Y. 129, 42 N. E. Rep. 511. Actions for Breach^of Warranty 751 M. N., the sum of dollars, with interest thereon from the day of ,19 .] III. That in truth, at the time of said assignment, said judgment had been paid in full [or, in part] to the defendant, and that no part thereof [or, only the sum of dollars] was or now is due thereon. rv. That by means of the premises plaintiff was damaged dollars. Wherefore [etc., demand of judgment], 690. Against Agent of Disclosed Principal, who Warrants Without Authority. =^ I. That at , and on or about the day of , 19 , plaintiff purchased of one M. N. [specify articles and price paid;] that in the making of such sale the defendant acted as sales agent for said M. N. II. That at the time of said sale, and prior thereto, de- fendant warranted and represented that [state character of warranty as in preceding forms]. That plaintiff relied upon such warranty and representation, and was thereby induced to purchase said [goods]. III. That in making such warranty the defendant acted without authority from said M. N. rv, V and VI. [Allege breach of warranty, notice of breach to defendant, and resulting damages, as in other forms.] 691. For Services Rendered on Employment by Supposed Agent who had no Authority, or a Sham Principal.^* I. That on or about the day of , 19 , at , the defendant, acting in the name of one M. N. and ostensibly as his agent, employed and requested the " Action sustained in Luckes v. tract is made in the name of the prin- Meserole, 132 App. Div. 20, 116 cipal, rests upon an implied warranty N. Y. Supp. 350. of his authority to make it, and the ■* From N. Y. Bank Note Co. v. action is for breach of the warranty. McKeige, 31 App. Div. 188, 52 N. Y. Andrews, J., in Baltzen v. Nicolay, Supp. 597. 53 N. Y. 467. See, also, Martin v. The agent's liabiUty, when the con- Crumb, 216 N. Y. 500. 752 Abbott's Forms of Pleading plaintiff to do and perform certain services as [an architect] in and about [certain plans for a proposed building to be used and occupied by the said M. N.] and contracted with the plaintiff to do and perform said service. II. That upon such employment, the defendant repre- sented and warranted to the plaintiff that he was duly au- thorized and empowered by said M. N. to so employ the plaintiff. III. That said representations and warranty were not in fact true, and the defendant was not in fact authorized to so employ said plaintiff. [Or if there was no principal: that there was in fact no such person as M. N., and defendant was at- tempting to and was employing plaintiff in the name of a sham principal.]'"' IV. That relying upon said representations and warranty, and upon said supposed authority, the plaintiff duly per- formed said services between , 19 , and , 19 . V. That said services were reasonably worth the stun of dollars. VI. That no part of said sum has been paid, and that by reason of the premises plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand of judgment]. ^^ Fulton V. SewaU, 116 App. Div. 744, 102 N. Y. Supp. i09. CHAPTER XXIX COMPLAINTS IN ACTIONS FOR DAMAGES FOR BREACH OF CON- TRACT FOR SALE OF REAL ESTATE * PAOE 692. Against vendor, for damages for not fulfilling agreement to convey . . 753 693. Against vendor, attempting to sell as executo.r, setting forth incum- brances, because of which deed was rejected 755 694. Against purchaser, for not fulfilling agreement to purchase 758 695. Against purchaser at auction, for deficiency on resale 759 696. Averment of defendant's rescission, as an excuse for plaintiff's non- performance 760 697. Averment of false representations by the defendant, which pre- vented the plaintiff from fulfilling 761 698. By vendor, against the executor of the purchaser 762 692. Against Vendor, for Damages for not Fulfilling Agree- ment to Convey. - I. That at , and on the day of , 19 ,, plaintiff and defendant entered into an agreement in writing, under their hands and seals, a copy whereof is hereunto annexed marked "A" and made a part hereof [or, set forth substance as: whereby the defendant agreed to sell to the plaintiff — describe briefly as — the farm the defend- • For actions to recover the amount money judgment for the amount of of purchase money paid, see "Money his damages; or, he may sue for Received"; to compel specific per- damages for the breach (which is the formance, see that title; for damages theory in this chapter); or, he may for breach of covenants in deeds, see sue for specific performance, with a Chapter XXIII. • prayer in the alternative that if it ^ This is, in substance, the com- cannot be decreed he be given a plaint in Holmes v. Holmes, 9 N. Y. money judgment for his damages; 525; affirming 12 Barb. (N. Y.) 137. or, he may sue in equity to establish See, also. Form 136 and notes. and foreclose a lien on the realty for A vendee may elect to rescind the the amount of his damages. In the contract, on the vendor's failure or first three actions, he cannot claim a inability to fulfil, and sue for the lien for the amount paid on account, amount paid down and the expense See EUerman v. Hyman, 192 N. Y. incurred; or, he may sue in equity 113; Davis v. Rosenzweig Realty Co., for a rescission, asking also for a 192 N. Y. 128. 753 754 Abbott's Forms of Pleading ant then resided on, in the town of Hyde Park, in the county of Dutchess, and containing acres more or less, — for the sum of dollars per acre; and that he» would, on the day of then next ensuing, at the office of , in the city of , at twelve o'clock on said day, and, on receiving from the platntifif the sum of dollars per acre, at his own expense exe- cute, acknowledge and deliver to plaintiff a proper con- veyance in fee simple of said premises to this plaintiff free of all incumbrances; and the plaintiff agreed that he would, at the time and place above mentioned, at ihe time of the execution and delivery of such conveyance, pay to the de- fendant the sum of dollars per acre as aforesaid; * and that in said agreement the defendant acknowledged the payment by the plaintiff of dollars, in part payment of said premises; and further agreed to take plain- tiff's bond conditioned for the payment of dollars, secured by a mortgage on said premises in payment of dollars of the purchase money, said bond and mort-- gage to be payable in years from said day of , and to bear interest at per cent per annmn.] That plaintiff paid to defendant the simi of dollars on the execution of said agreement, and as part of the purchase price of said premises. II. That the plaintiff was ready, able and wilUng to fulfill the agreement on his part in all respects but defendant prior to said [contract day] notified plaintiff that he would not convey said premises to plaintiff. [Or, where a tender was necessary: * That on the said day of , 19 , at ' , the plaintiff was ready, able and willing to fulfill the agreement'on his ' See note to Form 694, para- defendant has made performance by graph I. him impossible, or has notified plain- * A tender is necessary where de- tiff beforehand that he would not livery of deed and payment of pur- convey. See Dwork v. Weinberg, 120 chase money are to be concurrent App. Div. 507, 105 N. Y. Supp. 504, acts. Abb. Brief on PL, 2d ed., and cases cited, p. 356, and cases cited. Or unless Sales of Real Estate 755 part in all respects, and attended at said [place] and then and there offered to the defendant to perform and to accept a conveyance of the premises, — and offered to defendant to execute a bond and mortgage then drawn pursuant to the agreement, and tendered the residue of the purchase money in cash,* and otherwise has duly performed all the conditions of said agreement on his part.] III. That the defendant [refused to convey the said prem- ises, pursuant to the agreement, and] could not convey a good title to the farm free of all incumbrances ^ [except as in said agreement specified]; [specify defects, as] that said farm was and still is subject to a lease made by defendant to the trustees of the school district for the erection and use of a school house, and to the inchoate right of dower of the wife of one V. B., who is still living; that the defendant has failed to perform his agreement; that defendant's said failure to perform his agreement has dama ged plaintiff dollars.'' [If plaintiff has suffered expense or lost profits in the matter, allege specially. See paragraph VIII of following form.] Wherefore [etc., demand of money judgment]. 693. Against Vendor, Attempting to Sell as Executor, Set- ting Forth Incumbrances, Because of which Deed was Rejected.* I. That iu or about the month of , 19 , one ^ If the time for performance has value of the property. See Sloan v. been indefinitely extended it is neces- Baird, 162 N. Y. 327. sary for plaintiff to allege that he If the vendor contracted in good gave defendant notice that he would faith to sell, believing he had a good elect to rescind unless defendant per- title, he is only held in nominal dam- formed within a reasonable time, ages if his title is defective and for Darrow v. Cornell, 30 App. Div. 115, that reason the contract is not ful- 51 N. Y. Supp. 828. filled. PumpeUyv. Phelps, 40 N.Y. 59. * This averment dispenses with an There is a distinction between the averment of tender where tender was character of the breach that will not a condition precedent, but only sustain an action at law for damages, a concurrent condition. Holmes v. and what wiU sustain an action in Holmes, 9 N. Y. 525. equity for a rescission. See Fossume ' Interest is not usually allowable v. Requa, 218 N. Y. 339. unless there is an established market * See notes to preceding form, as to the vendee's remedies. 756 Abbott's Forms of Pleading M. N. died at the city of , seized in fee of the prem- ises hereinafter described [allege probate of vrill and defendant's appointment as executor. See Form 64]. II. That heretofore, and on or about the day of ,19 , at the city of , the said defendant represented to plaintiff that the title to the hereinafter de- scribed premises was good and marketable, and free from incumbrances [except a certain mortgage for dol- lars], and that he had good right to convey the same as such executor; and thereupon said defendant made and delivered to plaintiff his agreement as such executor in writing, dated on said day, wherein and whereby he agreed that on the day of , 19 , he would convey said prem- ises to plaintiff free and clear of all incumbrances [except said mortgage]. III. That the property so agreed by the defendant to be conveyed to plaintiff is situate in the city, county and State of , and consists of a [city lot and a building erected thereon], and which is described in said agreement as follows, to wit [copy description]. IV. That at the time of the execution of said agreement by defendant, and in reliance upon the truth of the defendant's said representations, plaintiff agreed to pay the sum of dollars for said premises, and then and there paid to defeiidant as such executor, the sum of dollars on account of such purchase price; and plaintiff further agreed that he would pay the balance thereof on said ,19 . [V. That thereafter, by mutual agreement between plain- tiff and defendant, the time for completing said agreement was extended by several mesne extensions to the day of , 19 .] VI. That plaintiff has duly performed all the conditions on his part. That on said day of , 19 , and at the hour and place theretofore agreed upon, to wit, at the hour of o'clock in the afternoon, at the office of , in said city of , plaintiff duly tendered to defendant the residue of the purchase money to be paid Sales of Real Esiate 757 by him, and demanded a deed which would convey the fee of said premises free from all incumbrances except as aforesaid, and such as would convey to plaintiff a full, good and market- able title thereto; that thereupon defendant tendered to plaintiff a deed of said premises as such executor, which plaintiff declined to accept because defendant was then and there unable to convey as such executor, and said deed so tendered did not and would not then and there convey to plaintiff, a full, good and marketable title to said premises and the whole thereof free and clear of all incumbrances except as specified hereinbefore; that said title was and is not good and marketable, and could not be conveyed by said defendant as such executor in fee free from incumbrances except as aforesaid, under said deed as so tendered, for the following reasons : [set forth specifically the defects of title, as] (a) that at the time of his death said M. N. was indebted to sundry persons, which indebtedness is still unpaid; that there are also due from his estate and unpaid certain funeral expenses; that said premises are subject to sale for the satis- faction of all and every part thereof; (b) that there is due to the State of , from the estate of said M. N., a transfer tax, which is an existing lien upon said premises; (c) that there remain unpaid certain taxes, water rates and assessments which are existing liens upon said pretnises. VII. That plaintiff is advised by his attorney, and in good faith believes that defendant is unable to and did not in the deed so as aforesaid tendered by him convey or offer to convey to plaintiff a good and marketable title in fee simple to said premises, free and clear of all incumbrances except as specified in their said agreement. -VIII. That by reason of defendant's said representations, and his said agreement of sale, plaintiff in good faith while seeking to determine defendant's title to said premises, nec- essarily paid out and expended dollars, in having the title to said premises searched and in the procurement of an abstract of the title thereof, and dollars in com- 758 Abbott's Forms of Pleading missions for obtaining a loan of dollars thereon, amounting in all to the sum of dollars; that plain- tiff has suffered damages by reason of the default by said de- fendant in carrying out his said agreement in the said sum of dollars.' Wherefore [etc., demand of money judgment]. 694. Against Purchaser, for not Fulfilling Agreement to Pixrchase. I. That on or about the day of , 19 , at , the plaintiff and defendant entered into an agree- ment in writing under their hands and seals, of which the following is a copy: [copy of the contract] .'^'^ [Or, I. That on or about the day of , 19 , at ,, the plaintiff and defendant mutually agreed that at the hour of o'clock on the day of , 19 , at the office of M. N., Esq., in the city of , the plaintiff would sell to the defendant aud on said day deliver to him a good and sufficient conveyance thereof, and that the defendant would then purchase from the plaintiff (briefly designate the premises), in the town of , county of , and State of , for dollars, payable — specify terms.] " II. That on said day of , 19 , at said time and place appointed, to wit [specifying it], the plaintiff was ready and willing to complete said agreement on his part and then and there tendered ^^ to the defendant a good " Place V. Dudley, 41 App. Div. to sell. Booth v. Milliken, 127 App. 540, 58 N. Y. Supp. 671; Manpai v. Div. 522, 111 N. Y. Supp. 791. Jackson, 139 App. Div. 524, 124 N. Y. The premises must be described Supp. 220. so as to be capable of identification, Profits on resales, or commissions or the agreement is not enforcible. paid or incurred thereon, cannot be Id. included unless specially alleged. " See preceding note. Shipman Mortgage, etc., Co. v. '^ Tender of deed must be averred Sussman, 147 App. Div. 25, 131 where its delivery and payment of N. Y. Supp. 645. price are concurrent acts. Abb. '" The agreement as pleaded must Brief on Pi., 2d ed., p. 356, and show that defendant bound himself cases cited; Soper v. Gabe, 55 Kan. to buy, as well as that plaintiff agreed 646. Sales of Real Estate 759 and sufficient deed of the said premises and demanded pay- ment of the said simi of dollars [or otherwise, accord- ing to the contract], and plaintiff otherwise duly performed all the conditions thereof on his part. III. That the defendant neglected and refused to comply with the terms of the agreement on his part, and wholly failed to accept said deed and pay the purchase money, to the damage of the plaintiff dollars. " Wherefore [etc., demand of judgment]. 695. Against Ihirchaser at - Auction, for Deficiency on Resale." I. That on the day of , 19 , plaintiff was the owner in fee of lots of land in the ward of the city of New York; that on said day plaintiff put said lots up for sale by auction, at the Exchange, in the city of New York, and duly announced before the com- mencement of the sale, as a part of the terms of sale, that [ten] per cent of the purchase money was, on the day of sale, to be paid by the purchaser to the plaintiff, and to the auc- tioneer the auctioneer's fee of dollars on each avenue lot, and dollars on each street lot; and that if any purchaser failed to make such payments on the day of sale, the lots purchased by him would be [thereupon] re- " As a general rule the measure of such payment deducted from the damages in such action is held to be amount of damages awarded. Hay- the difference between the price den v. Pinchot, supra. agreed to be paid for the land and If the vendor is not the owner, but its market value at the time the con- has a contract of purchase, the tract was broken. Hayden v. Pin- measure of damages is the difference chot, 172 App. Div. 102 158 N. Y. between what it would cost the Supp. 215; Kuntis v. Schnugg, 99 plaintiff to acquire the property and App. Div. 191, 90 N. Y. Supp. 933. the price defendant agreed to pay, While the vendee, having made de- not exceeding, however, the differ- fault, cannot recover back any part ence between the fair market value of the sum paid by him on the con- and such agreed price. Booth v. tract (Lawrence v. Miller, 86 N. Y. Milliken, supra. 131; Higgins v. Eagleton, 155 id. 466), '^ Adapted from the complaint in in an action by the vendor for dam- Talman v. Franklin, 3 Duer (N. Y.), ages the vendee is entitled to have 395. 760 Abbott's Forms of Pleading sold, and he be charged with the deficiency, as well as all expenses thereof. II. That at the said sale the defendant bid in and became the purchaser of lots [describe the particular lots purchased], for the price of dollars for each lot. III. That the said defendant did not, on the day of sale, or at any other time, pay ten per cent, or any part of the price bid, or the purchase money, or auctioneer's fees, or any part thereof. IV. That in consequence of such neglect of payment [and after due previous notice given to the defendant of the time and place of resale, and that he would be charged with the deficiency], the said lots were put up at auction for resale, and resold at the best price offered, viz., at the price of dollars for each lot, making a total deficiency of dollars upon the said lots. Wherefore [etc., demand of judgment]. 696. Averment of Defendant's Rescission, as an Excuse for Plaintiff's Non-performance. '^ That on or about the day of , 19 , and before the time for the plaintiff to perform the conditions of said agreement on his part, the defendant gave notice [in writing] to the plaintiff ^® [that he would not take the said land and would not complete his said agreement]; and the defendant thereby abandoned the agreement, and ever since has wholly failed to perform it, although plaintiff was at all times ready; able and willing to complete said agreement on his part, to the plaintiff's damage" dollars. " This form is supported by North N. Y. Supp. 791; Abb. Br. on t). Pepper, 21 Wend. (N. Y.) 636. PI., 2d ed., p. 361; McPherson v. '« An averment that one party be- Walker, 40 111. 371; Shaw v. Republic fore the day, refused to perform, Life Ins. Co., 69 N. Y. 286. should show that the refusal was But no immediate action for dam- addressed to the other. Traver t;. ages for non-performance will lie, and Halsted, 23 Wend. (N. Y.) 66. plaintiff must allege and show his An averment of tender of perform- readiness to perform, or that because ance is doubtless excused. Booth v. of some act of defendant he was Milliken, 127 App. Div. 522, 111 prevented. Booth w. Milliken, supra. Sales of Real Estate 761 697. Averment of False Representations by the Defendant, which Prevented the Plaintiff from Fulfilling. '' That on or about the day of ) 19 , and before the time for performance on the part of the plaintiff had arrived, the defendant, for the purpose of preventing the plaintiff from being ready to receive the said , and pay therefor, falsely represented to the plaintiff that he had sold said to other persons, and that, relying on said representations, and solely by reason thereof, the plaintiff did not provide the means, and was not prepared to receive and pay for the same as he otlierwise would have done. 698. By Vendor, against the Executor of the Purchaser,'* I. That on or about the day of , 19 , the plaintiff was seized in fee of the hereinafter described prem- ises; that on said day plaintiff and one M. N. [testator] entered into a contract in writing, under their respective hands, of which the following is a copy: [copy of the agreement]. II. That said [testator] died on or about the day of ,19 , leaving a last will and testament, by which he devised the said property as follows: [set forth devise]. III. [Allege probate of will 'and defendant's appointment as executor as in Form 64-] IV. That on or about the day of , 19 , the plaintiff offered to the defendant to convey the premises to him, and fully to perform said contract on his part, and then and there tendered a good and sufficient deed of the aforesaid premises, and requested the defendant to perform said contract on his part and pay the jmoney then due thereon. V. Then the defendant then wholly refused so to do, and has not performed the contract nor paid any part of said sum, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. " This form is supported by Cran- " This form is, in substance, taken dall V. Clark, 7 Barb. (N. Y.) 169, and from the case of Brinkerhoff v. Olp, Clark V. CrandaU, 27 id. 73. 35 Barb. (N. Y.) 27. CHAPTER XXX COMPLAINTS IN ACTIONS AGAINST AGENTS, BAILEES, ETC., FOR UNLIQUIDATED DAMAGES I. Agents. page 699. Against an agent for not using diligence to sell goods 764 700. The same, for carelessly selling to insolvent 765 701. The same, for taking worthless papers 765 702. The same, for breach of instructions as to sale 766 703. The same, for failing to properly apply collections made . . . 766 704. Against an auctioneer, for selling below the seller's limit .... 768 705. Against the same, for selling on credit 768 706. Against an auctioneer or agent, for not accounting 769 707. Against a bank, for neglecting to present or protest a note lodged with it for collection 769 708. The same, for delay in presenting check deposited to plain- tiff's credit 770 II. Bailees, in General. 709. Against a mere receiptor, for refusal to return 771 710. Against bailee for hire (Safe Deposit Company), for loss of property 772 711. Against same; for not taking care of and returning goods. . . 773 712. Against a bailee to perform work, for not using due care and skill in repairing 774 713. The same, for not returning the goods 774 714. For damages occasioned from improperly loading a cargo. . . 775 715. Against the hirer of property, for not taking care of same. . 775 716. The same, injury to plaintiff's horse 776 717. For injury to goods in cold storage 776 III. Common Carriers. (a) Of Passengers and Baggage. 718. General allegations of defendant's capacity as common carrier; of plaintiff's becoming a passenger; of delivery of baggage 777 719. For loss of passenger's baggage 778 720. The same, for goods contained in trunk, but lost or stolen en route 779 721. For loss of passenger's personal effects retained in his cus- tody 779 722. Against sleeping car company, for loss of personal effects . . 780 762 Against Agents, Bailees, Etc. 763 I'AOE 723. Against baggage transfer company for non-delivery 781 724. By passenger for breach of contract to carry; ejection of pas- senger 782 725. The same, for failure to protect passenger 783 726. Against steamboat line, for injuries to passenger 784 727. Against same, for loss of property from stateroom 785 (b) Of Freight. 728. Allegation of defendant's capacity as common carrier 786 729. General allegations: defendant's capacity as a carrier en- gaged in interstate commerce; delivery of goods for tran- sportation; presentation of claim 786 730. Allegation of defendant's liability for act of connecting carrier 787 731. For loss of goods; against initial carrier on interstate ship- ment 788 732. Delivery in violation of terms of bill of lading 789 733. Refusal to obey direction for stoppage in IransUu 790 734. For delay in delivery 791 735. The same, for failure to deliver perishable property within a reasonable time, with special damage 792 736. The same, shipment in refrigerator car, and failure to pre- serve *■ . . . 793 737. Allegation of injury after arrival at destination 794 738. Against carriers by water, for not regarding notice to keep dry 79") 739. The same, for loss of freight 796 740. The same, allegation of loss in unloading and delivery 79/" 741. Against railroad company for failure to furnish cars 797 742. The same, for refusal to receive goods for transportation .... 798 743. Against a common or private carrier on special contract, for loss of goods 7^9 IV. Innkeepers. 744. Against innkeeper, for loss of trunk or contents S(U 745. The same, for loss of jewelry 802 746. Against innkeeper, who is also proprietor of bathing-house, for loss of pocket-book 803 747. For refusal to lodge traveler 804 748. For failure to protect guest 804 V. Pledgees. 749. Against pledgee, for loss of pledge 806 750. For injury to pledge 807 VI. Telegraph Companies. 751. Against telegraph. company, for failure to deliver message. . 807 752. The same, another form for failure to deliver, charging knowl- edge by defendant of urgent character of message 812 764 Abbott's Forms of Pleading PAGE 753. Against telegraph company, for negligence in delivering a message twice 813 754. The same, for delay in delivering a message containing a conditional order 815 755. The same, under Indiana statute 816 756. To recover statutory penalty for delay in transmission of message, under Georgia statute 817 757. The same, delay in delivering, causing mental anguish 818 758. The same, by husband for injuries to wife's feelings; allega- tion of damage 820 759. The same, for mistake in transmission of message 820 VII. Warehousemen. 760. For loss of goods 824 761. For injury to goods, by neglect to obey special instructions 826 762. For refusal to deliver 826 763. For not forwarding goods according to agreement '. 826 I. AGENTS 699. Against' an Agent for not Using Diligence to Sell Goods. I. That on or about the day of , 19 , at , the plaintiff employed the defendant as his sales agent, at a commission of per cent, to be paid to the defendant upon all sales, [or, state the character of compensation promised], to sell and dispose of* goods of the plaintiff, to wit [very briefly designate them], of the value of dollars, and thereupon defendant received the same from plaintiff for that purpose, and agreed to endeavor to sell the same. II. That the defendant did not use due diligence in en- deavoring to^sell or in selling said goods,t but unreasonably delayed making any effort or endeavor so to do for months after said goods were so received; that by reason of such delay the said goods became much deteriorated in value, and the plaintiff incurred dollars expenses in warehousing the same; that on or about the day of , 19 , the defendant sold the said goods for the sum of dollars, which was dollars less than Against Agents, Bailees, Etc. 765 they would have produced had defendant made proper and due endeavor to sell the same when so received by him.^ III. That by reason aforesaid plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 700. The Same, for Carelessly Selling to Insolvent. I. As in preceding form to the *, continuing: but negUgently and carelessly sold the said [goods] for the plaintiff to one M. N., of , who was then in embarrassed circum- stances and wholly insolvent, as defendant then well knew, or could readily have ascertained by due inquiry, and with- out receiving the pri'be therefor, or any part thereof, or tak- ing security for the payment thereof. II. That by reason aforesaid plaintiff has wholly lost said goods, and is wholly unable to collect any portion of the price thereof, or to recover their value, to his damage dollars. Wherefore [ete., demand of judgment]. 701. The Same, for Taking Worthless Paper. I. [As in Form 699, inserting at the *] for cash, or an ap- proved bill or note at days or less, and not otherwise [or, according to the fact], II. That the defendaiit did not use due care and diligence in selling the same, but negligently sold said goods for a note to plaintiff's order for dollars made by one M. N., who was then utterly insolvent and financially em- barrassed; that defendant knew, or by reasonable inquiry said defendant could have ascertained, the fact of M. N.'s insolvency; that said note became due on the day of , 19 , but was not paid, and is worthless and ' Where defendant had agreed to suiting damage from failure to sell, sell plaintiff's property within a cer- Gause v. Com. Tr. Co., 100 App. tain period, a complaint was held in- Div. 427, 91 N. Y. Supp. 847. sufficient which failed to show re- 766 Abbott's Foems of Pleading of no value; that by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 702. The Same, for Breach of Instructions as to Sale. I. That on or about the day of , 19 , at , plaintiff employed and requested defendant to sell hogsheads of sugar of the value of dol- lars^ for the plaintiff and that plaintiff delivered the same to the defendant who received them for that purpose. [II. That in consideration of such employment the de- fendant promised the plaintiff to use due diligence in selling the same for the plaintiff, and in obeying the directions of the plaintiff in regard to the sale thereof.] ' III. That the plaintiff afterwards, on or about the day of , 19 , directed the defendant to sell said sugar at the price of ,^ and not less, but the de- fendant thereafter, in disobedience and disregard of said directions, sold said goods for the siun of dollars. IV. That by reason of the premises plaintiff has been damaged dollars.'' Wherefore [etc., demand of judgment]. 703. The Same, for Failure to Properly Apply Collections Made. [From complaint in Tuers v. Tuers, 16 Abb. N. C. (N. Y.) 464.] ' - The allegation of value and of N. Y. 542; Laverty v. Snethen, 68 selUng price ought to correspond, or, N. Y. 522. at least, the selling price should not Nor where the defendant brokers exceed the alleged value. have no property in pledge for the ' This paragraph, although usual, plaintiff. Smith «;. Craig, 151 App. is of doubtful materiality as involving Div. 648, 136 N. Y. Supp. 423, aff'd merely a statement of defendant's 211 N. Y. 457. legal duty. * The court held that the gist of the • Conversion will not lie on these action was for breach of contract, and facts. Vroom v. Sage, 100 App. Div. to recover damages therefor. 285, 91 N. Y. Supp. 456, aff'd 184 Against Agents, Bailees, Etc. 767 I. That plaintiff is the owner of certain real estate at , in the county of , consisting of [briefly describing it], II. That prior to the times hereinafter mentioned plain- tiff appointed and constituted the above-named defendant his agent, to collect the rents of said premises, and plaintiff agreed to pay, and has paid defendant [five] per cent on the amount so collected, as his compensation during the years hereinafter mentioned. III. That it was further agreed between plaintiff and defendant that defendant should pay all taxes and water rents upon said premises, and keep the same in repair, out of the rents collected by him as such agent. IV. That defendant collected the rents of said premises during the years hereinafter mentioned. V. That the tax upon said premises for the year 19 , amounting to dollars, was confirmed on , 19 , and is now due and unpaid, with interest from said date, and that the water rent on said premises for said year, amounting to dollars, is now due and unpaid, with interest from , 19 . [Here followed similar allegations as to the taxes in subsequent years.] VI. That defendant has neglected to pay each and every of said taxes and water rents, aggregating without the accrued interest thereon the sum of dollars, but out of the sums collected by him as such agent he has re- tained and misappropriated the amount of such taxes [and that the defendant has wrongfully converted and appro- priated to his own use each and every of said sums].® VTI. That a demand for said sums has been heretofore made upon said defendant and that he has refused, and still refuses, to pay over the same. * This bracketed allegation was in dependent upon the' theory of action the precedent, and raised the conten- being conversion, the pleader will tion as to theory of action. Inas- only be embarrassed by including much as the remedies against an such allegations, agent, or other fiduciary, are not 768 Abbott's Forms of Pleading VIII. That by reason of the premises plaintiff has been damaged dollars.^ Wherefore [etc., demand of judgment], 704. Against an Auctioneer, for Selling Below the Seller's Limit.* I. That on or about the day of , 19 , at , the defendant was engaged in the business of an auctioneer; that on said day, in consideration that the plain- tiff would deliver to him [describe the goods], to be sold by him for the plaintiff for a commission of per cent, defendant undertook, as such auctioneer, at the time and place aforesaid, to sell the same,* at and for the siun of at least dollars, and not to sell them for any lesser sum. II. That the plaintiff thereupon delivered said goods to the defendant and defendant received them for that purpose. III. That the defendant, without the knowledge or con- sent of the plaintiff, sold said goods for less than the sum to which he was so limited as aforesaid, to wit, for dollars, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 705. Against the Same, for Selling on Credit.' I and II. [As in preceding form, substituting at the *] for cash, and not otherwise. III. That the defendant afterwards sold said goods on credit without the plaintiff's consent, to persons [wholly insolvent and unable to pay therefor and] who have not paid plaintiff therefor, whereby the plaintiff has lost the ' If plaintiflE has paid the taxes an becomes immediately responsible to allegation of payment may be in- his principal for the entire amount of eluded. * the debt. Parsons v. Martin, 11 ' This form is supported by Wolfe Gray, 115; Walker v. Smith, 4 Dall. V. Luyster, 1 Hall (N. Y.), 146. 389; Delafield v. Illinois, 26 Wend. ' ' If an agent or factor authorized to (N. Y.) 192. sell for cash only, sells on credit, he Against Agents, Bailees, Etc. 769 value of said goods, to wit, the sum of dollars, to his damage dollars. Wherefor? [etc., demand of judgment]. 706. Against an Auctioneer or Agent, for not Accounting."" I. [Allege agency, as in preceding forms, or thus:] that heretofore [and on or about the day of , 19 , ], the plaintiff shipped from , consigned to the defendant, as his agent, at , for sale, [very briefly designate the goods], of the value of dollars; that defendant received said consignment, at plaintiff's request, and undertook to make sale thereof. II. That defendant thereafter sold the same for account of the plaintiff. III. That sufficient time has elapsed therefor, and plain- tiff has demanded that defendant account to him for such sale and pay to him the proceeds thereof, less his reasonable charges; but that defendant has neglected and refused, and still neglects and refuses, to render to the plaintiff an account of such sale, or of the proceeds thereof, and has also neg- lected and refused to pay over the proceeds to the plaintiff, to his damage dollars. Wherefore [etc., demand of judgment]. 707. Against a Bank, for Neglecting to Present or Protest a Note Lodged with it for Collection." I. [For allegatio7i of defendant's incorporation, see Forms 44 cind 154-] II. That on or about the day of , 19 , the plaintiff was a depositor in defendant bank, and on or about said day deposited therein a negotiable promissory note [or, bill of exchange], of which the following is a copy [copy of note with indorsements]. "" See Form 1112, Endnote hereto. relation of bank and depositor of '» This is, in substance, the com- negotiable paper, Riverside Bank v. plaint in Bank of Utica v. Smedes, .3 Woodhaven, etc., Co., 34 App. Div. Cow. (N. Y.) 662, 20 Johns. 372. 359, 54 N. Y. Supp. 266; McBride v. See, as to general discussion of 111. Nat. Bank, post 770 Abbott's Forms of Pleading III. That the defendant, in consideration thereof, under- took to use due diligence in presenting said note at its ma- turity and demanding payment thereof, from the makers [or, if it is a bill of exchange, from the acceptors] ; and in case of default in payment thereof, according to its tenor, [to cause the same to be duly protested for non-payment, and] to cause due notice to be given to M. N., the indorser [or, drawer] thereof, whereby to render him liable as such in- dorser thereon. " IV. That the defendant * did not present said [note] for payment on the day of its maturity, [or, did not give notice to the said— indorser — of presentation of said note and its non-payment] ^^ but negligently failed and omitted to do so, by reason whereof said [indorser] was not rendered liable but was wholly discharged from any obligation upon said note ; ^' that said note has not been paid ; [that said maker is insolvent — or otherwise, allege facts preventing collection],''^'^ that by reason of the premises plaintiff has wholly lost the moneys due on said note, to the plaintiff's damage dollars. ^^ Wherefore [etc., demand of judgment]. 708. The Same, for Delay in Presenting Check Deposited to Plaintiff's Credit. ^« I. [Allege defendant's corporate capacity, as in Form 15^.] " That such is the contractural of the note. Howard v. Bank of duty of the bank, see. McBride v. Metropolis, 95 App. Div. 342, 88 III. Nat. Bank, 138 App. Div. 339, N. Y. Supp. 1070. 121 N. y. Supp. 1041; ano. dec, 163 '* If the indorser is shown by the App. Div. 417, 148 N. Y. Supp. 654. bank to have been insolvent, plain- The indorsement and delivery to tiff is entitled to nominal damages the bank furnishes the consideration. only. Howard v. Bank of Metropolis, Hitchcock V. Bank of Susp. Bridge, 115 App. Div. 326, 100 N. Y. Supp. 57 App. Div. 458, 68 N. Y. Supp. 234. 1003. '2 See Brill v. Jeff. Bank, 159 App. If plaintiff brought an unsuccess- Div. 461, 144 N. Y. Supp. 539. ful action against the indorser, he " McBride v. 111. Nat. Bank, supra, can only be allowed the expense in- '* It is held in New York that it is curred upon showing that it was in- not necessary for plaintiff to prove ' duced by a request or representation the maker's insolvency, and that of the defendant in this action. Id. prima facie the damage is the amount '* From the complaint in Martin v. Against Agents, Bailees, Etc. 771 II. [As in Form 707, alleging that plaintiff deposited a check, and describing it,] III. That in consideration thereof, defendant undertook to present said checlf with due diligence to [the drawee] for payment, and to demand payment thereof, and to use due diligence for its collection for plaintiff's account. IV. That defendant did not carry out its said agreement and undertaking, and failed and neglected to present said check to the said [drawee] with due diligence; on information and belief, that defendant did not present said check to said [drawee] until the lapse of days after its said de- posit in defendant bank, while in the due and regular course of business said check could have been presented within days after such deposit. V. [Allege resulting damages, as:] On information and belief that said [drawer] had sufficient funds upon deposit with said [drawee] subject to the payment of said check to have fully paid the same; that said [drawee] was open, and doing business until the day of , 19 , and honoring and paying checks drawn upon it, but that on the morning of the day of , 19 , said [drawee] failed and suspended payment, and said check was refused payment when the same was presented thereafter. VI. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. II. BAILEES, IN GENERAL 709. Against a Mere Receiptor for Refusal to Return." I. That on or about the day of , 19 , Home Bank, 160 N. Y. 190, aff'g 30 check, the trial court was held to have App. Div. 498, 52 N. Y. Supp. 464, discretionary power to permit an where the court sustained a recovery amendment of the compkint to allow for plaintiff. When it appeared, upon a recovery for the money received; the trial, that plaintiff had been noti- also held that the theory presented fied of the non-payment of the check, by the pleading was damages for and in ignorance of the bank's delay breach of an implied contract, in presenting it, had taken up the " These allegations state a cause of 772 Abbott's Forms of Pleading at , plaintiff at defendant's request delivered to defendant certain goods, to wit [briefly describe them] which defendant promised to return to plaintiff upon demand therefor. II. That on or about the day of , 19 , the plaintiff duly demanded of the defendant that he return said goods to plaintiff, but defendant has failed and refused so to do. III. That said goods were and are of the value of dollars, and that by reason of the premises plaintiff has been damagfed dollars. Wherefore [etc., demand of judgment]. 710. Against Bailee for Hire (Safe Deposit Company) for Loss of Property.'^ I. [Allege defendant's corporate capacity, as in Form 44, continuing:] and engaged in the operation of safe deposit vaults, wherein for hire it rented separate safe deposit boxes, and safes, to customers, for deposit therein for safe keeping of such valuables as he might desire [or otherwise according to the fact]. II. That on or about the day of , 19 , defendant, in consideration of dollars [agreed to be] paid to it by plaintiff, rented to plaintiff for the term of , one of said safe deposit boxes; that thereafter plaintiff deposited therein [state character and value of arti- cles lost]. III. That it became the duty of defendant company to safely and securely keep said [articles] in said safe deposit box. / action .upon express contract, not for App. Div. 68, 50 N. Y. Supp. 974. conversion. Hicks v. Monarch Cycle See, also, Roberts v. Stuyvesant Safe Co., 68 App. Div. 134, 74 N. Y. Supp. Dep. Co., 123 N. Y. 57; ClafUn v. 80, rev'd on ano. ground, 176 N. Y. Meyer, 75 id. 260. HI. Sec, aso, McKillopt). Reich, 76 Proof that plaintiff had placed App. Div. 334, 78 N. Y. Supp. 845. property within the safe, and that it " Adapted from complaint In Lock- had been taken therefrom, makes out wood V. Manh. Storage, etc., Co., 28 a prima facie case. Against Agents, Bailees, Etc. 773 IV. That on or about the day of , 19 , plaintiff applied to the defendant for the return of said [articles], but the same had been theretofore taken and stolen from said safe deposit box, and defendant has failed to return them to plaintiff although due demand has been made therefor. V. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 711. Against Same, for not Taking Care of and Returning Goods. i» I. That on or about the day of ; 19 , at , the plaintiff delivered to the defendant a quan- tity of merchandise [or very briefly designate the articles], of the value of dollars, which the defendant undertook to safely and securely keep for the plaintiff for a compensa- tion of dollars, and to return and redeliver to the plaintiff on request. II. That the plaintiff duly performed all the conditions thereof on his part; and on or about the day of , 19 , requested the defendant to redeliver the same. III. That the defendant, not regarding his promise and undertaking, did not take due care of or safely keep the said goods for the plaintiff, nor did he, when so requested, or at any time afterwards, deliver the same, or any part thereof, to the plaintiff; but, on the contrary, the defendant so neghgently and carelessly cared for the said goods, that through the carelessness and negligence of the defendant, the goods were stolen and wholly lost to the plaintiff, to his damage dollars. Wherefore [etc., demand of judgment]. " See notes to preceding form. ing to render them liable therefor, but Where an association for the exhi- without alleging negligence or a guar- bition of goods, received the plaintiff's anty, showed no cause of action. Such goods into their buUding for exhibi- associations are not liable as common tion, but the building not being water- carriers. Davison v. Assoc, 9 How. tight, the goods were injured by rain Pr. (N. Y.) 226; Jones v. Morgan, 90 beating in, hM, that a complaint seek- N. Y. 4, 43 Am. Rep. 131. 774 Abbott's Forms of Pleading 712. Against Bailee to Perform Work, for not Using Due Care and Skill. I. That at the times hereinafter' mentioned, the defendant was [a watchmaker or jeweler] at ; that the plaintiff on or about the day of , 19 , delivered to defendant [a watch] of the plaintiff, of the value of dollars, to be repaired by the defendant, for a considera- tion to be paid by plaintiff. II. That' the defendant received said watch for such pur- pose, and undertook said emplojrment, and undertook to use due care and skill in repairing said watch, and to take due care thereof while in his possession, and to redeUver the same to the plaintiff on request. III. That the defendant did not take due or proper care of the said watch while in his possession, whereby the said watch was permitted to become broken and injured; and that defendant did not use due care or skill in repairing the said watch, but did his work in such careless, unworkmanlike and unskillful manner, that said watch was injured and deteriorated in value, and the works thereof were greatly damaged, to the plaintiff's damage dollars.^" Wherefore [etc., demand of judgment]. 713. The Same, for not Returning the Goods.^^ I and II. [As in preceding form.] Ill, That after a reasonable time for [the repair of said watch,] and on or about the day of , 19 , the plaintiff requested the defendant to redeliver the same; but defendant has neglected and refused and still neglects and refuses so to do, to the plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 2" The measure of damages is the '' Failure to return raises a pre- original value less the present value. sumption of negligence. Polak v. Plaintiff may not abandon the article O'Brien, 114 App. Div. 366, 100 N. Y. to defendant, as in conversion. See Supp. 385. Emmerich v. Chegnay, 46 Misc. 456, 92 N. Y. Supp. 336. Against Agents, Bailees, Etc. 775 714. For Damages Occasioned from Improperly Loading a Cargo. I. That on or about the day of , 19 , at , the plaintiff, at the request of the defendant, caused to be delivered to him [very briefly designate the goods], the property of the plaintiff, of the value of dollars, which the defendant undertook to safely and securely load on board a certain vessel, at , for the plaintiff, for a reasonable compensation to the said defendant in that be- half; and the defendant then received the goods for that purpose. II. That the defendant, not regarding his said agreement, afterwards, by himself and his servants, so carelessly and improperly loaded the said goods on board the said vessel, that by their negligence and improper conduct in loading the same, the goods were broken and injured, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 715. Against the Hirer of Property, for not Taking Care of the Same. I. That on or about the day of , 19 , at , the defendant hired and received of the plaintiff certain goods [very briefly designating them], of the. value of dollars, for the period of one year then next en- suing, at the sum of dollars, and promised and agreed with plaintiff to use the same in a careful and reasonable manner during said term. II. That the defendant, not regarding his said agree- ment, did not take due or proper care of the said goods, or use the same in a reasonable or proper manner during the said time, but wholly neglected and omitted to protect them from harm, and took so little care of the said goods that they became broken and otherwise injured and deteri- orated in value, to the plaintiff's damage dollars. Wherefore [etc., demand of judgmeni\. 77(3 Abbott's Forms of Pleading 716. The Same, for Injury to Plaintiff's Horse.^^ I. That on or about the day of , 19 , at , the defendant hired for the purpose [of driving] and received from the plaintiff [or, defendant undertook for hire to care for] a horse of the plaintiff, of the value of dollars. II. That while said horse was exclusively in the possession of said defendant,^' it died [or, became lame and hurt, and has remained so ever since, and plaintiff believes will per- manently so remain, and is thereby greatly injured in value], to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 717. For Injury to Goods in Cold Storage.^^ I. [Defendant's corporate capacity in proper case, as in Form 44-] That at all times hereinafter mentioned de- fendant was engaged in the business of keeping [furs and skins] and other articles in cold storage, for hire. II. That on or about the day of , 19 , plaintiff dehvered into the care, custody, control and pos- session of the defendant certain [bales of furs and skins] in good condition; and in consideration of such delivery, and of the promise of plaintiff to pay defendant such custom- ary and reasonable charge as defendant should demand for its services, defendant promised and agreed to take said [bales of furs and skins] into its care, custody, control and possession and keep them until they should be called for by plaintiff, and at all times to keep_them in such proper stor- 2^ The burden is on defendant to return in damaged condition. Ruth- lihow proper care. Campany v. Bray- erford v. Krause, 55 App'. Div. 210, ton, 171 App. Div. 63, 166 N. Y. 66 N. Y. Supp. 781. Supp. 1010; Selesky v. VoUnier, 107 ^' A bailment to two or more makes App. Div. 300, 95 N. Y. Supp. 130; each one prinm facie liable. Ruther- Powers V. Jughardt, 101 App. Div. 53, ford v. Krauso, sujrra. 91 N. Y. Supp. 556; Snell v. Cornwell, -^ From complaint in Herzig v. 93 App. Div. 136, 87 N. Y. Supp. 1. N.. Y. Cold Storage Co., 190 N. Y. It is enough for plaintiff to allege 511, where a judgment for plaintiff and show delivery to defendant and was affirmed, but no question of pleading directly raised. Against Agents, Bailees, Etc. 777 age and refrigeration as properly to. preserve them in good condition." III. That in violation of said agreement, and without fault on the part of the plaintiff, defendant wholly neglected, omitted and refused to place said [furs] in such proper stor- age as to properly preserve them in good condition, but on the contrary [state, so far as may be known] defendant placed them where they became soaked through with water and ammonia, and in a place where they became rotten and mouldy, whereby some of said furs and skins were utterly ruined and other greatly damaged; that plaintiff necessarily expended the sum of dollars in attempting to save as many of said [furs and skinsj-as was possible.^* IV. That annexed hereto marked "A" and made part thereof is an itemized statement of the number of said [furs and skins] utterly ruined, and the value thereof, and the number damaged and the amount of the damage thereto, and the items of such necessary expense incurred by plaintiff. V. That by reason of the premises plaintiff has been dam- aged dollars. Wherefore [etc., demand of judgment.] III. COMMON CARRIERS (a) Of Passengers and Baggage 718. General Allegations of Defendant's Capacity as Com- mon Carrier of Passengers and Baggage; of Plain- tiff's Becoming a Passenger; of Delivery of Baggage. I. That at all the times hereinafter mentioned, defendant was, and now is, a domestic [foreign] railroad corporation organized and existing under the laws of the State of , ^* This is the implied agreement. have been caused by excessive teni- Sutherland v. Albany Cold Storage, perature. Ballston Refrig. Co. v. etc., Co., 171 N. Y; 269. Eastern States Refrig. Co., 142 App. «> The proof of negligence may be Div. 135, 126 N. Y. Supp. 857, aff'd entirely circumstantial, e. g., by show- 206 N. Y. 705. ing that the conditions could only 778 Abbott's Forms of Pleading and operating lines of railroad between , in the State of , and , in the State of , and was and is engaged as a common carrier in the transpor- tation of passengers and baggage; that at said [place of de- livery of baggage] defendant maintained a regular passenger and baggage station. II. That on about the day of , 19 , plaintiff was a passenger upon defendant's train ^' [known as No. and] scheduled to leave at o'clock, and had duly obtained and paid for a ticket entitling him to passage thereon. [If action is based upon loss or injury to baggage, allege in- stead of preceding paragraph: - II. That on or about the day of 19 , plaintiff purchased of defendant a regular passenger ticket, for transportation between said and the City of , in the State of , and then and there delivered to defendant, and defendant accepted from plaintiff, pieces of baggage consisting of [two trunks] containing wearing apparel and other personal property belonging to plaintiff and necessary and proper for his use and comfort in and about his journey, which said baggage was duly checked by defendant to said [d^siinar tion] and baggage checks [Numbers ] were duly issued and delivered to plaintiff by defendant [and plaintiff there- upon paid to defendant its charges for excess baggage thereon]. 719. Against Railroad Company; for Loss of Passenger's Baggage.2* I. [As in Form 718.] II. [As in Form 718.] " It is wholly insufficient to raise 176 App. Div. 547, 163 N. Y. Supp. the relation of carrier and passenger 621. to merely allege that plaintiff "was '''Adapted froln complaint in rightfully and lawfully" upon the Gardiner v. N. Y. Central, etc., R. train or boat. Van Loon v. Smith, Co., 201 N. Y. 387, aff'g 139 App. Div, 17, 123 N. Y, Supp. 865. Against Agents, Bailees, Etc. 779 III. That plaintiff immediately proceeded upon his journey to said [destination], and upon his arrival and upon several occasions thereafter within a reasonable time plain- tiff has duly demanded of defendant delivery to him of his said baggage, and has duly tendered his baggage checks to defendant for surrender upon delivery of said baggage; that defendant has failed and refused to deliver plaintiff's said trunks, or their contents, or any part thereof, and the same have been wholly lost to plaintiff. IV. That said trunks and their contents were of the value of dollars [whereof a particular statement of such contents and value is hereunto annexed marked Schedule A and made a part of this complaint], and plaintiff by reason aforesaid has suffered damage in said sum of dollars. Wherefore [etc., demand for judgment]. 720. The Same; for Goods Contained in Trunk, but Lost or Stolen en Route. I. [As in Farm 718.] II. [As in Farm 718.] III. That said trunks were thereafter received by the plaintiffs at their destination aforesaid, [and the charges for their transportation duly paid]; that each of said three trunks had been broken open since their delivery to the defendant, and while said defendant was in possession thereof, and numerous articles [a list whereof is hereunto annexed and made part of this complaint], of the aggregate value of dollars, unlawfully taken therefrom, to plaintiffs' damage dollars.^^ Wherefore [etc., demand of judgment]. 721. For Loss of Passenger's Personal Effects, Retained in His Custody.^" / and II as in Form 718. ^ See Bridge v. N. Y. Central R. "" Adapted from the complaint sus- Co., 88 Misc. 35, 150 N. Y. Supp. tained in Knieriem v. N. Y. Central 146, as to measure of damage recov- R. Co., 109 App. Div. 709, 96 N. Y. erable for delay in delivery. Supp. 602. The court held that as 780 Abbott's Forms of Pleading III. That while on said train as such passenger, and when it had reached a point near , defendant so carelessly and negligently operated the same, and so negligently constructed, inspected and maintained its tracks at said place, that said train became and was derailed. IV. That as a consequence of said derailment of said train, certain articles belonging to plaintiff and then being carried by him upon his journey, and consisting of [state] were lost or destroyed; that said articles were worth the sum of dollars, and were being carried by plaintiff for his proper convenience and use in connection with the jour- ney upon which he was then engaged. V. That by reason aforesaid plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand for judgment]. 722. Against Sleeping Car Company for Loss of Personal Effects." I. That at all the times hereinafter mentioned defendant was and still is a foreign corporation organized under the laws of the State of [Illinois], and having a place of business in the city of , in the State of New York, and at all said times was and still is operating sleeping cars for the ac- commodation of passengers and luggage between and over the Hnes of railroad of the Railroad Company, which is a common carrier of passengers between said points. II. That on or about the day of , 19 , plaintiff became a passenger on the said railroad, and con- tinued so to be from said to , and duly paid the fare for transportation between said points. III. That on said day, and in consideration of said fare to articles fgtamed by plaintiff in his sary or convenient for use upon his custody, he had the burden of show- journey. ing that their loss was occasioned by " From complaint in Goldstein v. defendant's negligence, and that they Pullman Co., 220 N. Y. 549, where Were reasonably suitable and neces- a recovery for plaintiff was sustained. Against Agents, Bailees, Etc. 781 so paid and in consideration of the sum of dollars paid to the defendant by plaintifT, the defendant agreed to accept plaintiff as a passenger in one of its said sleeping cars, and to furnish him with sleeping accommodations therein from said to said , and to receive his lug- gage during said journey and to use due care and caution in the protection thereof and to deliver the same safely to him upon his arrival at said IV. That pursuant to said agreement, defendant duly received plaintiff as such passenger and furnished him sleep- ing accommodations for the journey between the points aforesaid in one of its said sleeping cars, and accepted the care and custody of his luggage, to wit, a handbag contain- ing wearing apparel and other articles necessary and proper for his journey, and of the value of dollars; that defendant so negligently and carelessly failed to perform its said agreement, and to use due care and caution for the pro- tection and safe delivery to plaintiff of his said luggage, that the same was wholly lost and defendant failed and neg- lected to deliver the same to plaintiff at said upon demand therefor having been duly made by plaintiff. V. That by reason of the premises plaintiff has suffered damage in the sum of dollars. Wherefore [etc., demand for judgment]. 723. Against Baggage Transfer Company, for Non- Delivery. "^ I. [After alleging corporate capacity in a proper case], and was at the times hereinafter mentioned and now is engaged in the business of a pubUc carrier in transporting baggage for hire. II. That on or about the day of , 19 , plaintiff was a passenger on a railroad train proceeding from '^ From Morgan v. Wolverton, 203 is nevertheless a common carrier. N. Y. 52, where plaintiff recovered. Heumanw. Powers Co., 175 App. Div. A general truckman, transporting 627, 162 N. Y. Supp. 590. goods for hire under'special contracts, 782 Abbott's Forms of Pleading to ; that on said day, at about the hour of , defendant soUcited from plaintiff while on said train [or otherwise with particularity allege the time arid cir- cumstances of the delivery to defendant] the transportation of his baggage, consisting of a trunk and its contents, to plain- tiff's residence No. street^ in the city of ; that plaintiff accepted defendant's said offer, and then and there deUvered to defendant his baggage check representing said trunk and its contents, which check defendant received and took into its custody, and thereupon plaintiff offered to pay defendant its charges for such transportation but was directed by defendant to pay such charges upon the delivery of said trunk at his said residence, which plaintiff promised to do; that defendant upon receiving from plaintiff said bag- gage check undertook and agreed to deliver said trunk and its contents safely at plaintiff's said residence. III. That defendant thereafter received said trunk and its contents into its custody, at the station of the railroad in said city of IV. That plaintiff has duly demanded said trunk and its contents from defendant, but defendant has neglected and refused to deliver the same; that said trunk and its contents were of the value of dollars, and by reason of such non-delivery have been wholly lost to plaintiff, to his damage dollars. Wherefore [etc., demand for judgment]. 724. By Passenger, for Breach of Contract to Carry; Ejec- tion of Passenger.'^ I. [Allege defendant's capacity as a common carrier; see Form 718.] II. That on or about the day of , 19 , plaintiff was a passenger on one of defendant's cars [or, pas- senger trains], and had paid the required fare for transporta- tion thereon [from to ], and defendant ^' Adapted from complaints in Eddy v. Syracuse, etc., R. Co., 50 Miller v. King, 166 N. Y. 394, and App. Div. 109, 63 N. Y. Supp. 645. Against Agents, Bailees, Etc. 783 had agreed and undertaken to carry plaintiff safely and without molestation during his journey thereon. III. [Where refusal to accept a transfer caused plaintiff's ejection from the car:] That at the corner of - and streets, plaintiff aUghted from one of defendant's cars on its line known as , to the conductor of which car he had paid his said fare, and had demanded and re- ceived from said conductor a transfer to the line of cars, also operated by defendant; that plaintiff boarded the next car upon said line which followed the car from which he had alighted, and duly presented said transfer for his passage. IV. That while plaintiff was upon said [last mentioned] car [or, train] in the course of his said journey^ defendant improperly and wrongfully demanded of plaintiff a further additional and excessive fare, and that upon plaintiff's refusal to pay the same he was thereupon ejected from said car [or, train] by defendant, and its agents, at , and before he had reached his said destination. V. That defendant and its, agents used unnecessary force and violence in ejecting plaintiff, and said agents used abu- sive and offensive language addressed to him, and in the presence of many passengers accused him of attempting to ride without paying his fare [or otherwise slate any ag- gravation of the occurrence]; that thereby plaintiff was greatly humiliated and suffered great mental distress, to his dam- age dollars. Wherefore [etc., demand for judgment]. 725. The Same, for Failure to Protect Passenger.^* [After allegations of defendant's capacity.] That on or about the day of , 19 , plaintiff became a passenger of the defendant for the pur- " From Busch v. Interb. R. T. Co., be had under that theory for the 187 N. Y. 388, where the court held acts charged; see, also, Connell v. that the complaint was founded on N. Y., 0. & W. R. Co., 134 App. Div. contract, and that a recovery could 231, 118 N. Y. Supp. 944. 784 Abbott's Forms or Pleading pose of being carried upon one of its cars, and in considera- tion of the sum of [five cents] duly paid by plaintiff to the defendant it promised and agreed to safely carry plaintiff, and to treat him properly and carefully. ^^ That the defendant thereafter wrongfully, and in viola- tion of the terms of said contract of transportation, assaulted plaintiff while he continued to be such passenger, and caused one of its agents to take violent hold of plaintiff and to push, pull and otherwise maltreat him, and caused police officers to arrest and assault plaintiff without any charge or provoca- tion, and to detain him forcibly and against his will under arrest and without warrant of law and without cause for a space of , and defendant further wrongfully per- mitted one, of its agents to then and there publicly accuse plaintiff of attempting to ride upon one of defendant's cars without payment of his fare; all to plaintiff's great humiliation and injury to his personal feelings, to his dam- age dollars. Wherefore [etc., demand for judgment]. 726. Against Steamboat Line for Injuries to Passenger.^* I. That at the time hereinafter mentioned the defendants were common carriers of passengers for hire, between the places hereinafter mentioned and were the proprietors of a steamboat named the , employed by them in carry- ing passengers * and merchandise on the river from to II. That on or about the day of , 19 , the defendants received the plaintiff upon said boat, and then and there undertook and agreed to safely convey '" If plaintiff refused to pay his '" For complaints for injuries arising fare, no action will lie for breach of out of negligence, see Actions fob contract although the conductor used Negligence, Chap. XXXII. unreasonable force; the action would For complaints in an action brought be for an assault. Block v. Nassau by the representative of the deceased Elec. R. Co., 68 Misc. 320, 12.3 N. Y. injured person under the statute, see Supp. 949. Chap. XXXIII. Against Agents, Bailees, Etc. 785 them therein'^ as passengers from to , for hire [or, for a reasonable compensation] paid [or, agreed to be paid] to them by the plaintiff. [Continue, as in forms under Negligence; allege the in- juries received — as showing breach of contract to carry safely — and resulting damage.] 727. Against Steamship Company, for Loss of Property from State-room.'" I. That at the times hereinafter mentioned defendant was a [foreign] corporation, organized and existing under the laws of , and owned and operated steamships be- tween and , and elsewhere; that among its said steamships so owned and operated was the steamship named II. That on or about the day of , 19 , plaintiff was a passenger upon said steamship , en route from to ; that on said day said steamship was [in the harbor of ], and during said day defendant permitted or suffered some person or persons to plaintiff xmknown to enter the stateroom assigned by de- fendant to the use of plaintiff, and to take therefrom certain articles of personal baggage belonging to plaintiff, viz., [state], which were of the value of • dollars. Wherefore [etc., demand for judgment]. " Where a complaint set forth a breach specifically alleged and could contract by the defendants to trans- not recover upon any other grounds, port the plaintiff in a particular Briggs v. Vanderbilt, 19 Barb. (N. Y.) steamer, and alleged a breach in not 222; see, also, Ward v. Vanderbilt, 4 conveying the plaintiff in that vessel, Abb. Ct. of App. Dec. (N. Y.) 521; without either averring an obligation Williams v. Same, 28 N. Y. 217. upon the defendants to provide a '* The steamship company is liable substitute in the event of the vessel's as an insurer, and no proof of its loss or claiming any damage by reason negligence is essential. Adams v. of their neglect or refusal to forward N. J. Steamboat Co., 151 N. Y. 163; him in some other vessel, held, that Hart v. N. Germ. Lloyd SS. Co., 108 the plaintiff must be confined to the App. Div. 279, 95 N. Y. Supp. 733. 786 Abbott's Forms of Pleading (b) Of Freight 728. Allegation of Defendant's Capacity as Common Car- rier. That at the times hereinafter mentioned defendant was and now is doing business as a common carrier of goods for hire.'' 729. General Allegations: Defendant's Corporate Capac- ity as a Railroad Company Engaged in Interstate Commerce; Delivery to it of the Goods for Trans- portation; Presentation of Claim within Period Re- quired by Bill of Lading. I. That at all the times hereinafter mentioned the defend- ant was and now is a domestic [foreign] railroad corporation, organized and existing under the laws of the State of , and operating various lines of railroad through por- tions of the State of [New York] and through other States of the Union [or in a proper case, that defendant was the lessee of the Railroad, and at such times operated said railroad as such lessee], and was and now is engaged as a common carrier in interstate coimnerce shipments and transportation between the State of [New York] and other States, and particularly between in the State of [New York] and in the State of ; that in the con- duct of such interstate commerce and carriage the defendant utiUzes connecting carriers to deUver its shipments from said points hereinbefore particularly mentioned. II. That at said , and on or about the day of , 19 , and in consideration of [plaintiff's agreement to pay to it] the usual rates for such freight be- tween said points, defendant as such common carrier re- ceived from plaintiff [state goods] and undertook and agreed to transport the same *" from said to said '' Such an allegation would be allegation of defendant's capacity sufficient to allow proof of defend- as a carrier engaged in interstate ant's business as an express company, commerce. or other capacity as a common car- *> Plaintiff has an election to sue rier. But see next form for specific the carrier in tort or contract for Against Agents, Bailees, Etc. 787 [by route designated as ,] and to there deliver them to the consignee [or, plaintiff]. [If plaintiff intends to rely upon some provision of the bill of lading, the allegation of delivery may be changed to read as fol- lows:] That at said , and on or about the day of . 19 , plaintiff and defendant entered into a written agreement, known as a bill of lading, wherein and whereby defendant in consideration of the usual freight rate for the transportation thereof, received and accepted from plaintiff for transportation from said in the State of , to said in the State of [state goods], and coincident with the making and delivery of said bill of lading plaintiff delivered said goods to defendant and defendant received and accepted the same for such trans- portation. [That within (four) months after the delivery to the de- fendant at said of the aforesaid goods, plaintiff duly made a claim in writing against defendant for the loss of (or, damage to) said goods, and for the value thereof, sub- stantially as hereinbefore set forth, and duly delivered said claim to the defendant at the point of origin of shipment, as is provided and required in its said bill of lading, and de- manded payment of his said claim; that defendant has neg- lected and refused and still neglects and refuses to pay plain- tiff's loss and damage, or any part thereof.] ^^ 730. General Allegation of Defendant's Liability for Act of Connecting Carrier, under Carmack Amendment to Interstate Commerce Act.^^ That pursuant to the laws of the United States, and under loss of goods. 6 Cyc. 513. Such an ■" This is in effect a private statute allegation as is here given, i. e., that of limitations, and under familiar for a consideration the carrier under- principles need not be noticed by took to transport, is construed to plaintiff. Nevertheless its affirmative show an election to sue upon con- allegation may draw an admission tract. See Finkelstein v. Barrett, 178 from defendant and narrow the issue App. Div. 233, 164 N. Y. Supp. 1021 ; accordingly. Catlin V. Adirondack Co., 11 Abb. " The state courts take judicial N. C. (N. Y.) 377. notice of the federal statutes, and this 788 Abbott's Forms of Pleading what is commonly known as the "Carmack Amendment" of June 29th, 1906 [34 U. S. Stat, at Large, 584, Ch. 3591] to what is commonly known as the "Interstate Commerce Act" of February 4th, 1887 [24 U. S. Stat, at Large, 379, Ch. 104], and subsequently amended by , defendant is liable to plaintiff for all loss, damage and injury to the plaintiff's goods caused by any carrier to which said goods were delivered or over whose lines such goods might pass. 731. For Loss of Goods; By Consignor, Owner, against Initial Carrier, on Interstate Shipment,*^ I. [As in Forms 729 and 730.] IL That on or about the day of , 19 , at , in the State of , defendant, as such common carrier, in consideration of the usual freight rates for transportation of such goods between such places [to be] paid to it, accepted and received from plaintiff certain property belonging to plaintiff ^* consisting of [briefly state], allegation is not necessary. It is constantly found in the precedents, however, and characterizes the claim as one founded upon an act of inter- state commerce. See note on the character of the statute to Form 731. ■*' Under the so-called Carmack Amendment to the Hepburn Bill amending the Federal Interstate ^Commerce Act, the initial carrier is liable not only for the negligent acts and omissions of its own employees, but for those of connecting carriers, resulting in any loss or damage to the goods en mute, and also for any loss or damage resulting from the failure of the final carrier to notify the con- signee of the arrival of the goods at destination, and for its failure, on the consignee's refusing to accept them, to store the goods for the account of the shipper or to exercise proper care in holding them for him. Wein v. N. Y. C, etc., R. Co., 166 App. Div. 766, 152 N. Y. Supp. 154; Adams Ex- press Co. V. Croninger, 226 U. S. 491; Kansas Southern Railway v. Carl, 227 id. 639; Galveston, H. & S. A. R. Co. V. Wallace, 223 id. 481; Atlantic Coast Line v. Riverside Mills, 219 id. 186; Becker v: Pennsylvania R. R. Co., 109 App. Div. 230; Earnest v. D., L. & W. R. R. Co., 149 id. 330; Coovert V. Spokane, P. & S. Ry. Co., 80 Wash. 87, 141 Pac. Rep. 324; Norfolk & W. R. Co. V. Stuart Draft Co., 109 Va. 184. This form is not proper where defendant's liability is not that of the initial carrier, but of a mere for- warder. See Rosenfeld v. Centr. Vt. R. R. Co., Ill App. Div. 371, 97 N. Y. Supp. 905. In such an action the allegation of loi would have to be limited to a loss by the defendant. '* The consignee is presumptively the owner of the goods, but this pre- Against Agents, Bailees, Etc. 789 of the value of dollars, for transportation from said [place of delivery] to [place of destination], there to be de- livered to [give name and address of consignee] to whom said goods were consigned. ^^ III. On information and belief that said goods have not been delivered, but have been wholly lost, either by defend- ant or by a common carrier to which plaintiff's said property was delivered by the defendant for the purpose of completing such transportation, to plaintiff's damage dollars. Wherefore [etc., demand for judgment]. 732. Allegation of Delivery in Violation of Terms of Bill of Lading; without Surrender of Bill.^'' That said bill of lading expressly provided that said goods were consigned to the order of plaintiff, at said , and that said goods should not be delivered to any one except upon the production and surrender of said bill of lading properly indorsed by plaintiff and presented and surrendered to the carrier at the point of destination by the person to whom delivery should be made at said point of destination. That pursuant to said agreement of shipment, and in accordance with custom, plaintiff indorsed said bill of lading in blank, and attached to the same a sight draft drawn by plaintiff upon at , for dollars, the •value of said goods, and forwarded said draft with said bill of lading attached thereto through banking channels to the Bank at said , with instructions not to de- sumption may be rebutted. Fein v. Fine v. Barrett, 81 Misc. 234, 142 Weir, 129 App. Div. 299, 114 N. Y. N. Y. Supp. 533. Supp. 426; Krulder v. Ellison, 47 ** Such an allegation of the car- N. Y. 36; Sweet v. Barney, 23 id. 335. rier's undertaking is construed as One who receives goods by express for showing an election to sue upon con- inspection and to be returned if not tract. See Finkelstein v. Barrett, satisfactory, and who returns them, 178 App. Div. 233, 164 N. Y. Supp. cannot sue for their loss. Gurwitz v. 1021 . Weir, 127 App. Div. 352, 111 N. Y. « The precedent is from Blacklock Supp. 557.. Where the consignee has v. N. Y. Central R. Co., 217 N. Y. refused to accept on the ground that 719, where a recovery by plaintiff he did not order the goods, the con- was affirmed, and the sufficiency of signor may sue for their non-return. the complaint not questioned. 790 Abbott's Forms of Pleading liver said bill of lading to said , or to any one, until said draft was paid to said bank for the benefit of plaintiff. That upon said draft and said bill of lading being received by said bank at , it presented said draft to said , and demanded payment thereof and then and there tendered said bill of lading to said provided he should pay said draft; that said declined to pay said draft, and said bank thereupon refused to deliver and did not deliver said bill of lading to said , or to any one, but returned said draft and said bill of lading to plaintiff who has ever since retained and still retains the same. That said goods were received by defendant's connecting carrier at said , the point of destination, prior to , 19 ' ; that notwithstanding the non-presentation and non-surrender of said bill of lading to the defendant's connecting carrier at said , defendant or its said connecting carrier prior to , 19 , wrongfully and without authority deUvered said goods to some party other than the plaintiff, without any authority from plaintiff, and contrary to the express provisions of said bill of lading, and without the production or surrender thereof, and that there- upon some person to plaintiff imknown secured possession of said goods and retained the same and plaintiff has never received said goods or the value thereof. That said goods were and always have been the property of the plaintiff, and remained and were to remain his prop- erty until said draft was paid, and said bill of lading duly presented and surrendered to defendant or its connecting carrier at , by plaintiff's authority. That said goods were of the value of dollars. 733. Refusal to Obey Direction for Stoppage in Transitu.*^ I. [Allege defendant's capacity as common carrier; see Form 728] " From complaint in Rosenthal v. tract, and that defendant was not Weir, 170 N. Y. 148, where plaintiff protected by its limitation of liability recovered; the court held that the in its receipt. action was in tort and not in con- Against Agents, Bailees, Etc. 791 II. That on or about the day of , 19 , plaintiff delivered to defendant certain merchandise consist- ing of , of the value of dollars, which plain- tiff had theretofore agreed to sell on credit to one M. N., of , and in consideration of the payment to it of the regular charges therefor defendant agreed to transport said goods and deliver the same to said M. N., at , but subject, however, to the lawful further directions of plaintiff in relation thereto while said goods remained in defendant's possession. III. That before defendant parted with the possession of said goods said M. N. became and was insolvent and unable to pay his just debts, including the indebtedness to plaintiff incurred by reason of the sale to him of the said goods; that on or about the day of , 19 , plaintiff learned of said insolvency, and thereupon, and while said goods were still in the possession and under the control of the defendant and delivery thereof to said M. N. able to be pre- vented by it, plaintiff directed defendant not to deliver the said goods to said M. N., but to return them to plaintiff, and plaintiff notified defendant and agreed that he would pay all return charges therefor. IV. That the defendant neglected and refused to obey the plaintiff's said directions not to deliver and to return said goods, and in violation of such direction delivered said goods to said M. N., who received the same and has failed and neglected and is wholly unable to pay plaintiff therefor, and has refused to return said goods. V. That by reason of the premises plaintiff has lost the value of said goods, to his damage dollars. Wherefore [etc., demand for judgment]. 734. For Delay in Delivery, with Special Damage. I. [As in F(yrms 128 or 739.] II. That on or about the day of , 19 , at , the plaintiff delivered to the defendants [state articles], of the value of dollars, the property of the 792 Abbott's Forms of Pleading plaintiff, which the defendants, in consideration of dollars [m-, of a reasonable compensation to be] paid them by the plaintiff, undertook and agreed safely to carry to the city of , and there deliver to the plaintiff, within the time reasonably necessary for transportation between the two points, which did not exceed days. III. That the defendants did not fulfill their agreement safely to carry the same, and to deliver them at within said reasonable time; but, on the contrary, they failed to deliver the same to plaintiff at said until the day of , 19 .^« IV. That the value of said [goods] in the city of on the [day agreed] was dollars, but on the [day of actual delivery] was only dollars; that said [goods] were salable only during a limited period of time, of which defendant was informed and well knew; and that by reason of the premises the plaintiff was damaged in the sum of dollars. ^» Wherefore [etc., demand of judgment]. 735. The Same, for Failure to Deliver Perishable Property within a Reasonable Time, with Special Damage.*" [Sustained in Denman v. Chicago, etc., R. R. Co. (Neb.), 71 N. W. Rep. 967.] " ■^ It is not necessary to allege neg- Brown v. Weir, 95 App. Div. 78, ligence in an action upon a contract to 88 N. Y. Supp. 479. See note on deliver at specified time. Jones v. measure of damage in conversion Wells, Fargo & Co., 28 Cal. 259. and replevin at end of Chapter Where there was no contract as to XXXVIII. the time of delivery, the carrier is Notice to the carrier of the special only liable for a delay caused by his character of the goods is necessary actual negligence. where plaintiff claims special damage ■" Damages not the necessary re- of this character. Rosenberg v. suit of the delay, and reasonably Del., L. & W. R. Co., 88 Misc. 1 within the contemplation of the 150 N. Y. Supp. 75. parties, cannot be recovered; if the ™ For measure of damages see carrier refuses to deliver unless upon Frey v. N. Y. Central, etc., R. Co., payment of an excessive charge, 114 App. Div. 747, 100 N. Y. Supp. replevin or conversion will lie, with 225. a more liberal rule as to damages. " Also adapted from Galloway v. Against Agents, Bailees, Etc. 793 I. [As in Form 729] II. [As in Farm 729.] III. That hours was then the usual and ordinary time required for transportation of [cattle] from said to said , and was a reasonable time for the transpor- tation of said cattle. IV. That the defendant failed to transport the same within that time [pursuant to its said agreement]; but, on the contrary, unreasonably and negligently delayed ^^ the delivery of the said cattle, and did not deliver the same at said until the day of , 19 , and more than hours after the time when said cattle should have been delivered at said in the usual and customary course of transportation as aforesaid. V. That by reason of said delay head of said cat- tle died before reaching said or soon thereafter, and that the remainder thereof were greatly injured by shrinkage in weight and loss of flesh, and were worth at least dollars less than they would have been worth had they ar- rived within said period of hours after their receipt by defendant as aforesaid,^^ to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 736. The Same; Shipment in Refrigerator Car, and Failure to Preserve." I. [As in Form 729] II. That the plaintiff at said City of , on or about the day of , 19 , delivered to the Erie R. Co., 192 N. Y. 545, where no (N. Y.) 310, 10 N. Y. Leg. Obs. 161; question of pleading was directly Wibert v. N. Y. & Erie R. R. Co., 12 involved, but a judgment for plain- N. Y. 245. tiff was upheld. " For an allegation of depreciation *2 Where there is no express agree- in market value during the time of the ment as to time, actual negligence delay, see Form 741. must be shown to charge the carrier ^^ From complaint in Williams v. with damages for a delay in the de- Penn. R. Co., 129 App. Div. 935, 115 livery of goods. Parsons w. Hardy, 14 N. Y. Supp. 1136, where a judgment Wend. (N. Y.) 215; Bowman v. Teall, for plaintiff was affirmed. 23 id. 306; Dows w. Cobb, 12 Barb. 794 Abbott's Forms of Pleading defendant as such common carrier a [carload of cucumbers,] being the property of the plaintiff, for transportation to the City of , in the State of , and the de- fendant thereupon received the same and caused the same to be loaded in a refrigerator car [known and numbered as P. R. R. 119,630,] which the plaintiff instructed the defend- ant to keep fully iced, and the same having been fully iced at or before the time of loading, it became the duty of the defendant as such common carrier according to the estab- Ushed custom to transport and deliver said carload of cu- cumbers with due care and within a reasonable time, and during all said times to keep the said car fully iced and ven- tilated and to protect the contents from injury and decay, which duty the said carrier undertook for hire to perform. III. That the defendant disregarding its duty failed and neglected to transport and deliver the said carload of cu- cumbers at its destination with due care, or within a reason- able time, and failed to keep the said car fully iced, or to supply said car with any ice after its departure from , and by its servants and agents so carelessly and negli- gently conducted itself in respect thereto that the said car- load of cucumbers was not tendered for delivery at its des- tination until the day of , 19 , and the said cucumbers were heated, spoiled and decayed, and thereby largely depreciated in value. IV. By reason of the defendant's neglect and delay in transportation as aforesaid said cucumbers became depre- ciated in value to the amount of dollars, in which sum plaintiff has suffered damages. Wherefore [efc, demand for judgment]. 737. Allegation of Injury to Goods after Arrival at Destina- tion.^'* I. and II. [After allegation of delivery of goods to initial car- rier for transportation as in Form 729.] "^ '* From Becker v. Penn. R. Co., upheld, but no question of pleading 109 App. Div. 230, 96 N. Y. Supp. I, directly raised, where a judgment for plaintiff was ^ See Form 729 and notes. Against Agents, Bailees, Etc. 795 III. That said [initial carrier] " transported said [apples] over the line of its railroad and delivered the same in good order to the defendant company at on or about the day of , 19 , and said defendant ac- cepted and received said apples at its yards and upon its tracks at That thereafter the defendant transported said apples over its line of railroad from said to the destination of the same at ; that after said apples arrived at their destination it then became the duty of said defendant to care for and store and protect the same until delivery thefeof ; that in violation of its said duty, defendant wholly neglected to care for, store or protect said apples, and by reason of said neglect the same became overheated, fer- mented, sour and damp, and were greatly diminished in value. 738. Against Carriers by Water, for not Regarding Notice to Keep Dry.!** I. [As in Form 739.] II. That on or about the day of , 19 , at the port of , the plaintiff caused to be delivered to the defendants, and the defendants received on one of their vessels then lying at said port, certain [very briefly designate the goods], the property of the plaintiff, of the value of dollars, in consideration whereof, and of the sum of dollars, then and there paid, [or, agreed to be paid] by the plaintiff [or, by one M. N.] to the defendants [or, in consideration of a reasonable compensation by , agreed to be paid to the defendants therefor], the defendants then and there promised to take care of and " The initial carrier is not liable writing on the article or package, of for breach of duty of the final carrier the need of peculiar care, he is bound acting as a warehouseman. Dodge, to comply with such directions. See etc., Co. V. Penn. R. Co., 175 Baxter w. Leland, 1 Abbott's Adm. -R. App. Div. 823, 162 N. Y. Supp. 348; Hastings v. Pepper, 11 Pick. 41, 549. and Sager v. Portsmouth, etc., R. R. »» If the carrier have notice, by Co., 31 Maine, 228. 79() Abbott's Forms of Pleading safely carry said goods to , and there safely to deliver them to , danger of the seas only excepted, and then and there received said goods for that purpose. III. That the plaintiff then and there caused due notice to be given to the defendants that it was necessary to the preservation of said goods that they should be kept in a dry condition. IV. That the defendants failed to take care of or safely to carry said goods; but, on the contrary, not regarding their said promise, so negligently and carelessly carried the same so that they became wet, and thereby entirely ruined [or state other injury, in its nature and extent, according to the facts]; which injury was occasioned, not by reason of any danger of the seas, but wholly through the negligence of the defendants and their servants. V. That by reason of the premises the plaintiff was in- jured, to his damage dollars. Wherefore [etc., demand of judgment]. 739. Against Same; for Loss of Freight.^' That at the times hereinafter mentioned defendant was engaged a^ a common carrier for hire in running a line of steamships for the transportation of freight between the ports of and ; that such Une was known as the Line, and one of the steamships thereof was named the " ". [Allege delivery of goods to defendant for transportation upon such vessel, as in Form 729.] That the usual and reasonable time for the transportation of freight and merchandise from said port of to said port of is less than [three weeks], which time has long since expired; that said merchandise so delivered by plaintiff to defendant for such transportation has never been delivered to said [consignee], and that said merchandise has been wholly lost in transit between said ports. ™ Adapted from Lowenstein v. where the plaintiff claimed that the Lombard, Ayres & Co., 164 N. Y. 324, steamer was unseaworthy. Against Agents, Bailees, Etc. 797 That said merchandise was of the vahie of dol- lars. Wherefore [etc., demand for judgment]. 740. Allegation of Loss in Unloading and Delivering. III. That said vessel afterwards safely arrived at , and no [excepted perils] prevented the safe carriage or de- livery of the goods. IV. That the defendant, not regarding his duty in that behalf, did not deliver the said goods to the plaintiff; but so negligently and carelessly unloaded and dehvered the same that said goods were broken and wholly destroyed and rendered of no value to plaintiff, to his damage dollars. 741. Against Railroad Company, for Failure to Furnish Cars.^" I. [As in Form 729.] II. That it was the duty of the defendant to furnish plain- tiff and the public generally with sufficient cars and other facilities necessary for the expeditious and proper transporta- tion of freight upon its lines of railroad. III. That during the months of , 19 , plaintiff had in his possession [ tons of cabbages] at , through which the defendant operated its said railroad line; that said railroad line was the only one running through said place and available for the purpose of transporting said cabbages to the markets desired to be reached by plaintiff. IV. That during said months, at frequent intervals, plaintiff requested defendant to furnish him with cars suitable and available for the purpose of transporting and ™ From complaint in Dobbins v. 121, that the duty of a railroad corn- Syracuse, etc., R. Co., 215 N. Y. 674, pany to furnish sufficient and prop- where no qjiestion of pleading was erly equipped cars was a common- directly raised, but a judgment for law duty, and that under § 22 of the the plaintiff was affirmed. Interstate Commerce Act violations It was held in Penn. R. Co. i;. of that duty could be dealt with by Puritan Coal Mining Co., 237 U. S. state courts. 798 Abbott's Forms of Pleading delivering said cabbages to said markets, and reached by defendant's said railroad, and plaintiff informed defendant that he had in his possession large quantities of cabbages ready for transportation to market by its line of railroad, and that it was necessary and imperative that defendant should furnish cars immediately and that failure so to do would cause plaintiff great damage in the loss of a market for said cabbages. V. That defendant neglected and refused to furnish plaintiff with cars, as so requested, and ignored his demands therefor, and without justifiable or proper excuse con- tinuously failed and refused to furnish or procure to be furnished to plaintiff the due and reasonable and equitable quantity of cars for his use but in various instances defendant allotted cars to other shippers to the exclusion of plaintiff in whole or in large part. VI. That by reason of defendant's refusal to furnish cars, plaintiff was wholly unable to have his said cabbages trans- ported to any market ; that said cabbages were of the reason- able value and worth in market during said months of the sum of dollars per ton; that said cab- bages became of no value whatsoever, to plaintiff's damage dollars. Wherefore [etc., demand for judgment]. 742. Against Same, for Refusal to Receive Goods for Transportation.*^ I. [Allege defendant's capacity a^ common carrier, as in Form 729, continuing] and had a depot for the receipt of goods at said , and at said , and a line of railroad between said towns over which it transported merchandise. "' It is the duty of a common car- properly towards shippers, and can- rier, outside of any special agreement, not be required or permitted to give where goods have been properly pre- preference to one over another, or to sented for carriage, to receive and carry freight except according to the transport them within a reasonable priority in which it was received, time, and in the order in which they Pittsburgh, etc., R. Co. v. Racer, 5 were received. It must not act im- Ind. App. 209. Against Agents, Bailees, Etc. 799 II. That on or about the day of , 19 . at about the hour of on said day, plaintiff tendered to the defendant at its said depot in , certain goods belonging to plaintiff, consisting of [briefly describe], which goods were then securely packed for transportation, and re- quested defendant to receive the same and transport them to its said depot at , and then and there offered to. pay to defendant the amount of its charge for such transpor- tation. III. That defendant [had sufficient means and facilities for receiving and transporting said goods, but] *^ wholly refused and neglected to receive or carry said goods, or any part thereof. IV. [Allege resulting damage.] Wheeefore [eic, demand of judgment]. 743. Against a Common or Private Carrier, on a Special Contract, for Loss of Goods.®' I. [As in Form 729, except that in this action the allegation that defendant is a common carrier is not material, though usual.] II. That on or about the day of , 19 , at , the plaintiff delivered to the defendant certain goods, the property of the plaintiff, to wit [describe the goods], «2 In Pittsb., etc., R. Co. v. Racer, 5 R. R. Co., 9 Barb. (N. Y.) 158]; but Ind. App. 209, such an averment was where the action is brought on the held unnecessary, the court saying: special contract, it is not necessary "A common carrier is liable to dam- to allege the defendant's capacity, ages for refusing to carry without for that fact is not an element of its reasonable excuse. It is for the car- liability on its special contract. Dun- rier to show the excuse." bar v. Port Ry., etc., Co., 36 S. C. *' This form is appropriate where 110, 15 S. E. Rep. 357. the pleader relies on a special con- If the defendant is not a common tract, as defining the liability of the carrier, the special contract must be carrier in the respect in which a established, and no recovery may recovery is sought. If the liability be permitted on the theory of de- on which he relies is that of the car- fendant's liability for misconduct of rier's pubUc duty, it should be averred servant. Hirsch v. Am. Dist. Tel. that the defendant was a carrier Co., 112 App. Div. 265, 98 N. Y. [Bristol V. Rensselaer & Saratoga Supp. 371. 800 Abbott's Forms of Pleading of the value of dollars, and in consideration " of the sum of dollars [or, of a reasonable compensation^] paid [or, agreed to be paid] to him by the plaintiff, the de- fendant then and there made an agreement, of which a copy is hereunto annexed marked "A," and made a part of this complaint [copy of the agreement]. ^^ III. That the defendant did not safely carry and deliver said goods pursuant to its agreement, but [so negligently and carelessly conducted itself in that behalf, that said goods were thereby wholly lost to the plaintiff and defendant has] *^ failed and refused to deliver them, to the damage of the plaintiff dollars."'' Wherefore [etc., demand of judgment]. ** In an action upon the contract, a consideration for the carrier's under- taking must be stated, or it will be regarded as having been uiade with- out consideration. Bristol v. Rens- selaer & Saratoga R. R. Co., 9 Barb. (N. Y.) 158. But it is not necessary to state what the consideration was. 2 Chit. PI. 357, note d. And the delivery and acceptance of the goods is a sufficient consideration, because raising a liability against the one delivering to pay the reasonable charges for transportation. Streeter V. Horlock, 7 J. B. Moore, 283. ^* Where there is a special agree- ment, varying the common-law habil- ity of the carrier, the action is prop- erly brought on the contract for a breach of it, and not as in tort. Boaz V. Centr. R. Co., 87 Ga. 463, 13 S. E. Rep. 711; Masters v. Stratton, 7 Hill (N. Y.), 101; Wilbur v. Brown, 3 Den. (N. Y.) 356. So, in Ind., etc., R. R. Co. v. For- syth, 4 Ind. App. 326, 29 N. E. Rep. 1138, it was held that when the con- tract for the carriage of goods is by a bill of lading, the declaration should be upon such bill. In such case it may be immaterial that the defendant is a common car- rier, since he is liable for the violation of his contract. Dunbar v. Port Ry., etc., Co., 36 S. C. 110, 15 S. E. Rep. 357. But it was usual in a declara- tion in assumpsit to aver the defend- ant's capacity as common carrier, as well as to aver negligence on its part, both of which belong rather to an action for breach of the carrier's public duty, than to an action on the contract. As to whether the action should be treated as one on contract, or for breach of public duty, compare the following cases: Finkelstein v. Barrett, 178 App. Div. 233, 164 N. Y. Supp. 1021; Catlinv. Adirondack Co., 11 Abb. N. C. (N. Y'.) 377; Campbell V. Perkins, 8 N. Y. 430; Green v. Clark, 12 id. 343; Dorr v. N. J. Steam Navigation Co., 11 id. 485; Thurman V. Wells, 18 Barb. (N. Y.) 500; Heine V. Anderson, 2 Duer (N. Y.), 318; But- ler V. N. Y. & Erie R. R. Co., 22 Barb. (N. Y.) 110; People ex rel. Burroughs V. Willett, 6 Abb. Pr. (N. Y.) 37. ^ An allegation pf negligence will be disregarded as surplusage where the complaint sounds on contract. See Finkelstein v. Barrett, supra. " If the contract excepts certain Against Agents, Bailees, Etc. 801 IV. INNKEEPERS 68 744. Against Innkeeper, for Loss of Trunk, or Contents.*" I. That at the times hereinafter mentioned, the defendant was an innkeeper, and the proprietor of a hotel in the city of , known as "The Hotel." II. That commencing on or about the day of , 19 , plaintiff was received by the defendant into his said hotel as a transient guest, together with his baggage, to wit, a satchel and trunk containing among other things [here designate contents lost], the property of the plaintiff, of the value of dollars. perils, it may properly be averred that the loss was not by those perils; but it is not necessary to aver that the loss was not by the act of God, or pub- lic enemies, nor in consequence of negligence or fraud of the plaintiff, be- cause the burden of proof is on the carrier to show those facts if he relies on them. 2 Greenl. on Ev., §§ 219, 220. But if the contract prescribes any conditions, such as notice to the carrier of the contents or value, it must be averred that he had such notice, or that he waived it. Id., § 218. Yet this is held not to apply where the lack of notice was intended to go only to the amount of damages. Id., § 209. ^ A keeper of a furnished-room house is not liable as an innkeeper; liability for loss of property of one hiring a room rests on an affirmative showing of negligence. Quigley v. Southwick, 76 Misc. 539, 135 N. Y. Supp. 565. ^' The common-law liability of inn- keepers has been limited by statute in New York, in respect to the guest's money, jewels or ornaments, clothing, property lost by incendiary fire, and animals destroyed by fire. Gen. Business Law, §§ 200-203. By the common law, an innkeeper is liable for all loss or damage to the goods of his guests occurring while they are in his inn, except when such loss or damage is occasioned by the act of God, or the public enemy, or through the fault of the owner. Hu- lett V. Swift, 33 N. Y. 571; Ramaley v. Leland, 43 id. 539. But this strict liability of an innkeeper is held to extend to transient guests and not to boarders. Hancock v. Rand, 17 Hun (N. Y.), 279; Pollock v. Landis, 36 Iowa, 651; Lusk v. Belote, 22 Minn. 468. Though merely fixing the price to be paid does not make the person a boarder rather than a guest. Han- cock V. Rand, 17 Hun (N. Y.), 279; 94 N. Y. 1, 46 Am. Rep. 112; and see Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244. A hotel proprietor in a city, who receives transient persons as guests, is liable as a common inn- keeper for loss of his guests' baggage. Wintermute v. Clarke, 5 Sandf. (N. Y.) 242; Mowers v. Fethers, 61 N. Y. 34; Taylor v. Monnot, 1 Abb. Pr. (N. Y.) 325, 4 Duer, 116. And a transient visitor at a hotel is none the less a guest because he makes a spe- cial contract for board at reduced rates. Beale v. Posey, 72 Ala. 323. 802 Abbott's Forms of Pleading III. That [the defendant and his servants so negligently and carelessly conducted themselves in regard to the same, that] '" while plaintiff so remained with his baggage at said hotel, his said trunk was taken away [or, was broken open, and said , which was of the value of dol- lars, was taken away] by some person or persons to the plaintiff unknown ; and thereby the same became wholly lost to the plaintiff, to his damage dollars. Wherefore [etc., demand of judgment]. 745. The Same, for Loss of Jewelry.'^ I. [As in preceding form.] II. That on or about the day of , 19 , plaintiff was received by defendant as a guest at his said hotel. III. That while plaintiff continued to be a guest therein, and on or about the day of , 19 , certain jewelry belonging to plaintiff consisting of [state] and of the value of dollars, was stolen from plaintiff's room in said hotel. [IV. That defendant had previously assured plaintiff that his said jewelry would be safe if left in his said room, and plaintiff relied upon such assurance in leaving said jewelry therein.] ^^ V. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. ™ The defendant is liable without " The hotel keeper is hable at corn- proof of negUgence, and no averment mon law for the loss of jewelry as for thereof is necessary in New York. wearing apparel; to obtain the benefit Willard v. Reinhardt, 2 E. D. Smith of the statute (Gen. Business Law, (N. Y.), 148; Clute v. Wiggins, 14 §200), defendant must show corn- Johns. (N. Y.) 175, 7 Am. Dec. 448, pliance with its requirements. A form with extended note. therefor is given among Answers. If the loss of wearing apparel or '''Such an assurance would waive - other property occurs without the the statute, and defendant would be fault or negligence of the hotel liable for the loss. Friedman v. keeper, his liability is limited to Brestin, 51 App. Div. 268, 65 N. Y. $500. Gen. Business Law, § 201. Supp. 5, aff'd 169 N. Y. 574. Against Agents, Bailees, Etc. 803 746. Against Innkeeper, who is also Proprietor of Bathing- house, for Loss of Pocket-book." I. That the defendant, at the time hereinafter stated, was a hotel keeper at the town of , in this State, and the proprietor of the Hotel at said place. II. That on or about the day of , 19 , defendant received this plaintiff as a guest at said hotel. III. That the defendant's said hotel was upon the sea- shore, and in connection with it and as a part of the entertain- ment provided thereat the defendant maintained bathing- houses for the safe-keeping of the clothing, wardrobe, and such money and jewelry of his guests as are usually carried upon the person of guests and patrons of his said hotel. IV. That while the plaintiff was his guest, as aforesaid, the defendant undertook, for compensation paid him by the plaintiff, to keep safely in one of his said bathing-houses, the clothing and-such articles of jewelry and valuables as the plaintiff then had upon his person, while the plaintiff should bathe; and that the plaintiff thereupon put into said bathing- house his clothing, his pocket-book, containing money in the amount of dollars, and such other property as is usually carried upon the person, of the value of dollars, and left the same in the possession and charge of the defendant, both as innkeieper and as special bailee for hire, as aforesaid. V. That, while this plaintiff was bathing, his pocket-book and money were, by the negligence, carelessness and dis- honest management of the defendant and his servants, lost and stolen, to plaintiff's damage dollars. [VI. If the amount of money contained in the 'purse was unusually large, may add: That the plaintiff is by profession — designating a business requiring the plaintiff to carry con- siderable sums — and that said sum was such an amount as he might reasonably and properly carry with him with reference to his circumstances in life, and the nature of his business.] " The complaint charges defendant In the latter capacity only would the with liability in two capacities, i. e., defendant's negligence have to be es- as innkeeper, and as bailee for hire, tablisbed. 804 Abbott's Forms of Pleading VII. That facilities for bathing, according to the custom of the neighborhood, and as the defendant then well knew, were a part of the acconamodations necessary to be afforded by the innkeepers in that vicinity. Wherefore [etc., demand of judgment]. 747. For Refusal to Lodge Traveler.^^ I. [As in Form 7U.] II. That on or about the day of , 19 , plaintiff requested the defendant to receive and lodge him as a guest during the night of said day. III. That plaintiff was ready and willing and offered to pay the defendant his reasonable [and specified] charges for such lodging. IV. That the defendant [had ample room and accommo- dation to receive and lodge the plaintiff during said time," but publicly in the presence of divers personsand in a manner to greatly humiUate and distress plaintiff] ^* refused to re- ceive plaintiff or permit him to lodge at said hotel. V. That by reason thereof plaintiff was [injured in his feelings as a result of the said public refusal, and was] obliged to and did hire a conveyance and pay therefor the sum of dollars, and was obliged to travel miles to procure shelter [allege any otiier resulting damage], to his damage dollars. Wherefore [etc., demand of judgment]. 748. Against Proprietor of Hotel, Offering Public Service, for Failure to Protect Guest." I. That defendant at the times hereinafter mentioned " The common law imposes a duty here, however, in deference to some upon innkeepers to receive all travel- precedents. ers and furnish them accommodation. ™ Damages to plaintiff's feelings as Grinnell v. Cook, 3 Hill (N. Y.), 485. a result of the public humiliation may '* This is mere matter of excuse and be recovered. See Morningstar v. not a part of plaintiff's afiBrmative Lafayette Hotel Co., 211 N. Y. case. See Pittsb., etc., R. Co. v. 465. Racer, 5 Ind. App. 209. It is inserted " Adapted from complaint in De- Against Agents, Bailees, Etc. 805 was [and now is] the proprietor and manager of the Hotel, in the City of in this State. II. That said Hotel was at said times a pubhc inn, for the entertainment of guests for hire. III. That on or about the day of , 19 , plaintiff [in company with ] was received by de- fendant in said Hotel as a guest thereof, and plaintiff was given a room therein for her occupany, which she thereupon entered and occupied. IV. [Allege circumstances showing failure to give protection, as;] That thereafter, and on said day, and at about the hour of [one o'clock in the morning], while plaintiff was occupying said room so assigned to her, one of the defend- ant's servants, employees or agents, while in his regular employment and acting under defendant's orders and the rules and regulations of said Hotel laid down by defendant for the direction of his employees therein, forced his way into plaintiff's said room without her consent and against her protest, while she was undressed and imclothed except her night-dress, and thereupon said employee addressed to plaintiff [in the presence of ] vile and insulting language, and accused her of being a disreputable person, and addressed to her words imputing that she was guilty of improper and immoral conduct, and insulted her in many other ways [and in the presence of said ], and further- more ordered and directed her to leave said Hotel. V. That the foregoing acts were in vioktion of the de- fendant's obligation towards plaintiff, who was his guest, to plaintiff's damage dollars. Wherefore [etc., demand for judgment]. Wolf V. Ford, 193 N. Y. 397, where Supp. 673, where a judgment for the action waa sustained. plaintiff was upheld, upon proof of See, also, Aaron v. Ward, 203 N. Y. her expulsion from a public bathing 351, aff'g 136 App. Div. 818, 121 N. Y. resort. 806 Abbott's Fobms of Pleading • V. PLEDGEES 749. Against Pledgee, for Loss of Pledge/* I. That on or about the day of , 19 , at , the plaintiff delivered to the defendant [briefly designate the thing], the property of this plaintiff, of the value of dollars, by way of pledge to the defendant to secure the sum of dollars then loaned by the de- fendant to the plaintiff, and interest thereon, which [pledge] the defendant received for that purpose and agreed with the plaintiff to safely keep until it should be redeemed by the plaintiff. II. That the defendant has failed to fulfill said agreement " If there has been » conversion of the pledge, i. e., by the pledgee wrongfully disposing of it or refusing to surrender it after a proper tender to him of the amount of loan and in- terest, recovery may be had on the ordinary complaint for conversion (see infra under title Conversion). Luckey v. Gannon, 6 Abb. Pr. (N. S.) 209. It is not necessary to sue the pledgee specially in his character as such. Of course no action can be main- tained by pledgor against pledgee to recover possession of the pledge until the former has paid or offered to pay the amount of the loan and interest. Hendrix v. Harmon, 19 S. C. 483; In respect to the right of the pledgee to sell the pledge on default of payment, it may be Ridded that he can sell only upon notice to the pledgor. Stearns v. Marsh, 4 Den. (N. Y.) 227, 2 Kent's Com. 749; De Lisle V. Priestman, 1 Browne (Pa.), 176; and see Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62. And the sale, in the absence of an agreement to the contrary, must be made by public auction. Castello v. City Bank, 1 N. Y. Leg. Obs. 25; Jones u. Thur- mond, 5 Texas, 318; and see Rankin V. McCuUough, 12 Barb. (N. Y.) 103. No agreement entered into by pledgor at the time of depositing a pledge that in case of default the pledge shall im- mediately become the absolute prop^ erty of the pledgee can defeat the right of the pledgor to have notice of the sale. 2 Kent, 748, and author- ities there cited; Hart v. Burton, 7 J. J. Marsh. 322; Lucketts v. Town- send, 3 Texas, 119; and see Cortelyou V. Lansing, 2 Cai. Cas. (N. Y.) 200. The notice also should apprise the pledgor of the time and place of sale, as the object is not that the notice should operate as a. demand, but that the pledgor should be enabled to bid at the sale or to procure a good bid to be made, etc. See Brown v. Ward, 3 Duer (N. Y.), 660; CasteUo v. City Bank, 1 N. Y. Leg. Obs. 25; WiUough- by V. Comstock, 3 Hill (N. Y.), 389; Tucker v. Wilson, 1 Bro. P. C. 494, 1 P. Wms. 261; Lewis v. Graham, 4 Abb. Pr. (N. Y.) 106. For form of complaint in an action to foreclose a lien upon a chattel, see under Actions of Foreclosure. Against Agents, Bailees, Etc' 807 on his part, and on the contrary took so Mttle care of, and so neghgently kept said [pledge], that while it was in his possession for the purposes aforesaid, it was through his negUgence lost,'^ to the damage of the plaintiff dollars. Wheeepore [etc., demand of judgment]. 750. For Injxiry to Pledge.*" I. [As in preceding form.] II. That the defendant, not regarding his promise, so , neghgently and so carelessly kept and used the said [pledge], that it became, by reason of his negligence and carelessness, greatly damaged [state briefly the injury, in its nature and extent, as the case was], to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. VI. TELEGRAPH COMPANIES 751. Against Telegraph Company, for Failure to Deliver Message. [Complaint sustained in Milhken v. Western Union Tel. Co., 110 N. Y. 403.] «' " Such an allegation, i. e., of loss of ^ Ordinary diligence is required of pledge, excuses tender of the amount the pledgee, and he is responsible for of loan and accrued interest. The damage resulting from ordinary neg- rule is the same if the pledgee wrong- hgence. Argent v. Squires, 1 Daly fuUy disposes of it. See post, title (N. Y.), 347; St. Losky v. Davidson, CoNVEiisiGN. 6 Cal. 643; Winthrop Bank v. Jack- The allegation of defendant's neg- son, 67 Me. 570. But although he ligence in this and the following form uses the property wrongfully, he is is of the broadest character; it is answerable by action only, and his thought sufficient, however, even lien is not thereby forfeited. Thomp- against motion in view of the position son v. Patrick, 4 Watts, 414. of the parties and the defendant's *' The court held that a good cause superior knowledge. of action was stated in the complaint The pledgee is notUable unless neg- either upon the contract made with hgence is shown. Abbett v. Fred- plaintiff's agent in France, or upon its erick, 56 How. Pr. (N. Y.) 68; Van contract with plaintiff in New York. Nostrand v. N. Y. Guaranty, etc., It was held in Am. Union Tel. Co. Co., 7 Jones & S. (N. Y.) 73. v. Dougherty, 89 Ala. 191, 7 So. Rep. See also note to next form. 660, that where it appeared on the 808 Abbott's Forms of Pleading I. That plaintiff was at all the times hereinafter men- tioned, and still is a dramatic writer, translator and dealer and broker in American and foreign plays. II. Upon information and belief that the Western Union Telegraph Company, the above-named defendant, is a domestic corporation duly existing under and by virtue of the laws of the State of New York. III. That the principal business of defendant is to receive and transmit messages for hire by telegraph over lines of wire running through the State of New York, and into and through certain States and countries contiguous thereto, and to dehver the same, and likewise to receive, transmit and deliver messages from abroad transmitted by sub- marine telegraph cables in connection with its lines of wire and proper facilities operated by it for that purpose; that the confidence which the public is invited to and does repose trial that plaintiff's broker had signed the telegram in his own name, an amendment was properly allowed so as to make the action in the name of the broker for the use of the principal. In Halsted i'. Postal Telegraph Cable Co., 193 N. Y. 293, and in MiUiken v. Western Union Tel. Co., supra, the court held that plaintiff was entitled to bring the action in his own name on the message sent by his agent, and (in the Halsted case) was bound by any reasonable contract made with the company for its transmission in limitation of damage for a mere mis- take. The person to whom a telegram is sent can maintain an action for any legal damage that may result to him from the negligence of the company in its transmission or delivery, where the message shows that he is inter- ested in it, or that it is for his benefit, or that damage will result to him from its negligent transmission or de- livery. International Ocean Tel. Co. V. Saunders, 32 Fla. 434, 14 So. Rep. 148. But the receiver of the message is held to be bound by the hmitation of liability in the contract with the sender. Ellis v. Am. Tel. Co., 95 Mass. 226. Where the action is founded on the contract, a person not a party to it cannot sue for damages thereon where the defendant was not informed in terms nor by the tenor of the message that it was for plaintiff's benefit. W. U. Tel. Co. V. Wood, 6 C. C. A. 432, 57 Fed. Rep. 471. Where the message informed the recipient that his father had died, the court said: "It "is evident that the dispatch was sent for plaintiff's bene- fit; he accepted it and acquired a right to recover for a breach of the contract made for his benefit by K. (the sender) notwithstanding the fact that he had not previously constituted the sender his agent for the purpose." W. U. Tel. Co. V. Beringer, 84 Tex. 38, 19 S. W. Rep. 336. Against AgentS) Bailees, Etc. 809 in the care with which defendant conducts its said business is a source of large profit and gain to said defendant. IV. That defendant holds out and represents to the world, that it will and does conduct its said business with reasonable care, diligence and dispatch, and that it will transmit, receive and deliver telegraphic and cable messages -in a diligent, competent and correct manner with all con- venient speed. V. That plaintiff relied upon said inducements and repre- sentations, and entered into a contract with said defendant, as hereinafter set forth. VI. That plaintiff, on or about the day of , 19 , was applied to by a person who then desired to purchase from plaintiff a certain French play or dramatic composition entitled "Pot Bouille," owned by parties in the city of Paris, in the repubUc of France, and then being produced and exhibited in that city; and said' applicant was then willing to pay plaintiff for said play the sum of dollars, but plaintiff was, at the time said apphcation was made to him, ignorant of the facts as to whether he could, purchase said play, and the price he would be required to pay therefor; that in oi;der to ascertain said facts plaintiff did on said day of , 19 , send a cable message "to one Thomas Linn, plaintiff's agent in Paris, which said message was as follows, to wit: "What is the lowest price at which you can buy 'Pot Bouille?'" On information and behef, 'that said Linn received said mes- sage promptly, and forwarded a reply to plaintiff, addressed "Mentor, New York," which said reply plaintiff subse- quently learned was received by defendant, and was in defendant's possession on the day of ,19 .^^ '2 This allegation does not cover the delivery made with the sender. But making of the contract; plaintiff later usually the agreement with the sender on alleges an agreement for the de- of the message is the only one made, livery of the message, made directly and should be specifically alleged. It by defendant with him. Under such was held in W. U. Tel. Co. v. Henry facts it would not be necessary to al- (Tex., 1894), 27 S. W. Rep. 63, that lege the contract for the sending and an averment that a message was de- 810 Abbott's Forms of Pleading That plaintiff called at defendant's office on said day of , 19 , and inquired if defendant had re- ceived a message addressed "Mentor, New York;" and plaintiff was informed by defendant that it had not received such message, but said defendant then represented and stated to plaintiff that any message sent by cable from Paris to New York would be received by and through defendant in New York; but said defendant did not then, nor at any time thereafter, deliver said message to plaintiff, although plaintiff alleges upon information and belief that said mes- sage, directed as aforesaid, was then in the possession and custody of defendant. Plaintiff further says that on said day of ,19 , he requested defendant to register the name and address of plaintiff in order that said message might be promptly delivered to plaintiff, and defendant then and there, pursuant to its custom and in the regular course of its business, did register the name and address of plaintiff in a book kept by defendant for such purpose, as follows, -to wit: "Mentor, New York, James F. Milliken, No. 19 West Twenty-fourth street, New York City;" and plaintiff then informed defendant that he was expecting a message from Paris, addressed "Mentor, New York," and that he believed said message had been sent and should be in the possession and custody of defendant; and that said message was of great importance to plaintiff, and involved a trans- action with regard to the sale of a play by plaintiff, and said transaction involved a large sum of money; and that plain- livered to and sent by the defendant telegraph company will not be liable does not sufficiently aver that de- for any damage unless a claim there- fendant entered into any contract to for is presented within a time speci- send it. The allegation should be, fied, is a condition subsequent, which "and the defendant thereupon, in need not be pleaded by plaintiff, but consideration of dollars, under- which is a matter of defense. W. U. took and agreed to correctly and Tel. Co. v. Finer, 9 Tex. Civ. App. promptly transmit and deliver said 152, 29 S. W. Rep. 56; Sherrill v. W. message," etc. U. Tel. Co., 109 N. C. 527, 14 S. E. A stipulation in the contract under Rep. 94. which the message was sent, that the Against Agents, Bailees, Etc. 811 tiff could do nothing with regard to it until he had received said message; and defendant then and there promised and agreed to and with the plaintiff that defendant would send such message, without delay, to plaintiff, at No. 19 West Twenty-fourth street, in said city of New York, if said mes- sage had been received or should be received by defendant; and defendant held out and represented to plaintiff, as hereinbefore set forth, that defendant would deliver said message to plaintiff safely, promptly and with diligence and dispatch; and plaintiff, relying upon said representations and inducements, and reposing confidence in the care with which defendant conducted its said business, as aforesaid, did then and there contract and agree with defendant for the delivery of said message by defendant to plaintiff, and said defendant undertook and agreed to and with this plain- tiff to deliver said message to plaintiff at No. 19 West Twenty fourth street, in tTie city of New York, safely, promptly and with diligence and dispatch; and plaintiff then offered to pay and reward said defendant in advance for said service and for registering plaintiff's name and address, but said defendant then declined to receive or accept pay or reward. VII. On information and belief, that defendant received said message and reply, addressed "Mentor, New York," prior to the day of j 19 , but said defend- ant, not regarding its said promise and undertaking, and well knowing the importance of said message, did not take due care to deliver said message to plaintiff, as agreed, although thereafter frequently solicited and requested to do so by plaintiff; and did not then deliver said message to plaintiff, nor at any time afterwards, but, on the contrary, the de- fendant so negligently and carelessly conducted itself with respect to said message and the delivery thereof that, by and through the carelessness and improper conduct of the defendant, its servants and employees, said message was never delivered to plaintiff, and is still in the possession and custody of defendant; and by reason of the premises in that behalf, and in consequence of the negligence of defendant 812 Abbott's Forms of Pleading as aforesaid, and not through any negligence or fault of this plaintiff, plaintiff lost the sale of said play, and suffered thereby loss and damage in a large sum of money, to wit, in the sum of , dollars; and plaintiff alleges that he has since ascertained the fact to be that said message con- tained information that plaintiff could purchase and secure said play at a price not to exceed dollars; and plain- tiff alleges that if defendant had delivered said message to plaintiff, as agreed, plaintiff would have sold said play for dollars, and would have realized thereby a profit of not less than dollars. Wherefore [etc.,. demand of judgment]. 752. The Same, Another Form for Failure to Deliver; Charging Knowledge by Defendant of Urgent Char- acter of Message. [Adapted from Mitchell v. Western Union Tel. Co., 5 Tex. Civ. App. 527, 24 S. W. Rep. 550.] '^ [After setting forth, in substance, that plaintiff lived at S., and was the owner of a ranch at M., on which he had head of cattle, under charge of his agent; that the water supply became suddenly reduced and insufficient, and that said agent delivered a message to defendant addressed to plaintiff as fol- lows: " Water is giving out. Come at once." That in plaintiffs absence his agent was unable to make necessary arrangements to secure sufficient water, but such arrangements could have been made by plaintiff, — the complaint continued:] That when said message was so delivered to and accepted by defendant, defendant was then and there notified of the aforesaid dangerous position of the said cattle; that they were upon the said ranch; that the water supply had run short, and that there was urgent necessity of the personal presence of the plaintiff in order that he might provide water for them, and *' Held, against demurrer, that was unnecessary to allege why plain- complaint sufficiently showed that tiff alone could procure the necessary defendant's neglect in delivering the water, nor how he could have pro- message caused the damage, and it cured it. Against Agents, Bailees, Etc. 813 that said message was intended to summon plaintiff with all possible speed to his ranch in order that he might make arrangements necessary to obtain the needed water. That plaintiff was then at his home at , as was well known to defendant, but that defendant negligently failed to deUver said message to him. That if said message had been delivered to plaintiff within a reasonable time, he could and would have gone forthwith to his said ranch, and could and would have provided water for his cattle in time to have prevented the injuries to them hereinafter set forth; that plaintiff was ignorant of the dan- gerous condition of said cattle, and remained absent from said ranch three days longer than he would have done had the message been delivered with reasonable diligence; that if it had been so delivered he would have arrived at said ranch three days earlier than he actually did, and could and would have provided water for his said cattle, and thus have prevented the injuries complained of. That during said [three] days said cattle were without sufficient water, whereby cattle, of the value of dollars, died, etc. WiiEREFORE [etc., demand of judgment], 753. Against Telegraph Company for Negligence in De- livering a Message Twice. [Sustained in May v. Western Union Tel. Co., 112 Mass. 90.] I. That, before and at the times hereinafter mentioned, plaintiff carried on at the trade of [buying and selling hardware and metals,] and C. D. & Co. and the plaintiff carried on the same business in copartnership by the name of C. D. & Co. at , and that in the course of business of said partnership the said C. D. & Co. resided at and when goods of the kinds aforesaid were required for sale in said , in the trade of said partnership, and said C. D. & Co. desired the plaintiff to procure the same in behalf of said partnership, and to send the same to said 814 Abbott's Forms of Pleading C. D. & Co. at said , to meet the said demand and requirement and for sale there as aforesaid, the said C. D. & Co. in the ordinary course of business caused messages to be sent by telegraph to the plaintiff requesting him to send the goods so desired, which messages and habit of said C. D. & Co. were well known and understood by plaintiff. II. That the defendant was during all that time possessed of a certain telegraph line extending to said from said , whereby it then exercised the employment of receiving, sending and delivering messages sent by persons in said to persons in said III. That on or about the day of , 19 , the said C. D. & Co., upon payment then and there made to defendant of its usual charge therefor, employed the de- fendant to send by its said telegraph from said to the plaintiff at said a certain message, whereby the said C. D. & Co. requested the plaintiff to send [325 seamless brass tubes], thereby meaning, in accordance with said course of business of said partnership, and as the plaintiff well understood, that the said tubes were required for sale in said in said trade there, and that they desired and requested the plaintiff to procure the same in behalf of said partnership, and send the same to said C. D. & Co., at said for the purposes aforesaid; that the defendant did thereupon deliver to the plaintiff at said a certain paper writing, whereon was written said message, and the plaintiff, on the receipt thereof, and in accordance with the request therein, did procure and send to said C. D. & Co., at said , for the purposes aforesaid, the tubes therein specified, which were there sold to the profit and advantage of the plaintiff. IV. That after the sending and delivery of the message aforesaid, the defendant so negligently and improperly conducted itself in the use and management of its said tele- graph that by reason of the negligence and want of due care of the defendant and its servants in that behalf, and after the said delivery of the paper writing and message aforesaid Against Agents, Bailees, Etc. 815 to the plaintiff, to wit, five days thereafter, a certain other paper writing was delivered by the defendant to the plaintiff at said , purporting to contain a certain other mes- sage sent by telegraph by said C. D. & Co., at said , to the plaintiffs at said , whereby said C. D. & Co. requested the plaintiff to send other [325 seamless brass tubes], by which last-mentioned message the plaintiff also understood, in accordance with said course of business of said partnership, that the said last-mentioned tubes were required for sale in said , in said trade there, and that said C. D. & Co. desired and requested the plaintiff to procure the same in behalf of said partnership, and to send the same to said C. D. & Co., at said , to meet said demand and requirement, and for sale as aforesaid. Whereas, in fact, said C. D. & Co. did not send said last- mentioned message, and the goods therein specified were not required for sale in said V. That the plaintiff being deceived by said last-men- tioned message, and understanding the same as aforesaid, did thereupon, in accordance therewith, procure in behalf of said partnership and send to said C. D. & Co., at said , for the purposes aforesaid, the said last-mentioned [325 seamless brass tubes]. [VI. Allege damages resulting from the second purchase.] Wherepoee [etc., demand of judgment]. 754. The Same, for Delay in Delivering a Message Con- taining a Conditional Order.^^ [After the usual allegations of defendant's corporate capacity and occupation, the complaint charged the defendant's receipt ** Adapted from Ferguson v. Tel. The New York statute (Transp. Co., 151 Pa. St. 211, 25 Atl. Rep. 40. Law, § 103) providing a penalty for Under the New York decisions, discrimination between senders of plaintiff probably could not recover telegrams, does not apply to delays on proof of a delay due merely to a in delivery caused by mistakes in mistake in the name of the addressee transmission. See Meyers v. W. U. causing delay in delivery. See Tel. Co., 82 Misc. 266, 143 N. Y. Monsees v. W. U. Tel. Co., 127 App. Supp. 574. Div. 289, 111 N. Y. Supp. 53. 816 Abbott's Forms of Pleading of and agreement to promptly transmit and deliver to plaintiff's foreign correspondent at L. a message, as follows: ^^ "Purchase for our account tons soda ash, provided shipment can be made per steamship K." III. That plaintiff, relying upon the defendant's said agreement for the transmission and delivery of said message, sold to one M. N.'said tons of soda ash to arrive on said steamship K. IV. That the defendant negUgently failed to deliver said message for the period of [six] days after its said receipt, to wit, until the day of , 19 ; that said mes- sage should, in the ordinary course of prompt transmission and delivery of such messages, have been deUvered on the day following, to wit, the day of ., 19 ; that such delay constitutes gross negligence on the part of the defendant. V. That said steamship K. did not sail until the day of , 19 , and said soda ash could and would have been purchased for account of plaintiff and shipped on said steamer, had said message been dehvered on said day of , 19 .«*' VI. That the market price of said soda ash at L. on said day of , 19 , was dollars per ton, and the cost of carriage thereof to plaintiff would have been the sum of dollars; that plaintiff was necessarily obliged to and did purchase said soda ash at P. [place of delivery], and paid therefor the sum of dollars, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 755. The Same — under Indiana Statute. [From Western Union Tel. Co. v. Cain (Ind., 1896), 42 N. E. Rep. 655.] 87 '^ These allegations are presented these facts were essential to the suffi- in previous forms, and are not re- ciency of the pleading, peated. '^ The court held that the complaint ^ The court held that allegations of stated a good cause of action, under Against Agents, Bailees, Etc. 817 I. [Defendant's corporate capacity and occupation as in pre- vious forms.] II. That on the day of , 19 , a brother of the plaintiff was temporarily residing at Clearwater, Pta., said brother being in poor health and having gone to Florida in hope of regaining his health and strength. That on said day one M. N. sent a message to plaintiff as follows: "Your brother took severe hemorrhage this morning. Come at once." That said message was received by the defendant at its office in the city of , State of , between the hours of and on said day. III. That the defendant knew that the plaintiff was a resident of the said city of , and was apprised of the necessity of the prompt delivery of said message by reason of its contents, but negUgently failed to deliver the same until [three] days thereafter, to wit, on the day of ,19 . IV. That if the message had been delivered promptly to the plaintiff upon its arrival at the city of , he would have started immediately for the city of Clearwater, Fla., and would have arrived there prior to the burial of his said brother. That by reason of the aforesaid failure to deUver said message he was prevented from seeing his brother before his burial, and was unable to see to the proper burial of his brother. Whereby he suffered great mental anguish, etc.^ Wherefore [etc., demand of judgment]. 756. To -Recover Statutory Penalty for Delay in Trans- mission of Message, under Georgia Statute. [Sustained in Smith v. Western Union Tel. Co., 94 Ga. 441, 19 S. E. Rep. 979.] «' the statute of the State of Indiana ** See note to Form 757. (R. S., §5513), making telegraph com- " The court held that a want of due panies Uable for special damages diligence was sufficiently charged caused by a failure to promptly under the statute. deliver messages. 818 Abbott's Forms of Pleading [After alleging defendant's corporate capacity and occupa- tion, and the sending of the message, as in previous forms:] III. That the agent of the company negligently held and permitted the message to remain in the sending office or re- ceiving office from an early hour of the aforesaid date until o'clock the night of the following day, when the same was delivered; that plaintiff has an office within hundred yards of the telegraph office of said com- pany at , and his residence is within yards of said office, and both his residence and office are well known to the agent of the company. IV. That no mention or notice of the receipt of said mes- sage was made to the plaintiff until at o'clock on the night of the day following the aforesaid date. Wherefore, plaintiff charges defendant with gross negligence and care- lessness in the deUvery of the message to him, especially in view of the fact that the message showed on its face that it was important and required prompt delivery. That for said negligence and disregard of duty the company became liable to plaintiff and to pay him the penalty of dollars as the statute provides. That it failed and refused to do so or to pay any part thereof, though often requested to do so. Wherefore [etc., demand of judgment]. 757. The Same, Delay in Delivering, Causing Mental Anguish.^" [From Western Union Tel. Co. v. Fore (Tex., 1894), 26 *> This is under the so-called "Texas Supp. 1109. The rule has application rule," permitting a party who has un- only to those messages bearing upon dergone mental suffering in con- their face evidence that a failure to sequence of the neghgent delay of the deliver will probably cause mental message, to recover damages without suffering, almost invariably relating proof of pecuniary loss. The courts to the sickness or death of a relative, of Kentucky, Indiana, Tennessee and The right of action is presumably in Alabama have also recognized a right the sender, but may be invoked on of recovery. The right is not recog- behalf of one in whose interest and for nized in New York. Curtin v. W. U. whose benefit the message was known Tel. Co., 13 App. Div. 253, 42 N. Y. by defendant to have been sent. Tel. Against Agents, Bailees, Etc. 819 S. W. Rep. 783; Same v. Eskridge, 7 Ind. App. 208, 33 N. E. Rep. 238.] [After the usual allegations of defendant's capacity and occu- pation, the petition charged the defendant's receipt and agree- ment to promptly transmit and deliver the following message: "To S. L. F. Your pa wants Hodge. Get here as soon as possible. J. L. R."] That on the date of the said message, the plaintiff's hus- band, D. W. F., was sick in the town of R. and died on the day following; that Dr. Hodge was plaintiff's and her hus- band's family physician; that at plaintiff's request the mes- sage was prepared and delivered to defendant at its office at R., at ten minutes past four o'clock on , 19 , by J. L. R., who paid defendant's agent cents for its transmission, and at the same time informed the agent that the telegram was a request from plaintiff to her son S. L. F. to bring Dr. H. at once to visit and treat professionally her husband, D. W. F.; that defendant was then informed that said D. W. F. was dangerously sick, and of the urgent neces- sity of the immediate delivery of the message; that defendant knew and was informed at the time of the sending of the message that J. L. R. was acting as the agent of plaintiff; that though defendant agreed to deliver the message with reasonable dispatch and promptness, it negligently failed to deliver it until ten o'clock in the afternoon of , 19 ; that by reason of such delay her son, J. L. F., was prevented from reaching his father,' ^ with Dr. H., before his death, which her said son would have been able to do had said mes- sage been delivered promptly. Wherefore, plaintiff suffered great mental anguish,'^ etc. Co. V. Beringer, 84 Tex. 38, 19 S. W. Eskridge, 7 Ind. App. 208, 33 N. E. Rep. 336; Tel. Co. v. Saunders, 32 Rep. 238. Fla. 434; 14 So. Rep. 148; and see '^ These damages are recoverable note 81 to Form 751. under a general averment of damage. " Sufficiently shows a desire and in- So Relle v. W. U. Tel. Co., 55 Tex. tent on the part of the one addressed 308, 40 Am. Rep. 805; Havener v. to respond to the caU. Tel. Co. v. W. U. Tel. Co., 117 N. C. 540, 22 S. E. Rep. 727. 820 Abbott's Forms of Pleading 758. The Same, by Husband for Injuries to Wife's Feel- ings; Allegation of Damage.^' That by reason of the defendant's willfulness, negligence and carelessness in not delivering the said message, as afore- said, the plaintiff and his wife were prevented from attending [the wife's father], said M. N., in his last illness, which caused them great suffering, mental anguish and remorse, and that plaintiff and his wife have suffered and been greatly injured in their feelings in the further sum of dollars. 759. Against Telegraph Company, for Mistake in Trans- mission of Message."'' I. [Allege plaintiff's business; in precedent was:] a cotton broker, engaged in buying and selling cotton on the New York Cotton' Exchange. II. [Defendant's corporate capacity, as in Form 44> con- tinuing:] and is incorporated for the purpose of carrying on the business of telegraphing for compensation, and is now and at all times hereinafter mentioned was carrying on that busi- ness, and receiving and delivering telegraphic messages for all persons choosing to employ defendant for that purpose and pay the compensation demanded by defendant therefor. III. That on or about the day of , 19 , defendant had and was maintaining an office for receiving, transmitting and delivering telegraphic messages [in the Exchange Room of the New York Cotton Exchange] on street, in the city of , and also a similar office on street in the City of »' Prom W. U. Tel. Co. v. Russel " xhe precedent is from Weld v. (Tex. Civ. App., 1897), 31 S. W. Rep. Postal Tel. Cable Co., 210 N. Y. 59 698, where, on review of a judgment (ano. dec. in 199 N. Y. 88). Plain- awarding damages for wife's mental tiff lost his verdict on appeal, the sufferings, it was held, that this al- court holding that the facts estab- legation is sufficient to entitle the lished were equally consistent with plaintiff to recover for the sufferings T;he absence as with the presence of of his wife, and that it was unnec- gross negligence, on which theory essary to state, by distinctive aver- alone defendant was liable in New ments, the specific damages sustained York under the limitations imposed by by the wife. the regulations on the message, blank. Against Agents, Bailees, Etc. 821 IV. [In the precedent it was alleged that defendant had direct wires between the two offices;] that over its wires defend- ant transmits without relay the great majority if not all of the messages relating to the purchase or sale of cotton de- livered to it. at either of its said offices. V. [In the precedent it was alleged that defendant employed special operators, that it knew the requirement of special skill and accuracy in the sending of messages relating to the purchase or sale of cotton, the rapid fluctuations of prices of thai com- modity, and that large profits or losses depended on the prompt and absolutely accurate transmission and delivery of the tele- graphic messages relating thereto; and that the members of said Cotton Exchange wholly relied on the exercise of great care and diligence on defendant's part in the conduct of its business be- tween sv^h offices.] VI. That on the day of , 19 , at about the hour of o'clock in the noon, plaintiff wrote and delivered to defendant at its said office in said Exchange a message in the following words : [in the precedent the words were:] Ellis N. 0. Sell 20 thousand Mch. 12.70 Weld, and requested defendant to telegraph said message to said City of and deliver the same there; that in consider- ation of cents paid to defendant by plaintiff, which was its usual charges therefor and all that defendant de- manded as compensation for the transmission and delivery of said message, ''•' defendant then and th,ere undertook to transmit said message correctly and promptly over its wires, and deliver the same correctly and promptly, and to use in such transmission and delivery great care, diligence and despatch, and the needed skill, rapidity and accuracy pe- culiarly necessary as aforesaid in connection with the business carried on on said Exchange. VII. That by the words "Ellis N. O." contained in said -5 A consideration must be alleged, White v. W. U. Tel. Co., 153 App. and it should be stated that it was Div. 684, 138 N. Y. Supp. 598. the payment of the usual charges. 822 Abbott's Forms of Pleading message plaintiff meant the name and address of the parties to whom said message was directed, to wit [names], a firm of cotton brokers operating on the said Cotton Exchange at ; that by the words "Sell 20 thousand Mch. 12.70" contained in the said message plaintiff meant that said firm of should immediately after the receipt of such mes- sage sell in open market on that Exchange for the account of the plaintiff twenty thousand bales of cotton for deUvery during the month of March, 19 , at the price of 12 70/lOOths cents per pound or better; that by the word "Weld" con- tained in such message plaintiff meant the plaintiff herein. VIII. That all of these abbreviations were usual and m accordance with the common practice and custom of mem- bers of said Exchange in telegraphing from said offices of said defendant, and defendant perfectly understood the same and the meaning of the said message when receiving it and undertaking to transmit and deUver it as aforesaid, and perfectly well knew at said time, both from the dis- closures upon the face of the said message and from the aforesaid pecuUar circumstances surrounding defendant's said offices and the business there transacted, that said message was an order of magnitude and importance, for the sale of a commodity of rapidly fluctuating price, to wit, cotton for future delivery, calfing for immediate and correct execution on the said Exchange at the prices there prevailing for such deliveries, down to and including, but not below, 12 and 70/lOOths cents per pound, and demanding extraor- dinary care and diUgence in its transmission and deUvery by defendant. IX. That defendant failed to transmit and deliver said message correctly, but on the contrary delivered it in a grossly incorrect form, as follows, to wit: [quote message as delivered, which in the precedent was:] Ellis Sell twenty thousand March 12.07 " In the absence of explanation, its face shows a less number of words the delivery of a message which on than the sender had sent establishes Against Agents, Bailees, Etc. 823 X. That in the transmission of said message defendant failed to exercise either care, or great care, or diligence, or the skill and accuracy peculiarly necessary as aforesaid in connection with the business carried on upon said Exchange; that defendant was negligent in so failing to exercise care in the transmission and delivery of said message, and in so failing to transmit and deUver said message correctly, and in deUvering it in the incorrect form hereinabove set forth; that the defendant was grossly negUgent in so failing to exercise great care and diUgence in the transmission and dehvery of said message, and in faihng to transmit and deUver the same correctly, and in deUvering it in the in- correct form hereinabove set forth, and was also grossly negUgent in so failing to exercise the. skill and accuracy pecuUarly necessary as aforesaid in connection with the business carried on on said Exchange in the. transmission and deUvery of said message, and in failing to transmit and deUver the same correctly, and delivering it in said incorrect form. XI. [Allege facts showing damage; ^^ in precedent as follows:] On information and belief, that the defendant delivered said message in said incorrect form to the said [addressee] on said day of , 19 , at about o'clock in the. noon according to the time in said city of ; that immediately upon receipt of said message, as so delivered, said [addressee] in conformity with the usual course of business proceeded to execute as rapidly as possible upon said Exchange the order so incorrectly transmitted and deUvered, and accordingly sold for plaintiff's account twenty thousand bales of March deUvery cotton at the best prices obtainable therefor in the open market on the said Exchange, as foUows [stating amounts and prices of sales]. gross negligence. Empire Rink Co. deliver a message which is only a V. W. U. Tel. Co., 75 Misc. 567, 133 step in incomplete negotiations be- N. Y. Supp. 717. tween the parties. See White v. W. " No damage other than nominal U. Tel. Co., 153 App. Div. 684, 138 can be recovered for the failure to N. Y. Supp. 598, citing 37 Cyc. 1760. 824 Abbott's Forms of Pleading XII. That said [addressee] immediately upon making such sales, and as promptly as possible, notified plaintiff by tele- graph thereof; that plaintiff thereupon perceived that an error had been made, and immediately telegraphed instruc- tions to said [addressee] forthwith to cover said sales and buy back said cotton, which on information and belief said [addressee] did in accordance with the ordinary course of business and at the lowest prices possible, to wit [stating prices of purchase]. That the difference between the prices at which the said cotton was so sold, and the prices at which said cotton was repurchased, aggregated the sum of dollars, all of which plaintiff has been compelled to pay out and has lost by reason of defendant's said failure to correctly transmit and deliver said message, and its transmission and delivery of the same in the said incorrect form as herein- above stated. XIII. That by reason aforesaid plaintiff has sustained damage in the sum of dollars. Wherefore [etc., demand for judgment]. VII. WAREHOUSEMEN 760. For Loss of Goods.'^ [Under N. Y. Gen. Business Law, § 107.] ■ I. That at all the times hereinafter mentioned defendant conducted and carried on the business of warehouseman ^ Form adapted from complaint in lish the existence of a lawful excuse Lichtenstein v. Jarvis, 164 N. Y. 601, for non-delivery. See N. Y. Gen. aff'g 31 App. Div. 33, 52 N. Y. Supp. Business Law, §§ 95, 107. But if, 605. either in the course of his own, or A warehouseman, in the absence of the defendant's proof, this presump- bad faith, is liable only for negligence, tion of negligence is overcome, plain- and the owner of the goods who tiff must bring further evidence in alleges their loss must also allege and order to carry his burden of proof, prove negligence. If he proves de- Kaiser v. Latimer, 9 App. Div. 36, mand upon he warehouseman and 40 N. Y. Supp. 150; Herrman v. N. E. the latter's refusal to deliver, these Nav. Co., 143 App. Div. 551, 128 facts are prima fade evidence of N. Y. Supp. 380. liability and defendant must estab- Against Agents, Bailees, Etc. 825 at , and was engaged in the business of storing goods for hire. II. That on or ^bout the day of , 19 , at , the defendant, in consideration of the sum of dollars, then and there paid [or, agreed to be paid; or, of a reasonable compensation agreed to be paid] to him by the plaintiff, agreed to store and safely keep in his ware- house at certain merchandise, the property of the plaintiff, of the value of dollars, consisting of [here briefly describe goods], until the same should be called for by the plaintiff [or, for the term of* months from said date, or othervnse], and to return said goods to the plain- tiff [or his order] upon demand; that plaintiff then and there delivered said goods to the defendant, and defendant then and there received the same for said purpose. III. That on or about the day of , 19 , plaintiff duly demanded the return of said goods ^ [and duly offered to satisfy any lien thereon, and to surrender the receipt issued by defendant to plaintiff for said [goods] and plaintiff was ready and willing and offered to sign upon the delivery of said [goods] as acknowledgment that they have been delivered] "" but defendant failed and refused to return the same or any portion thereof. A-nd may add if inaccordance with fact: IV. On information and belief, that the defendant did not safely keep said goods, but while the same were in his warehouse, and solely through defendant's negligence in failing to take proper care thereof, they were wholly lost and destroyed, to plaintiff's damage dollars."^ Whbrefoke [etc., demand of judgment], 89 Demand for return need not be Or, the allegations may be, that made or alleged if goods were de- no lien existed, and that no receipt stroyed. Buffalo Grain Co. v. was requested. Sowerby, 195 N. Y. 355. "' Where a warehouseman falsely ™ These bracketed allegations fol- represents that his warehouse is fire- low the provisions of the statute proof, plaintiff may sue in fraud and (Gen. Business Law, § 95) throwing deceit if his property has been de- upon defendant the burden of ex- stroyed by fire. Dietz v. Yetter, 34 c using a refusal to deliver. App. Div. 453, 54 N. Y. Supp. 258. 826 Abbott's Forms of Pleading 761. For Injury to Goods, by Neglect to Obey Special Instructions.^"^ I and II. [As in Form 760.] III. That at the time of the deUvery of said goods to the defendant the plaintiff informed defendant that it was necessary to the preservation of said goods that they should be kept in a dry condition [or, be handled with care, or other- wise, according to fact], and defendant agreed that he would so keep the same. IV. That the defendant negUgently allowed the same to become wet [or, to be handled without care, and roughly moved and broken, or otherwise show breach], so that the' same, through the negligence of the defendant and his serv- ants, became greatly injured [or, entirely ruined], to the damage of the plaintiff dollars. Wherepoee [etc., demand of judgment]. 762. For Refusal to DeUver.i"^ [Under N. Y. Gen. Business Law, § 95.] I and II. [As in Form 760.] III. That on or about the day of , 19 , at , the plaintiff duly requested the defendant to deliver the said goods, and then and there duly tendered him dollars which said sum was the amount then due thereon for storage, and offered to surrender the receipt issued to him by defendant for said goods, and offered to sign a re- ceipt upon the delivery thereof acknowledging the return of said goods; but the defendant refused and still refuses to de- liver the same, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 763. For not Forwarding Goods According to Agreement."^ I. That at the times hereinafter mentioned, the defendant '"2 Where the agreement provided fire notwithstanding it occurred with- that the goods were to be stored in a out negligence on his part. Mortimer designated building, but defendant v. Otto, 206 N. Y. 89. stored the goods elsewhere, it was "" See notes to Form 760. held he was liable for their loss by "* The liability of a forwarder, dur- Against Agents, Bailees, Etc. 827 was a forwarding agent and keeper of a warehouse at , for the reception of goods intended to be forwarded by him for hire, from to II. That on or about the day of , 19 , the defendant received from the plaintiff certain merchan- dise, to wit [briefly describing it], the property of the plaintiff, of the value of dollars, which he undertook for hire to forward in a reasonable time from to , by [a vessel], and meanwhile to store and safely keep the same. III. That after the defendant received said goods, such a [vessel] did, within a reasonable time then following, to wit, on or about the day of , 19 , proceed from said to , and the defendant might and ought to have delivered the said goods to the [master of such vessel] for the purpose aforesaid. IV. That the defendant did not do so, or otherwise for- ward said goods within a reasonable time, but kept and de- tained the same in his said warehouse for a long and Un- reasonable time, to wit, [two months], whereby the said [goods] became wholly valueless, to the damage of the plain- tiff dollars. [// the goods were forwarded tardily, whereby plaintiff lost a favorable market, allege this specifically, as matter of special damage.] Wheeefore [etc., demand of judgment]. ing the time previous to shipment of Barron v. Eldredge, 100 Mass. 455, goods, is that of a warehouseman. I Am. Rep. 126. Stannard v. Prince, 64 N. Y. 300; CHAPTER XXXI COMPLAINTS IN ACTIONS AGAINST SHEBIFFS ^ PAGE 764. For neglecting to return execution 828 765. For wrongfully releasing replevied property 830 766. For neglecting to levy 831 767. For neglecting to arrest under body execution 832 768. For neglecting to pay over moneys collected on execution 833 769. For seizing goods which were exempt from execution 834 770. For a false return 834 771. For an escape; common form, where right to body execution depends upon nature of the action 835 772. The same, where right to body execution depends upon previous granting and execution of an order of arrest 837 773. For escape from custody upon an order of arrest 838 774. Upon sheriff's liability as bail, under the N. Y. Code of Civil Pro- cedure, § 587 839 764. For Neglecting to Return Execution.^ I. That at the times hereinafter mentioned, the defendant was the sheriff of the county of , in this State.' II. That on or about the day of , 19 , ' These forms are appropriate for Campbell, 15 Johns. (N. Y.) 456; cases where a sheriff is sued for a Bank of Rome v. Curtiss, 1 Hill breach of his official duty. Com- (N. Y.), 275. The same rights exist plaints in actions on his bond are upon failure to pay over moneys given, ante, under chapter on Ofpi- collected. Hatfield v. Hatfield, 15 ciAL Bonds. N. Y. St. Rep. 788. Where a sheriff is sued for a levy or A sheriff or marshal who without arrest which was unauthorized, it is authority procures an extension of not necessary to aver his official char- the time to return is liable under acter. The forms given for ordinary Code Civ. Pro., § 102. McGuire v. actions for injuries to property or Bosher, 52 App. Div. 276, 65 N. Y. person wiU be appropriate. Supp. 382. 2 Upon the sheriff's neglect to re- " This allegation is sustained by turn an execution the plaintiff may proof that defendant acted as sheriff, compel a return by attachment, or without proving his official appoint- he may sue for the neglect. Burk v. ment or election. 828 Actions Against Sheriffs 829 * in an action in the Supreme Court of this State, in the county of [or, in the County Court of the county of , in this State, or other court, or, before K. L., a justice of the peace in and for the town of , in the county of , in this State], wherein this plaintiff was plaintiff, and one M. N. was defendant [or otherwise], judgment was duly given by said court in favor of this plaintiff and against the said M. N. for dollars,* [or, where the judgment was in a justice's court, duly given by said justice against said M. N. for dollars, which judgment was there- after duly docketed in the oflSce of the clerk of the county of ]. III. That on the day of , 19 , an execution against the property of said M. N. was duly issued by plaintiff on said judgment, and directed and then delivered to the defendant, as said sheriff of the said county of , of which execution a copy is hereto annexed marked "A" and made part hereof: [annex copy of the execu- tion and indorsement] — [or, state its substance, — e. g., thus, whereby said defendant was directed to satisfy said judg- ment out of the personal property of said M. N., in said county, or if sufficient personal property could not be found, then out of the real property belonging to him on the day when said judgment was docketed in said county, or at any time thereafter, and return said execution to within sixty days after the receipt thereof by him].= '' The fact that a judgment has been is not bound to act if the process or recovered which plaintiff has an in- judgment is void for want of jurisdic- terest in having executed, is a fact tion. Cornell v. Barnes, 7 Hill essential to the existence of the cause (N. Y.), 35; Housh v. People, 76 111. of action Forsyth v. Campbell, 15 487. Hun (N. Y.), 235;] and if denied in ' If the execution was against the the answer it is error to direct judg- person, state it accordingly. See post, ment for plaintiff without proof. Form 771. It is not, however, nec- Ansonia Brass Co. v. Conner, 62 How. essary to set forth the several steps in Pr. (N. Y.) 272. Plaintiff cannot the action on which the mere regular- rely upon the rule that process valid ity of the process depends. It is on its face is a protection; the officer enough, after shomng jurisdiction to 830 Abbott's Forms of Pleading IV. That more than sixty days have elapsed since the delivery of said execution to the defendant, and before the commencement of this action, yet defendant has, in viola- tion of his duty as such sheriff, failed to return the same,® to the damage of the plaintiff dollars^ Wherefore [etc., demand of judgment]. 765. For Wrongfully Releasing Replevied Property.^ I. [As in Form 764-] II. That prior to the times hereinafter mentioned plain- tiff had sold on credit and dehvered to one M. N. [state char^ acter of property] of the value of dollars; that said sate was induced by fraudulent representations upon the part of said M. N., in that [state facts showing fraud as in actions for fraud and deceit]. III. That upon discovery of said fraud, plaintiff duly elected to rescind said sale, and so notified said M. N., and duly demanded the return of said [goods] which said M. N. refused. IV. That thereupon, and on or about the day of , 19 , plaintiff brought an action in the court in the county of for the possession of said chattels and damages for the detention thereof; that on said day plaintiff also duly caused to be made an affidavit, issue the process, to allege that it was whole amount could not with due duly issued. French v. Willett, 4 diligence be collected. Pach v. GU- Bosw. (N. Y.) 649, 10 Abb. Pr. 99. bert, 124 N. Y. 612, 20 Civ. Pro. R. * A request to return is not nee- 300; Sweezy v. Lott, 21 id. 481; Led- essary to be alleged or proved. Corn- yard v. Jones, 7 N. Y. 550, aff'g 4 ing V. Southland, 3 Hill (N. Y.), 552; Sandf. 67; Pardee y. Robertson, 6 Hill Fisher v. Pond, 2 id. 338; Howden v. (N. Y.), 550. It is no defense to show Stannish, 6 C. B. 504, 60 Eng. Com. that the execution was returned a few, L. R. 503. days after the expiration of the sixty ' In an action for neglecting to re- days. Brookfield v. Remsen, 1 Abb. turn an execution against property it Ct. of App. Dec. (N. Y.) 210. h not essential to aver any special ^ Adapted from the complaint in damage. The amount due on the Albany Belting, etc., Co. v. Grell, judgment is prima fade the measure 67 App. Div. 81, 73 N. Y. Supp. 580, of damages; and the burden of proof which the court .held suflSciently is with the defendant to show that the stated a cause of action. Actions Against Sheriffs 831 wherein were duly shown the above facts and also the further facts required by law to entitle plaintiff to replevy said chat- tels, together with an undertaking in due form of law as re- quired in such actions of replevin. V. That on said day plaintiff duly delivered said affidavit and undertaking to said defendant, together with a requisi- tion wherein said defendant was duly required to replevy the said chattels, and the summons and complaint in said action, and copies of all thereof; that defendant duly approved said undertaking, and plaintiff duly paid to defendant his legal fees for replevying said chattels, which defendant accepted and has retained. VI. That thereafter and on or about the day of , 19 , defendant duly replevied said chattels from said M. N., and obtained possession thereof. VII. That thereafter the defendant released and relin- quished said chattels to some person or persons to plaintiff unknown, and has failed and refused to hold possession thereof as required by law. VIII. That plaintiff has suffered damage in the sum of dollars. Wherefore [etc., demand for judgment], 766. For Neglecting to Levy. I, II and III. [As in Farm 764.] IV. On information and belief, that at the time of the said delivery of the execution to the defendant there was within said county [personal] property belonging to the de- fendant,' to wit [designate it briefly], out of which the de- fendant might have satisfied the said judgment [of which property he then and there had knowledge and notice]; ^" ' This allegation is necessary in tion debtor would probably be un- order to establish a breach of duty necessary if the complaint charged rendering defendant liable for the a willful neglect to execute under N. Y. amount of the execution or any part Code Civ. Pro., § 103. of it. Lawton v. Erwin, 9 Wend. "• The allegation of notice is usual, (N. Y.) 2331 The allegation of the but seems unnecessary. Tomlinson possession of property by the execu- v. Rowe, Hill & D. Supp. (N, Y.) 410. 832 Abbott's Forms of Pleading nevertheless, in violation of his duty as such sheriff he failed to levy thereupon, or to satisfy said judgment," or any part thereof, as by said execution he was required to do, and has returned the same wholly unsatisfied,'^ to the damage of the plaintiff dollars.'^ Wherefore [etc., demand of judgment]. 767. For Neglecting to Arrest under Body Execution. I, II and III. [As in Form 764, except that the allegations in P. Ill should show that the execution was against the person. See Form 771 for an escape, post.] IV. That before the return of said execution, to wit, on or about the day of , 19 > defendant had notice that said M. N. was within his said county, and de- fendant could and should have arrested said M. N. by virtue of said execution; but defendant, in violation of his duty, failed to arrest said M. N. and [willfully] neglected the ex- ecution of said command '* [and falsely returned on said order to said court that said M. N. was not found in his said county], to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. The averment of the defendant's special damage. MuUett v. Challis, 16 neglect was held sufficient in Mullet Q. B. 239, 20 Law J. R. (N. S.) Q. B. V. Challis, 16 Q. B. 239. See note 11, 161, 15 Jur. 243. below. ^'' If the execution has not been re- " A complaint against the sheriff turned, there must be an allegation alleged that, although defendant that a reasonable time to make such could have levied of goods of the levy has elapsed before the corn- execution debtor within his bailiwick mencement of this action. Slade v. the moneys indorsed on the writ, yet Hawley, 13 M. & W. 765. defendant, disregarding his duty, did " Prima fade the damages are the not levy of the said goods, the moneys amount due on the execution. Spe- or any part thereof, and that defend- cial damages need not be averred. ant, further disregarding his duty, Ledyard v. Jones, 7 N. Y. 650; falsely returned, etc. Held, that the Clough v. Monroe, 34 N. H. 381; first allegation sufficiently charged a Evans v,. House, 26 Ohio St. 488. breach of duty and applied to im- If such amount could not have been proper conduct of the sheriff in the realized, it is matter of defense. Id. sale of goods as well as to negligence " Held sufficient in Dinninny v. in omitting to levy, and that the Fay, 38 Barb. (N. Y.) 18. complaint was good without stating Actions Against Sheriffs 833 768. For Neglecting to Pay Over Moneys Collected on Execution.^'' I. [As in Form 764.] II. That on or about the day of , 19 , an execution was duly issued out of the Court of , and directed to the defendant as such sheriff, in form and effect as required by law, against the property [or, the person] of one M. N., and in favor of the plaintiff, upon a judgment for the sum of dollars theretofore duly given in favor of the plaintiff against said M. N., in the said Court of ; ^^ that, said execution was by the plaintiff duly deUvered to the defendant as such sheriff. III. That the defendant thereafter, as such sheriff, col- lected and received upon and under said execution, to the use of the plaintiff, the sum of dollars, besides his lawful fees and poundage. IV. That more than sixty days have elapsed, after the delivery of said execution to the defendant, before this action, but defendant, in violation of his duty as such sheriff, has failed to pay over to the plaintiff the amount so collected" [or to pay said sum into said court]. Wherefore [etc., demand of judgment]. '* An action in tort for breach of duty, or of assumpsit for money had and received, at the option of the plaintiff, may be maintained against the sheriff for money collected by him on execution and not paid over. Dy- gerl; ads. Crane, 1 Wend. (N. Y~>) 534; Shepard v. Hoit, 7 HiU (N. Y.), 198. Or, plaintiff may proceed in the orig- inal action by rule of court, i. e., by an application for an attachment. Hatfield v. Hatfield, 15 N. Y. St. Rep. 788. But to render a deputy or under sheriff liable to the creditor, in such a case, an express promise must be shown. Tuttle v. Love, 7 Johns. (N. Y.) 470; Paddock v. Cameron, 8 Cow. (N, Y.) 212; and see Colvin v. Hol- brook, 2 N. Y. 126, affirming 3 Barb. 475. '* It seems that in an action for not paying over moneys collected under the execution, it is enough to show the delivery of the execution without proving the judgment. Elliot v. Cronk, 13 Wend. (N. Y.) 35; and see 1 Cow. Tr. 322. And it is no defense to the sheriff to show that the process was voidable. Bacon v. Cropsey, 7 N. Y. 195; and see Ontario Bank v. Hallett, 8 Cow. (N. Y.) 192; Grosvenor v. Hunt, 11 How. Pr. (N. Y.) 355; Ginochio v. Orser, 1 Abb. Pr. (N. Y.) 433. " No demand on the sheriff is nec- essary. It is his duty to pay over 834 Abbott's Forms of Pleading 769. For Seizing Goods which were Exempt from Execu- tion. [This form need not differ from the ordinary forms in Con- version and Trespass; see post, under those titles.] ^^ 770. For a False Return. [Sustained in Bacon v. Crop^ey, 7 N. Y. 195.] I. That at the time of the issuing and return of the execu- tion hereinafter mentioned, the defendant was the sheriff of the county of , in this State. II. That on or about the day of , 19 , a judgment was duly given by the Supreme Court, in and for the county of , [or other court] against one M. N., and in favor of this plaintiff, for dollars " [or other- wise, as in Form 764]- III. That on or about the day of , 19 , an execution against the property of said M. N. [or, if the judgment was against several joint debtors on service of part only, say, against the joint property of M. N. and 0. P., and against the separate property of O. P.^, was duly issued upon said judgment by the plaintiff, and directed and then delivered to the defendant as such sheriff, of which execution, and the indorsement thereon, a copy is hereunto annexed marked "A" and made part hereof [or, whereby the de- fendant was required, etc., stating effect as in Form 764]. without demand. Brewster v. Van taking. If the defendant had any au- Ness, 18 Johns. (N. Y.) 133; Pope v. thority to take the plaintiff's prop- Hays, 1 Mo. 450. The allegation of erty, he is bound to set it up in the failure to pay over is essential. Hoag pleadings, and prove it as matter of. V. Warden, 37 Cal. 522. Heavy defense. Dennis v. Snell, 50 Barb" penalties are added in California for (N. Y.) 95; Bedell v. Carll, 33 N. Y. neglect to pay over. Pol. Code, 581; Stevens v. Somerindyke, 4 E. D. §4181. Smith (N. Y.), 418. No demand is " The fact that the defendant is necessary. Hicks v. Cleveland, 48 sheriff is no part of plaintiff's cause of N. Y. 84. action. It is not necessary to allege " In an action for a false return, the that the goods were exempt from levy plaintiff must prove a valid judgment, under execution. It is suflBcient for McDonald v. Bunu, 3 Den. (N. Y.) the plaintiff to allege an unlawful 45. Actions, Against Sheriffs 835 IV. On information and belief, that the defendant as such sheriff, did, within sixty days thereafter, by virtue of said execution, levy on^ certain personal property of said M. N., within said county, of the value sufficient to satisfy said judgment [or, said judgment in part, to wit, to the amount of dollars], together with the defendant's fees and poundage. V. That notwithstanding the premises, and in violation of his duty as sheriff, defendant did not satisfy said judg- ment or any part thereof; but has falsely returned upon said execution to the clerk of the county of , that said M. N. had not any goods or chattels within said county,; whereby he could cause to be levied the amount of said judgment, or any part thereof,^" to the damage of the plain- tiff dollars. Wherefore [etc., demand of judgment], 771. For an Escape; Common Form,^' where Right to Body Execution Depends upon Nature of the Action. I. That at the time of the issuing of the execution and of the escape hereinafter mentioned, the defendant was the sheriff of the county of , in this State. II. That on or about the day of , 19 , in an action brought in the Supreme Court of this State, in the county of [or other court], by this plaintiff against one M. N.* [or, by one M. N. against this plaintiff], for wrongfully converting property [or state other case au- thorizing arrest, see N. Y. Code Civ. Pro., § 549], judgment '" The complaint should show that upon his statutory liability as bail, the return was false, and that the re- under N. Y. Code Civ. Pro., § 587. spect in which it was false is material. In Smith v. Knapp, 30 N. Y. 581, 591, Kidzie y. Sackrider, 14 Johns. (N. Y.) the court contrasts the . different lia- 195. It is not necessary to also aver bilities and the necessary averments that he made the false return fraud- in each action, ulently or deceitfully. Peebles v. See Buttling v. Hatton, 30 App. Newsom, 74 N. C. 473. Div. 191, 51 N. Y. Supp. 305, for " Plaintiff has an election whether complaint by sheriff against sureties to proceed on the common-law lia- on bond for jail liberties, after judg- bility of the sheriff for an escape, or ment against him on an escape. 836 Abbott's Foems op .Pleading was duly given by said court in favor of this plaintiff and against said M. N. for dollars. III. That on or about the day of , 19 , an execution against the property of said M. N. was duly issued ^^ by this plaintiff on said judgment to the sheriff of the county of , where said M. N. resided, and there- after duly returned wholly unsatisfied [if partly satisfied, add, except as to the sum of dollars]. IV. That thereafter and on or about the day of , 19 , an execution against the person of the said M. N. was duly issued " by this plaintiff on said judgment, and then directed and delivered to the defendant as said sheriff, whereby he was required to arrest said M. N. and to commit him to the jail of said county of , until he should pay said judgment, or be discharged according to law. V. That thereafter the defendant, as such sheriff, arrested said M. N. and committed him to jail, pursuant to said execution ^' but in violation of his duty as such sheriff, has since, to wit, on or about the day of , 19 , unlawfully and without the consent of the plaintiff,^* suf- fered and permitted said M. N. to escape ^' and go at large '^ Sufficiently shows the regularity tual knowledge of it. Toll v. Alvord, of the issuance of the process. French 64 Barb. (N. Y.) 568. But it is im- V. Willett, 4 Bosw. (N. Y.) 649, 10 material whether the going at large Abb. Pr. 99. was negligently or voluntarily per- ^' This action cannot lie when the mitted by the sheriff; in either case sheriff has never had the prisoner in the action lies. Dunford v. Weaver, his custody either actually or con- 84 N. Y. 445. Justification of a dis- structively. Saffier v. Dike, 82 App. charge is of course an affirmative de- Div. 485, 81 N. Y. Supp. 593. fense. See Seward v. Wales, 40 App. " The general authority of the at- Div. 539, 68 N. Y. Supp. 42, aff'd 167 torney as such, is not sufficient to au- N. Y. 538. thorize the sheriff in discharging the In Battle v. Nat. Surety Co., 78 prisonei upon his consent. Kellogg v. Misc. 253, 138 N. Y. Supp. 46, it was Gilbert, 10 Johns. (N. Y.) 220. held to be a defense to show that the ''' "Permitted" imports merely judgment had been taken by default that the sheriff "did not prevent;" it and had been since vacated and the does not necessarily import or involve defendant allowed to interpose an the allegation that he actively con- answer. The old forms contain an eented to the escape, or had any ac- averment that the debtor is still at Actions Against Sheriffs 837 out of defendant's custody and beyond the liberties of the jail in said county, and said M. N. did escape and go at large beyond the liberties of said jail, without the assent of the plaintiff. VI. That [said M. N. was and now is solvent and able to pay said judgment and] by reason of the premises plaintiff has been damaged dollars.^* Wherefore [etc., demand of judgment], 772. The Same, Where Right to Body Execution Depends upon Previous Granting and Execution of an Order of Arrest." I. [As in preceding form.] II. [As in preceding form to *, continuing:] to recover the amount of a debt fraudulently contracted by said M. N., an order of arrest was duly granted by Hon. J. K., one of the justices of said court, whereby the defendant was re- quired forthwith to arrest said M. N.; that thereafter the defendant, as such sheriff, arrested said M. N. and com- mitted him to jail pursuant to said order; that said order has not been vacated. III. That thereafter, and on or about the day of , 19 , judgment was duly given in said action by said court in favor of plaintiff and against said M. N. for dollars. large; but a return or recapture is a of the debtor is, therefore, no defense matter of defense, which need not be under the statute. Dunford v. negatived. See 2 Greenl. on Evi- Weaver, 84 N. Y. 445; Zenner v. dence, § 589. Blessing, 4 N. Y. Supp. 866. » If the action is brought merely " N. Y. Code Civ. Pro., § 1487, ' for the escape of the debtor, the in- subd. 2. The invalidity of process is solvency of the debtor if established not obviated or waived because the will require the dismissal of the com- defendant remained for a time in cus- plaint. Buczjmski v. Anderson, 174 tody; a failure to deny that an execu- App. Div. 790, 161 N. Y. Supp. 697. tion was duly issued is not such an But if the sheriff has become liable as admission of its regularity as pre- bail, the measure of damages for an eludes a defense that it was irregular escape is the sum of money for which and void. Goodwin v. Griffis, 88 N. the prisoner was committed (N. Y. Y. 629. Code Civ. Pro., § 158) and insolvency See notes to preceding form. 838 Abbott's Forms of Pleading [Continue as in III, IV, and VI of preceding form.] Wherefore [etc., demand of judgment]. 773. For Escape from Custody upon an Order of Arrest.^s [Adapted from Buczynski v. Anderson, 174 App. Div. 790, 161 N. Y. Supp. 697; Cosgrove v. Bowe, 14 N. Y. Weekly Dig. 446, 2 Civ. Pro. R. 61.] I. [As in Farm 771.] II. That on or about the day of , 19 , plaintiff was the owner of and entitled to the immediate possession of [describe property] ; that on said day one M. N. wrongfully took said [property] from plaintiff's possession and converted the same to his own use; that said [property] was then of the value of dollars. [Or, otherwise allege a cause of action giving a right to an arrest under N. Y. Code Civ. Pro., §§ 549, etc.] III. That on or about the day of , 19 , plaintiff duly commenced an action in the [Supreme] Court of this State, in the county of [or other court], against said M. N. for the aforesaid wrongful conversion of plaintiff's said property; that in said action, and on or about the day of , 19 , an order was duly made by , one of the justices of said cotort, whereby the de- fendant, as such sheriff, was required to arrest the said M. N. and hold him to bail in the sum of dollars. IV. That thereafter and on or about the day of , 19 , said order was duly deUvered to the de- fendant, as said sheriff, to be executed. V. On information and beUef, that thereafter the defend- ant, as such sheriff, arrested said M. N. and committed him to jail, pursuant to said order; but, in violation of his duty as such sheriff, on or about the day of , 2* An action can be maintained might discharge a prisoner held under against the sheriff under N. Y. Code mesne process without bail if he pro- Civ. Pro., § 587, for an escape where duced him on the return day. Cos- the prisoner is held under mesne pro- grove v. Bowe, 2 Civ. Pro. R. (N. Y.) cess. At common law the sheriff 61. Actions Against Sheriffs 839 19 , without the consent of this plaintiff, and without hav- ing received the deposit or the bail as by statute required, permitted said M. N. to go, and on or about said date said M. N. went, and has since been, and now is, at large beyond the Uberties of said jail, without the assent of the plaintiff. yi. That on or about the day of , 19 , plaintiff duly recovered judgment in said action against said M. N. for the sum of dollars; that thereafter and on or about the day of , 19 , an ex- ecution was duly issued against the property of said M. N. to the sheriff of the said county of ^ , wherein said M. N. had been arrested as aforesaid [and wherein said M. N. then resided] and said execution has been by said sheriff here- tofore returned wholly unsatisfied. [7/ the judgment debtor resided in another county, also allege:] That an execution upon said judgment was also and on or about the day of , 19 , duly issued to the sheriff of the county of , wherein said M. N. then resided, and has also heretofore been duly returned wholly unsatisfied. VII. That an execution against the person of said M. N. was thereafter, and on or about the day of , 19 , duly issued on said judgment to the defendant, and was by him duly returned on or about the day of , 19 , imexecuted for the reason that said M. N. was not and could not be found in said county. VIII. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 774. Upon Sheriff's Liability as Bail. [Under N. Y. Code Civil Procedure (§ 587). 2*] ^ Adapted from Metcalf v. Stryker, founded on § 587 of the N. Y. Code of 31 N. Y. 255, aff'g 10 Abb. Pr. (N. Y.) Civ. Pro., which declares that in case 13, 31 Barb. 62; Buczynski v. Ander- defendant escapes after arrest, the son, 174 App. Div. 790, 161 N. Y. sheriff shall be Uable as bail, etc. The Supp. 697. A distinction is to be two actions are governed by different noticed between the action against rules, both in respect to the liability the sheriff for an escape, and an action of the oflScer and in respect to the 840 Abbott's Forms of Pleading T. That .at the times hereinafter named, the plaintiffs were co-partners, doing business in the city of New York, under the firm name of M. & D. II. That the defendant was sheriff of the county of , on and from the day of , 19 , to the day of ,19 . III. That an order of arrest, of which a copy is annexed as part of this complaint, marked Schedule A, was duly made by Hon. J. K., at that time a justice of the Supreme Court of this State, and duly deUvered to the said defendant, on or about the day of , 19 , in an action in said court, wherein these plaintiffs were plaintiffs, and one M. N. was defendant, requiring the defendant in this action to arrest and hold the said M. N. to bail, in the simi of dollars. IV. That thereupon the defendant arrested said M. N., on or about the day of , 19 , [but thereafter permitted him to escape from his custody; '"] and on or about the day of , 19 , the said defendant delivered to the plaintiff's attorneys, by whom the order of arrest was subscribed or indorsed, a paper purporting to be a certified copy of an undertaking of the bail taken by him upon the discharge of the said M. N. from arrest, a copy of which is annxeed as a part of this complaint, and marked Schedule B; but the same was not executed by two or more sufficient bail, and did not state their places of residence and occupations, according to law; and that on the next day [or, within ten days thereafter], to wit, on or about the day of , 19 , a notice was duly served by limitation of time within which they Civ. Pro. R. 368; Daguerre v. Orser, may respectively be brought, etc. 3 Abb. Pr. (N. Y.) 86, where the dis- And it is held that in an action tinction is discussed, brought in form for an escape, the '" See Nehresheimer v. Bowe, 3 plaintiff ought not to be allowed to N. Y. Civ. Pro. R. 368. Allegations amend his complaint so as to found that the prisoner escaped are irrele- the action upon the statutory liability vant, to an action seeking to hold the as bail. See Smith v. Knapp, 30 N. Y. sheriff as bail, and should be stricken 581; Nehresheimer v. Bowe, 3 N. Y. out on motion. Id. Actions Against Sheriffs 841 plaintiffs on the defendant, that the plaintiffs did not ac- cept the said bail; that after the receipt of the said notice by the defendant, neither the defendant nor the said M. N., gave to the plaintiffs or their attorneys, by whom the said order of arrest was subscribed, notice of the justification of the same, or of other bail, before a justice of the court or a county judge, at any specified time or place, nor any justi- fication, or other notice of justification, as required by law." V. That on or about the day of , 19 , the plaintiffs duly obtained judgment in said action against said M. N. which was duly given in said court for dollars, and thereafter and on -the day of , 19 , plaintiff caused [to be filed a transcript of said judg- ment in the office of the clerk of county, and] an execution to be duly issued upon said judgment to the then sheriff of said county, in which county said M. N. then resided, against the property of said M. N., which was there- after returned by said sheriff, wholly unsatisfied; and, there- after, and on the day of , 19 , an execu- tion against the person of said M. N. was duly issued to the said sheriff, which has also been returned and indorsed by the said sheriff, "defendant not found." VI. That the said judgment has not been paid, nor any part thereof; but the same is still unpaid and in full force. VII. That the amount of said judgment and interest was duly demanded of said defendant, before the commencement of this action, and the payment of the same refused. VIII. That by reason of the premises plaintiff has been damaged dollars, and defendant is liable to plaintiff therefor as bail.'^ Wherefore [etc., demand of judgment]. '^ N. Y. Code Civ. Pro., §§ 573- plaintiff's election to sue upon defend- 581. ant's statutory liability as bail. Smith '2 This allegation is useful to show v. Knapp, 30 N. Y. ,581. CHAPTER XXXII COMPLAINTS IN ACTIONS FOR NEGLIGENCE ^ ' The complaints in this chapter are for negligence not connected with breach of contract, or contrac- tual or official duty. Forms in ac- tions for breach of a duty arising out of contract, e. g., against agents, carriers, bailees, etc., are given in Chapter XXX; against a sheriff for breach of his official duty, in Chapter XXXI. The right of action for negligence rests upon the breach of some duty implied by law from the relation of the parties — such as carrier and pas- senger, master and servant, etc. An allegation that it was the duty of the defendant to do an act is a mere conclusion of law, and insufficient without a statement of the facts; therefore, the particular relation relied on to raise the duty — or the facts reUed upon to bring the case within a statute raising the duty — must be alleged. This being done, adding that it became the duty, etc., is superfluous, but does not vitiate. Where plaintiff makes a general allegation of negligence with reference to some particular duty, a bill of particulars may be ordered not- withstanding defendant may know more about the conditions than plaintiff. See Horeau v. Schwartz- kopf, 142 App. Div. 69, 126 N. Y. Supp. 448. If the dutj' is raised by a foreign statute, the statute_ must be pleaded. McLeod V. R. Co., 78 Vt. 727. So, if raised by the common law of the 842 foreign jurisdiction, variant with the common law as administered in New York. Fallon v. Mertz, 110 App. Div. 755, 97 N. Y. Supp. 417. A general allegation of negligence is good in some jurisdictions against demurrer, and avails to let in evidence of the circumstances constituting it. Abb. Brief on PI., 2d ed., p. 612. In New York, however, such a general allegation is insufficient; there must be a general or specific allegation of negligence with relation to some act or omission. P-agnillo v. Mack, etc., Co., 142 App. Div. 491, 127 N. Y. Supp. 72; Pierrot v. Mt. Morris Bank, 120 App. Div. 247, 104 N. Y. Supp. 1045.; Schlesinger v. Centr. R. R. of N. J., 74 Misc. 91. Compare Powell v. Cohoes Ry. Co., 136 App. Div. 204, 120 N. Y. Supp. 336. The plaintiff's proofs must be confined to the particular cir- cumstances alleged as having con- stituted the negligence. Murphy v. Milliken, 84 App. Div. 582, 82 N. Y. Supp. 951; Mandy v. Schleicher Co., 142 App. Div. 23, 126 N. Y. Supp. 571; Davis v. Lake Erie R. Co., 20 Abb. N. C. (N. Y.) 230. The facts alleged need not irre- sistibly show defendant's negligence; it is sufficient to sustain the pleading that the inference be a reasonable one and one which the jury would be justified in adopting. Aurora v. Cox, 43 Neb. 727, 62 N. W. Rep. 66. A general allegation of negligence when sufficient is equivalent to Actions for Negligence 843 whatever degree of negligence is necessary, to sustain the pleading. Abb. Brief on PI., 2d ed., p. 612. The plaintiff may allege in one count several neghgent causes as hav- ing resulted in his injury; but a single cause of action is thereby set forth, and plaintiff may recover upon proof of any one of the alleged negli- gent acts, the allegations of the other acts of negUgence being treated as surplusage. Abb. Brief on PI., 2d ed., p. 1515; Payne v. N. Y., etc., R. Co., 201 N. Y. 436; Ziegler v. Trenkman, 31 App. Div. 305, 52 N. Y. Supp. 615; Acardo' v. N- Y. Central R. Co., 116 App. Div. 793, 102 N. Y. Supp. 7; Marion v. Coon Constr. Co., 157 App. Div. 95, 141 N. Y. Supp. 647; see a precedent in Form 783; Davis v. Lake Erie, etc., R. Co., 110 N. Y. 646. If the facts alleged show a liability both upon the theory of negligence and of nuisance, plaintiff may pro- ceed upon both theories, and may not be compelled to elect. Brodsky V. Hebel, 94 Misc. 312, 158 N. Y. Supp. 329. If pleaded by way of two separate counts, no election may be required. Schoenfeld v. Mott Ave. Realty Co., 168 App. Div. 91, 153 N. Y. Supp. 745. Where plaintiff alleges that the in- . jury was caused by the negligence of the defendant, no recovery can be permitted upon proof of an inten- tional injury. O'Brien v. Loomis, 43 Mo. App. 29. The connection of cause and effect between the negligence charged and the injury must be shown, Abb. Brief on PI., 2d ed., p. 612. In some States, notably Indiana, plaintiff must allege his freedom from contributory negligence. This rule is approved in Shearman & R. on Negl. 192, § 113. A general allega- tion that plaintiff was without fault is a sufficient comphance with this rule, unless the facts stated show the contrary. Ohio, etc., Ry. Co. v. Walker, 113 Ind. 296, 15 North East. Rep. 234. In New York an allegation of de- fendant's negligence as the cause of the injury sufficiently implies plain- tiff's freedom from contributory neg- Ugence. Lee V. Troy Cit. Gas Light Co., 98 N. Y. 115; Klein v. Burleson, 138 App. Div. 405, 122 N. Y. Supp. 752. But if the detailed facts shown by plaintiff as constituting defendant's negUgence also show that plaintiff's own negligence may have contrib- uted to the injury, he must, in evi- dence at least, negative contributory negligence in the first instance. As against two independent tort feasors, sued together, the complaint must show that the negligence charged against each one was an efficient concurring cause of plain- tiff's injury. See Boehm v. Ham- mond, 145 App. Div. 511, 129 N. Y. Supp. 884; Croaley v. Swarzchild, etc., Co., 141 App. Div. 473, 126 N. Y. Supp. 301. Where plaintiff seeks recovery from a master for a servant's negli- gence, he may charge the negligence as that of the master without mak- ing any express mention of the serv- ant by whose act the negligent injury occurred. This is the better method of pleading. Harris v. Bait., etc., Co., 112 App. Div. 389, 98 N. Y. Supp. 440, aff'd 188 N. Y. 141. If plaintiff, however, charges the injury as the act of a servant, he must then allege, or show by implication, that the servant's act was within the scope of his employment. Fisher v. Brook- lyn Jockey Club, 50 App. Div. 446, 64 N. Y. Supp. 69. An aUegation 844 Abbott's Forms of Pleading [Some General Instructions Relative to Drafting the Complaint] (a) Actionable negligence must be predicated upon the violaRon of an existing legal duty owed by defendant to plaintiff; a violation of a contractural duty will not support the action.^ Therefore, in the natural order of sequence of events, a complaint may properly first allege the facts raising the duty on the part of the defendant toward the plaintiff, e. g., that the defendant was a common carrier and plaintiff a passenger on one of its trains. (b) It is not necessary to allege of what the duty consisted; if the facts raising the duty are given, then the law fixes its character.' (c) The complaint must show facts from which it will appear that there has been a violation of some legal duty owing by defendant to plaintiff.^ (d) This violation of duty should be characterized as having been negligently brought about or permitted by the defendant.* (e) The violation of duty complained of must be shown to have caused the plaintiff's injury." (f) In some jurisdictions (not including New York), plaintiff's contributory negligence must be directly negatived. (g) Results which follow immediately and necessarily from the injury re- ceived come under the classification of general damage, recoverable without special allegation; other results are special in character, and require special allegation thereof in order to serve as the basis for a recovery therefor.' that a person was at the same time the agent of his employer, and also of another, while inconsistent does not bind plaintiff but he may elect to proceed upon either theory. See Laks V. Keller, 172 App. Div. 205, 158 N. Y. Supp. 514. ^ Schick V. Fleischauer, 26 App. Div. 210, 49 N. Y. Supp. 962. ' In the absence of the facts from which the duty arises, an allegation that defendant owed to plaintiff a. particular duty is unavailing. Fair- child V. Leo, 149 App. Div. 31, 133 N. Y. Supp. 572. * It is insufficient to merely allege the conclusion of law that defendant owed a specified duty. It is also insufficient to substitute a legal con- clusion for the facts which show a relation upon which the duty will rest; for example, to merely allege that plaintiff was "lawfully on de- fendant's premises." Wagner v. Shoemaker, 97 Misc. 432, 161 N. Y. Supp. 376. If the common-law liability has been extended by a public stat- ute it is not necessary to refer to the statute. Riley v. McNulty, 115 App. Div. 650, 100 N. Y. Supp. 985. ' See text immediately following on "Alleging the NegUgence." It is not scientific to allege that the negligence was that of the de- fendant's agent or servant. Harris v. Bait., etc., R. Co., 112 App. Div. 389, 98 N. Y. Supp. 440, aff'd 188 N. Y. 141. If the negligence is al- leged to have been that of defend- ant's servant, employee or agent, then it wiU be necessary to also allege, or show facts from which it will appear, that the person so charged with the .act of negUgence was at the time engaged in the defendant's business, and acting within the scope of his authority, and without such allega- tion or showing the complaint is fatally defective. CuUen v. Thomas, 150 App. Div. 475, 135 N. Y. Supp. 22; Fisher v. Brooklyn Jockey Club, 50 App. Div. 446, 64 N. Y. Supp. 69; Stein V. Lyon, 98 Misc. 687, 163 N. Y. Supp. 380. « Schaiff V. Jackson, 216 N. Y. 598. ' See notes to forms 973-984, under "Allegations of Injury and Damage," post. Actions for Negligence 845 Alleging the Negligence A general allegation that plaintiff's injury was caused by defendant's negligence is insufficient; it is necessary, though in general terms and without particulars, to charge the negligent doing or omission of the doing of some- thing involved in defendant's legal duty toward plaintiff. * [The note at the beginning of this Chapter, and the notes appended to the various forms following, amplify these brief instructions, and furnish authorities for the several propositions set forth so as to render further repetition unnec- essary here.] I. Against steam bailroad company. * page 775. For injury at crossing 852 776. The same, other allegations of injury at crossing 854 777. By passenger in street car against railroad company where engine struck the street car 856 778. By passenger in street car, against both railroad company and street car company, for coUision at crossing 857 779. Injury where railroad runs upon highway 858 780. For defective condition of track at highway crossing 859 781. By passenger; derailment of train 860 782. The same, accident at bridge 860 783. The same, allegation of injury at station 861 784. The same, other allegations of injury to passenger 861 785. The same, allegation of loss of money and valuables in the railway accident 862 786. The same; allegation of injury received when boarding * moving train 862 787. The same; allegation of failure to provide for controlling crowds at station 863 788. Injury at station to one not a passenger 863 789. The same, by licensee for injury while crossing track 863 790. Willful, wanton or reckless injury to person trespassing upon track 864 ' Pagnillo V. Mack, etc., Co., 142 or foreign law relied on as giving the App. Div. 491, 127 N. Y. Supp. 72; right of action must be pleaded. Petersen v. Eighmie, 175 App. Div. But a municipal ordinance need not 113, 161 N. Y. Supp. 1065. be pleaded; its violation is not negli- A statutory requirement or pro- gence per se, although it is sufficient hibition of course raises a legal duty to justify a jury in finding that de- of obedience thereto; a violation fendant was negligent. Knupfle v. makes out a pn^a/acie case of negli- Knick. Ice Co., 84 N. Y. 488; Mc- gence (Oxelowitch v. Mayo Wareh. Cambley v. Stat. Isl. R. Co., 32 App. Co., 83 Misc. 47, 144 N. Y. Supp. Div. 346, 52 N. Y. Supp. 849; Orr v. 636), provided the violation is Bait. & Ohio R. Co., 168 App. Div. charged (Ithaca Trust Co. v. Driscoll 548, 153 N. Y. Supp. 920; Meyers v. Bros. Co., 169 App. Div. 377, 154 Barrett, 167 App. Div. 170, 152 N. Y. Supp. 1027), and may be seen N. Y. Supp. 921; Berry v. Urban ■to have caused the injury. Under Water Supply Co., 163 App. Div. familiar principles, a privarte statute 21, 148 N. Y. Supp. 67. 846 Abbott's Forms of Pleading PAGE 791. The same, other allegations of defendant's act 866 792. By employee; under Federal Employers' Liability Act 867 793. The same, complaint showing liabiUty under Federal Em- ployers' Liability Act, as well as at common law and under a state statute; stated in one count 869 794. The same, injury from defective equipment and material. . 870 795. The same, for injury from defective track 872 796. The same,^other allegations of injury from defective equip- ment 873 797. The same, for injury caused by failure to adopt proper rules and regulations 875 798. The same, for injury because of insufficiency of employees . 877 799. The same, allegation of injury from negligence of one made vice-principal under New York Railroad Law 877 800. Another form under same statute, giving more detail of the negligence 878 801. The same, for injury caused by fellow servant 878 802. The same, another allegation of neghgent employment of fellow servant 879 803. The same, injury caused by being transferred to different service 881 804. Frightening plaintiff's horse by unusual noises 881 805. For setting fire 882 806. For killing animals 885 807. The same, under New York statute 886 IL Against street railway company. 808. By passenger; for negligent starting of car 887 809. The same, for starting car before plaintiff reached place of safety 888 810. The same, negligent acceleration of speed as plaintiff was preparing to alight 889 811. The same, as plaintiff was about to step upon the car .... 890 812. The same, negligent acceleration of speed while plaintiff was standing in car 890 813. The same, injury while riding on platform between cars, from violent motion of train 891 814. The same, injury while necessarily riding on platform or step of car 892 815. The same, while voluntarily riding on platform 893 816. The same, while riding on the running board of car S93 817. The same, by passenger, for injuries caused by collision . . . 894 818. The same, injury in panic among passengers 894 819. The same, against railroad company and municipality for failure to keep in repair the roadway between the tracks, and adjacent thereto 895 820. The same, passenger alighting where street was unsafe be- cause of repairs being made by ratlroad company 897 Actions for Negligence 847 PAGE 821. Injury to boy stealing a ride 898 822. For running over pedestrian 898 823. By street-sweeper, or other workman, employed on street work 899 824. By infant, run over while in street 900 825. Injury from electric shock 901 826. For failure to keep pavement in repair 901 827. For colliding with plaintiff's vehicle 902 828. Allegation of condition of highway maldng necessary use of defendant's tracks by vehicles 903 829. The same, allegation of defective brake 903 III. Vessels. 830. Against owner of a vessel for collision with plaintiff's vessel while lying at wharf 904 831. The same, for injury from swells from defendant's vessel. . 905 832. Injury caused by a vessel in tow ' . 905 833. The same, collision under way 906 834. The same, for personal injury through destruction of vessel caused by negligently loading with inflammable cargo . . 907 835. The same, allegation of negligence in towing plaintiff's vessel 907 IV. Against municipal corporation. 836. Preliminary allegation of organization, duty imposed by charter, notice of intent to sue, and presentation of claim 908 837. Allegation of service of notice of intention to sue the City of New York for injury to property 911 838. Injuries caused by a defective sidewalk 912 839. Other allegations of defective sidewalks 914 840. Obstruction placed by third person and negligently per- mitted to remain 915 841. Injuries caused by accumulation of snow and ice 916 842. The same, other allegations of such accumulation 917 843. For unsafe condition of sidewalk caused by act or omission of abutting owner; defective leader pipe 918 844. Injuries caused by bad condition of crosswalk 918 845. Other allegations of defect inxrosswalk 919 846. Injury from defective condition of highway 920 847. Failure to guard excavation made by it 922 848. Omission to properly guard street excavation during dark- ness 922 849. For permitting obstruction in street 923 851. Another allegation of obstruction or defect in street 924 852. Against municipality and its licensees for defect in highway 925 853. Against municipality, the abutting owner, the contractor and sub-contractor, for defective highway 926 854. Allegation of licensing use upon street of apparatus cal- culated to frighten horses 927 848 Abbott's Forms op Pleading PAGE 855. For collapse of bridge 927 856. For failure to guard bridge during repairs 929 857. Allegation of negligence in construction, acceptance and repair of bridge 930 858. Allegation of neglect to repair sewer built by defendant . . . 931 859. Negligence in omitting to clear public well 932 860. To recover damages to fruit trees, done by negligence of public servants 932 861. Against two municipalities, for negligence of worlcmen on connecting bridge '. 932 862. Injuries to child from dangerous playground of school .... 933 863. For wrongful treatment of invalid 934 V. OBSTRtrCTIONS OB DEFECTS ON SIDEWALKS, OR IN HIGHWAY, CAUSED BY PRIVATE INDIVIDUALS. (a) On Sidewalks. 864. For defective or insecure covering of coal-hole or other opening in or from sidewalk 937 865. The same, where cover was removed and not replaced .... 938 866. Injury by skid or run-way on sidewalk 939 867. For injury caused by structure upon sidewalk 940 868. Leader-pipe, discharging contents over sidewalk 941 869. From excavation adjoining upon sidewalk 942 870. Injury from fall of blind, or sign, from premises abutting on highway 942 (b) Defect or Obslruclion in Roadway. 871. Against a contractor for leaving street in an insecure state, whereby plaintiff's horse was injured 943 872. For laying building materials in the street unguarded, whereby plaintiff was thrown out of his carriage 944 873. Against carrier for leaving articles for delivery in the high- way 945 874. Injury to child at play, from material placed in highway . . 945 875. Against one causing the defect, and another whose negli- gence was a concurrent cause of the injury 946 VI. Against landlord, tenant or occupant, for defective Premises. 876. Allegation of landlord's control of portions of the premises, and plaintiff's right to invoke the duty of care with rela- tion thereto 947 877. Allegation of defendant's ownership of tenement house . . . 948 878. Against landlord, for letting premises unhealthy because of bad plumbing 949 879. Against landlord of tenement house, who reserved control of halls, for injuries caused by dangerous stair covering . . . 950 880. Allegation of injury from defective condition of roof of which landlord retained control 950 > Actions for Negligence 849 PAGE 881. Against landlord for failure to light halls or to provide stair railings 951 882. Against landlord, for neglect to provide fire-escapes (under statutes) 952 883. Against landlord for leasing infected house 953 884. Against occupant; injury from fall of elevator 954 885. Against occupant, for injuries caused by leaving unguarded a dangerous opening 955 886. Injury to one attending public exhibition on defendant's premises 957 887. The same, injury to visitor by object falling in public place 958 888. The same, injury to visitor from fall of piazza, in private dwelling 959 889. Against hotelkeeper for injury to guest .' 959 890. Injuries to child, from danger on premises where children were accustomed to play 960 891. Against both owner and occupant for injury caused by ex- plosion on premises 962 892. Injury caused by blasting 962 893. Injury to mere licensee 963 894. Against owner or lessee of wharf and privileges, for damage for not keeping in repair 964 895. The same, for injuries to vessel from bad bottom of dock 965 896. The same, allegation of defective construction of dock, whereby plaintiff's horse was lost 967 897. For negligence of mill owners, whereby plaintiff's land was overflowed 967 • VII. Master and servant. (a) Wcyrkmen's Compensation Act. 898. Complaint by employee engaged in an occupation within the application of that statute 971 (b) New York Employers' Ldability Act. 899. General form, under that statute 972 " 900. Negligent direction to plaintiff by person intrusted by de- fendant with authority 974 901. Failure to furnish proper equipment 976 902. Allegation of defects in apparatus for operating mine 976 (c) Other actions, under other statutes, and under the common law. 903. Unsafe place to work; injury caused by fall of materials. . . . 977 904. The same, fall of building through overloading floors 978 905. The same, fall of overhanging bank 979 906. The same, negligent construction or operation of mine, serv- ant being ignorant 981 907. The same, from fall of skylight 981 850 Abbott's Forms of Pleading PAGE 908. The same, from fall of scaffold 982 909. The same, scaffold not furnished by plaintiff's employer. . 984 910. The same, under common-law liability 985 911. The same, master having been requested to guard against threatened danger, but giving assurance of safety, or promise to remedy the defect 986 912. The same, danger which was of plaintiff's risk, but enhanced by defendant's neglect, plaintiff being ignorant of unusual danger 986 913. By faUing of material in excavation which plaintiff was en- gaged in making 988 914. Defective tools and appliances; allegation of defective ele- vator car 989 915. The same, allegation of defective elevator shaft 990 916. The same, allegation of explosion of steam engine 990 917. The same, allegation of supplying machine with an unneces- sary appliance of a dangerous character 990 918. Thesame, failure to guard machine as required by statute. .. 991 919. The same, lack of safety apphance which master promised to supply 992 920. The same, from defect in machinery from failure to keep in repair, and unknown to servant 993 921. The same, employee induced by promise to repair or replace to continue use of defective machine 994 922. The same, where injury occurs from two defects in safety appliances for machinery or from one of them 996 923. From incompetent fellow servant 997 924. Allegation of failure to supply sufficient employees 998 • 925. Failure of employer to promulgate rules 999 926. From ignorance in the use of dangerous tool, where employee was young and without experience 1000 927. Failure to instruct regarding danger not known without special knowledge or actual experience 1001 928. By infant employed in factory in violation of N. Y. Labor Law 1002 VIIL For malpeacticb, etc. 929. Against an attorney, for negligent delay in prosecution of a suit 1003 930. Against the same, for negligent conduct of litigation 1006 931. Against the same, or a title company, for negligence in ex- amining a title 1007 932. Against attorney, for negligent investment on mortgage. . . 1009 933. Against an attorney, for giving dishonest advice 1010 934. Against a physician, for maltreatment 1012 935. Against physician, for negligent treatment 1013 936. Against a surgeon for malpractice 1014 Actions for Negligence 851 PAGE 937. The same, more specific allegation of maltreatment 1016 938. Against examiner in lunacy for negligently giving certificate of insanity 1016 939. Against hospital superintendent for neglect of patient .... 1017 940. Against public hospital, for injuries caused by incompetent employees : 1018 941. Against dentist 1019 942. Against corporation practicing dentistry 1019 943. Against stockbroker for negligence in operating a "straddle '' 1020 944. Against officer of corporation for negligent management of its affairs 1022 945. By one having no contractual relation with defendant to recover for injury through article of defendant's manu- facture 1023 946. Against a wholesale dealer who sells an explosive oil to a retailer, who in turn sells to plaintiff 1024 947. Against compounder of drugs for negligence in selling to retailer poisonous drug, under wrong label 1025 948. Against druggist for negligently furnishing to plaintiff a wrong drug 1027 949. For delivering to common carriers dangerous materials with- out disclosing their character 1028 IX. MiSCEELANEOTJS. 950. For keeping a dangerous animal, by which plaintiff was injured 1030 951. For injury from vicious horse 1032 952. Against owner of vicious horse, for leaving it untied in public street 1033 953. Against owner of dog for injury to sheep and goats 1034 954. Injury from runaway horse 1035 955. Against owner of horse negligently driven by servant upon pedestrian 1036 956. The same, negligently driven against plaintiff's vehicle . . . 1037 957. The same, for negligently driving, where the damage oc- curred in plaintiff's endeavor to avoid a collision 1037 958. Negligently driving high-spirited horse where it would be- come frightened and unruly 1038 959. For negligent driving of automobile 1039 960. Another form, with specific allegation of character of negli- gence 1040 961. For injuring borrowed or hired chattels 1041 962. Negligently watching fire, which spread to plaintiff's land 1041 963. By electric shock from improperly charged wires 1042 964. Against gas company for explosion caused by leakage into private premises 1043 852 Abbott's Forms of Pleading PAGE 965. Against two or more persons whose separate negligent acts contribute to the injury 1044 966. Injury received when attempting to rescue another from danger 1045 X. To Recover over against one whose fault caused the injury. 967. By municipal corporation, for recovery over against the creator of obstruction or defect in highway 1045 968. By joint tort feasor for recovery over against the other whose affirmative act of negligence caused the injury 1049 969. Another form, by contractor to recover over against sub- contractor 1051 970. Another form; by owner of real property to recover 'over from the one primarily liable; failure to replace cover of coal-hole 1052 971. By insurance company, subrogated to rights of owner of injured property ,1054 972. By state, or insurance carrier, against third person whose negligence caused the injury for which an employee has se- cured compensation from his employer under the Work- men's Compensation Law 1055 XI. Allegations of injury and damage. 973. Allegation of bodily injury, in general terms 1056 974. Specific allegations of bodily injury 1060 975. Secondary results of injuty 1061 976. Permanency of injury 1061 977. Medical and surgical expenses 1062 978. Loss of earnings or income 1062 979. Expenses incurred in employing substitute 1063 980. By married woman, for loss of separate earnings ; 1063 981. Allegation of damage to property 1064 982. .Another form; injury to plaintiff's business 1065 983. For injury to wife, or minor child 1066 984. Allegation of special damages incurred in endeavoring to reduce damages anticipated from defendant's act 1068 I. AGAINST STEAM RAILROAD COMPANY 775. Injury at Crossing.' I. [Allege defendant's corporate capacity, as in Form 44, ete.] ' It is generally a question of fact actually employed. See Petrie v. for the jury whether the defendant, N. Y. Central R. Co., 63 App. Div. under all .the circumstances of a 473, 71 N. Y. Supp. 866, aff'd 171 given case, should have adopted N. Y. 638. some other precautions than those Actions for Negligence 853 and that at the times hereinafter mentioned, defendant was, and still is, operating "" a railroad running through the [town] of , in this State." II. That on or about the day of , 19 , plaintiff [or, M.^N., a servant of- plaintiff] was traveling in a wagon drawn by two horses, which, together with the har- ness, were the property of plaintiff, along the pubUc highway, from to , which public highway crosses the said railroad at aforesaid; that as plaintiff [or, plaintiff's said servant] had reached said crossing, defendant negligently and carelessly ran one of its trains up to, upon and across said highway ^^ at said crossing at a high and dangerous rate of speed, and negligently and carelessly omitted, while so approaching said crossing, to give any signal, by the ringing of the bell or the blowing of the whistle of the locomotive, or otherwise, although defendant had no gates nor any flagman at said crossing, by reason whereof [plaintiff] was unaware of the approach of said locomotive. ^^ III. That by reason of defendant's said negligence, and without any fault or negligence on the part of plaintiff [or, plaintiff's said servant], said train struck the plaintiff's "•Action sustained against com- Hollis v. Brooklyn Heights R. R. pany, although railroad was being Co., 128 App. Div. 821, 113 N. Y. operated by trustees for the bond- Supp. 4. holders. UUman v. Transportation " An allegation that defendant Co., 89 111. 244; Wisconsin Central negligently caused its locomotive to R. Co. V. Ross (111.), 31 N. E. rapidly approach the crossing fails Rep. 412. Action sustained against to impute negligence for an injury at trustees operating for benefit of the crossing. Conn v. Pittsburgh, bondholders under trust deed. etc., R. Co. (Ind.), 3 N. E. Rep. 636. Daniels v. Hart, 118 Mass. 543. And compare Chicago & North " An allegation that defendant is Eastern R. Co. v. Miller (Mich.), "duly organized and existing and 9 N. W. Rep. 842. engaged in operating" a railroad " Following this form are a group means a lawful operation; a later of allegations from other precedents, allegation that defendant "wrong- giving other illustrations of the fully and knowingly jeopardized the charge of negligence at highway lives'' of the public does not there- crossings. fore charge defendant with main- See, also, general note at the be- tenance of an unlawful structure ginning of this chapter, which is an essential part of its road. 854 Abbott's Foems op Pleading horses and killed one of them immediately [and so severely injured the other as to make it necessary to kill him]," and also struck plaintiff's wagon, breaking it and the harness to pieces so that they are worthless; and also threw the plaintiff out upon the ground with such force as to fracture his, right arm [or, otherwise, according to thefact].^^ IV. That by reason of the premises plaintiff has lost said horses and wagon and harness, which were of the value of dollars, [see Forms 973-978, as to alleging the -per- sonal injuries], to his damage dollars. Wheeefore [etc., demand of judgment]. 776. Other Allegations of Injury at Crossing. That the defendant's railroad crosses street in the city of , at grade; that said street is a much traveled highway and said crossing is being constantly used by pedestrians and vehicles. That at the time hereafter mentioned the defendant neg- Ugently failed to guard the pubUc from injury at said crossing by means of a gate or flagman, and negUgently ran its loco- motive and cars at high speed across said crossing without giving any warning signal by bell, whistle or otherwise. ^^ That the defendant failed to cause a sign board of any character to be maintained at said crossing, which was at grade with said highway." That on or about the day of , 19 , in the city of , the defendant, not regarding its duty, and by reason of its neghgence and carelessness, plaintiff was " According to Atchison, etc., " Held to charge negligence suf- R. R. Co. V. Ireland, 19 Kans. 405, an ficiently. Henavie v. N. Y. Central, allegation of killing an animal lets etc., R. Co., 166 N. Y. 280. in evidence of an injury so severe as " Under Railroad Law, § 53. The to necessitate plaintiff kiUing it. violation of the statute may of it- '* See group of allegations covering self support a recovery. Henn v. injury to person, at end of this chap- Long Isl. R. Co., 51 App. Div. 292, ter. Forms 973-978. 65 N. Y. Supp. 21. Actions for Negligence 855 run against by one of defendant's cars, thereby throwing plaintiff upon the rails of the defendant, and the said car of defendant then and there ran upon and over plaintiff. ^^ That the death of said M. was caused by the running of the cars of the defendant upon said day of , 19 , and by the failure and neglect of said defendant to give the signals required by the statutes of this State to be given at street crossings and other places, and by carelessly and negligently running said train of cars at a high rate of speed, that was careless and negUgent, and forbidden by the statute of the State in such cases made and provided." That on or about the day of , 19 , while plaintiff was crossing street, the defendant caused one of its locomotives and train of cars to be run and con- ducted along and over said street in so negligent, careless and reckless a manner as to strike and run over plaintiff without any negligence on her part contributing thereto.^" That the defendant carelessly and negligently caused one of its locomotives, with a train of cars thereto attached, to approach said crossing from the west side thereof, and then and there to pass at a great rate of speed over the track of said railway, and negligently and carelessly omitted, while 1^ Edens v. Hannibal & St. J. R. R. of the presence of strangers in the Co., 72 Mo. 212. Held, under such cab of the locomotive, the engineer an allegation, reversible error to sub- failed to keep a proper lookout, mit to the jury the question of the Judge's charge erroneous. Judgment defendant's negligence in having a reversed. defective sand-box on the engine, and ^» Otto v. St. Louis, etc., Ry. Co., keeping a defective frog on the 12 Mo. App. 168. Held, that plain- tracks. (This allegation would not tiff was entitled, under these aver- be upheld in New York against de- ments, to establish any proper ele- murrer.) ments of general negligence in the " Marquette, H. & O. R. R. Co. v. running and managing of defend- Marcott, 41 Mich. 433. Held, re- ant's train, whereby plaintiff's injury covery could not be had for any was caused. (Not for use in New other reason, or because, by reason York.) 856 Abbott's Forms of Pleading so approaching said crossing, to give any signal, by ringing the bell or sounding the steam whistle of said locomotive, of the approach of said locomotive until the plaintiff was in the immediate vicinity of said track, and wholly unable to check his said team and avoid a colhsion; that by reason of buildings and material piled upon the groimds of said rail- way, with the knowledge and permission of defendant, on the west side of said crossing, plaintiff was unable to see said train." That on or about the day of 19 , while plaintiff was, with due care and caution, driving a herd of cattle belonging to him across defendant's said railroad where a public highway crosses the same, the defendant then and there carelessly and neghgently, by failing to ring the beU and blow the whistle upon its locomotive, [as re- quired by statute], and by otherwise neghgently running and conducting its train of cars over its said road, did run over, upon and against the said cattle of plaintiff, etc.^^ 111. By Passenger in Street Car against Railroad Company, whose Engine Struck the Street Car.^' I. [Allege defendant's capacity and occupation as in Form 775.] II. That on or about the day of , 19 , 2' From The Penn. Co. v. Krick, 47 fendant's employees in the manage- Ind. 368. Held, that evidence of any ment and running of the train, held and every degree of negligence was proper to receive evidence tending admissible under these allegations. to show that there was an insufficient 22 Lynn v. Chicago, etc., R. Co., 75 number of men to manage and control Mo. 167. Held, that plaintiff could the train. It is not necessary under recover upon proof of neglect of the Alabama Code to plead particular statutory duty or negUgent manage- facts and circumstances tending to ment of train, or both. prove the claim. Refusal to charge South & North Ala. R. R. Co. v. the jury to disregard such evidence, Thompson, 62 Ala. 494. Under a no error. general averment that the injury 23 Adapted from complaint in Mc- complained of was the result of the Galium v. Long Island R. R. Co., 38 negligence or want of skill of the de- Hun (N. Y.), 569. Actions for Negligence 857 while plaintiff was riding as a passenger on a street car, on a public street known as street, in the city of , said street car was then and there carelessly and negligently run into by a steam locomotive operated by the defendant, its agents and servants. III. That the collision mth said street car was caused wholly by the carelessness and negligence of the defendant, its agents and servants, in that no warning was given by said locomotive, or any one, of its approach to said pubUc street, nor was there any flagman, or protection, or warning given, at the crossing at the time said locomotive crossed said pubUc street, and that said locomotive approached said crossing in an illegal, improper and unusually fast rate of speed, and that defendant was negligent in having knowingly in its employment incompetent men to run said engine, and that said engine was defective and improper in its construc- tion, in that the view was obstructed in looking out from the same. IV. [For allegation of injuries, see Forms 973-978.] Wherefore [etc., demand of judgment]. 778. By Passenger in Street Car against both Railroad Company and Street Car Company, for Collision at Crossing. 2* I and II. [Incorporation and occupation of the defendants as in Form 775.] III. That on or about the day of , 19 , plaintiff was a passenger on one of the cars of said defendant [street car company] ; that at the place where the tracks of the said defendants intersect or cross each other, by and through the negUgence and want of proper care and attention on the part of the said defendants respectively, one of the loco- motives of the said defendant [railroad company], and the street car in which the plaintiff was riding, came into col- " Plaintiff recovered under this haven, etc., R. R. Co., 23 N. Y. complaint in Harvey v. N. Y., Wood- Wkly. Dig. 198. 858 Abbott's Forms of Pleading lision with each other, whereby the said street car was thrown from the track and broken to pieces. IV. That the said colUsion was the result, as this plaintiff is informed and believes, of the negligence of the servants of the said defendants respectively, in that [state the character of the negligence complained of] ^^ and that all the injuries plaintiff received were received in consequence of the said carelessness and want of proper care on the part of the serv- ants of the said respective defendants in the management of the locomotive and street car aforesaid. V. [Allege injury; see Forms 973-978.] Wherefore [etc., demand of judgment]. 779. Injury where Railroad Runs upon Highway. [From complaint in Stamm v. Southern R. R. Co., 1 Abb. N. C. (N. Y.) 438.] I. [Allege defendants' incorporation and operation of rail- road, as in Form 775.] II. That on or about the day of , 19 , at , one of defendants' cars, then and there being managed by the defendants, its servants or agents, collided with the plaintiff's truck, which he was driving through street, one of the public highways of said [city], along and through which said highway defendants' said railroad ran, in consequence of the negUgence and careless- ness of the defendants, its servants or agents, [state general character of the negligence as in preceding forms] ^^ and with- out fault or neghgence on plaintiff's part; that by reason thereof plaintiff was tlirown out of his said truck and upon ^^ See preceding forms; also see But where there is a general allega- note at beginning of this chapter on tion of negligence in running trains, alleging negligence. a recovery for injury by either may 2« Proof of injury by a second train be sustained. But qucere as to in consequence of collision with one whether such an allegation would be mentioned in the pleading would be sustained against a motion to make a variance unless specially alleged. the complaint more definite and cer- Hanlonw. South Boston R.R. Co., 129 tain. Parsons v. N. Y, Central, etc., Mass. 310. R. Co., 113 N. Y. 355. Actions for Negligence 859 and across defendants' track or road, whereupon he was run over by one of defendants' cars, being then and there propelled or drawn by one of defendants' locomotives," and one of his legs was cut off by the wheels thereof, and he was otherwise wounded and hurt. [Add further allegation of injury as in Forms 973-980, according to the fact.] Wherefore [etc., demand of judgment]. 780. For Defective Condition of Track at Highway Cross- ing. ^^ I. [As in Form 775.] II. That defendant's tracks and road cross and intersect the pubhc highway known as street in the [village] of ; that it was the duty of defendant to keep and maintain its road at said intersection in such a condition as not necessarily to impair its usefulness and keep the same safe for travel. III. That in violation of its duty defendant neghgently placed improper materials in said highway at said crossing, and did not put sufficient or proper materials therein to make the same safe for pedestrians to cross its tracks at said place, but so placed and put the rails and ties of its said road, and the stone and materials also used thereon, at said intersection, that there were rough places and de- pressions and uneven and unsafe places therein so as to make it dangerous for use by pedestrians. IV. That on the day of , 19 , while plaintiff was crossing defendant's said tracks at said inter- section of the highway his foot went into a depression or hole and was caught and held, and plaintiff was tripped thereby and by some plank, tie, rail or other object or structure " See also the note at beginning Central, etc., R. Co., 184 N. Y. 320, of this chapter regarding general where the action was sustained but allegation of negUgence. no question of pleading directly in- ^ Adapted from Durr v. N. Y. volved. 860 Abbott's Forms of Pleading negligently and improperly placed there by defendant or negligently permitted to remain at said place. V. [Allege injury as in Forms 973-980.] Wherefore [etc., demand for judgment]. 781. By Passenger; Derailment of Train. ^' I. [Allege defendant's incorporation and occupation, as in Form 77b.] II. That on the day of , 19 , about o'clock in the noon thereof, plaintiff was a passenger on one of the trains operated by the defendant,^" and en route from to III. That while plaintiff was on the" said train as such passenger, and at about [state the place of the derailment], de- fendant so carelessly and negligently operated said train, and so negligently constructed, inspected and maintained its rail- road track at said place, that said track broke, or shifted, or gave way, and said train became and was derailed; that the car of said train in which plaintiff was riding as a passenger aforesaid was turned over [etc., according to fact]. IV. [Allege resulting injury; see Forms 973-980; loss of property, see Form 981.] Wherefore [etc., demand for judgment]. 782. The Same, Accident at Bridge. I. [Allege defendant's corporate capacity and occupation, as in Form 775.] II. That on or about the day of , 19 , the plaintiff was a passenger on the train of defendant '^ 2' Adapted from complaint in ""Was on" a car of defendant Knieriem v. N. Y. Central R. Co., does not sufficiently show relation 210 N. Y. 573, aff'g 146 App. Div. of carrier and passenger. Breese v. 661, 131 N. Y. Supp. 496, where a Trenton Horse R. Co., 52 N. J. L. judgment for plaintiff was affirmed; 250, 19 Atl. Rep. 204. a prior decision in 109 App. Div. "Was lawfully on the premises" 709, 96 N. Y. Supp. 602, had does not show a relation raising a held that the complaint was suffi- duty of care. Fairchild v. Lee, cient. 149 App. Div. 31, 133 N. Y. Supp. ™ See note to Form. 782. 572. Actions for Negligence 861 running from to , and had paid his fare as such passenger between said points. III. That while on the said train as such passenger plain- tiff was, without negligence on his part, but by the gross negUgence and fault of the defendants, its agents and serv- ants, precipitated, with the car and train in which he was riding, through the open draw of the railroad bridge over the river. IV. [Add allegation of resultant injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 783. The Same, Allegation of Injury at Station.^^ That the defendant so negligently and unskillfuUy con- ducted itself in the management of its trains, that through the negligence and misconduct of said defendant and of its agents and servants, the said plaintiff, upon alighting from said train at the station of the defendant, at or near street, in said city of , without negligence on his part, was struck by a passing engine and train and thereby, etc. 784. The Same, Other Allegations of Injury to Passengers. That on the arrival of said train at , the plaintiff in leaving said train, without his fault or negligence, but by the fault of defendant in not stopping the motion of the train a reasonable time to admit of plaintiff's leaving said train, was thrown with great violence upon the platform of the depot.'* That the defendant negligently and carelessly ran its said 32 From Parsons v. N. Y. Central, '^ Pfjcg v. St. Louis, etc., R. Co., 72 etc., R. Co , 113 N. Y. 355, where the Mo. 414. Held, error to give instruc- court (RuGEE, Ch. J.) says: "The tions allowing plaintiff to recover on complaint stated all of the facts proof that the injuries for which he necessary to maintain the action, and sued were sustained by reason of the complied with Code requirements in company's failure to keep the plat- that respect." form lighted. 862 Abbott's Forms of Pleading train upon which he was a passenger violently against and upon a horse, by means whereof the train was thrown from the track. 5* 785. The Same, Allegation of Loss of Money and Valuables in the Railway Accident. '' That solely by reason of defendant's said negligence, the sum of dollars in money, and also [description of articles of jewelry], all of which belonged solely to plaintiff, and which were in plaintiff's possession and upon his person at the time of said derailment of said train, were wholly lost to plaintiff; that said dollars was a necessary and reasonable sum for the journey in which plaintiff was then engaged, viz., from to , and said [jewelry] were the usual and reasonable articles of personal ornament. 786. The Same, Allegation of Injury" Received when Boarding Moving Train. That on the said day of , 19 , while plaintiff was waiting to board said train as a passenger of the defendant, the train came into said station slowing down, and when it had almost come to a stop and was mov- ing slowly, plaintiff, with other passengers, safely boarded the same; that while plaintiff was yet upon the steps of the car he had so boarded, the train was so negligently managed that it gave a violent jerk and jar and plaintiff's footing on said steps was taken from him and the weight of his body was entirely put upon his hands on the railings on said car ^' Toledo, etc., R. Co. v. Foss, 88 210 N. Y. 573, aff'g 146 App. Div. 111. 551. Held, that plaintiff could 661, 131 N. Y. Supp. 496, where not without amendment prove that plaintiff's verdict for the amount of the railroad track was not properly money and value of jewelry was sus- feneed; that the gate was down, so tained as presenting a proper ques- that the animals could go upon the tion for the jury whether it was a road; and that the train was not reasonable sum for the journey, provided with steam brakes. See, also, another decision in 109 '^Adapted from complaint in App. Div. 709, 96 N. Y. Supp. KnierJem v. N. Y, Central R. Co., 602. Actions for Negligence 863 steps, and he was dragged and thrown in such a way that the wheels of said train passed over his left leg.'^ • 787. The Same, Allegation of Failure to Provide for Con- trolling Crowds at Station. That the crowds upon the said platform at such times were very large, and the platform. was taxed to its capacity; that the pushing and crowding of passengers by other passengers and persons on said platform at such hours was a matter of common occurrence, and said defendant, notwithstanding the said condition at the time mentioned in this complaint and prior thereto, failed to provide an adequate force of persons, and failed to take effective measures to protect passengers from being pushed and crowded by other pas- sengers." 788. Injury at Station to One not a Passenger.'* That on or about the day of , 19 , plaintiff was lawfully and rightfully in a building at , which was then maintained by defendant as a railway station. [Continue as in appropriate Form.] 789. By Licensee, for Injury while Crossing Track. '' I. [Defendant's corporate capacity and occupation, as in Form 775.] '« From Pakulski v. N. Y. Central, 155 App. Div. 48, 139 N. Y. Supp. etc., R. Co., 219 N. Y. 611, where a 555, aff'd 211 N. Y. 602. rceovery for plaintiff was aflBrmed. '^ From Godfrey v. N. Y. Central; " From Ulrich v. Interb. R. Co., etc., R. Co., 161 N. Y. 565, where it 95 Misc. 589, 159 N. Y. Supp. 868, was proven that plaintiff's intestate where the court held that negligence had gone to the station to meet a in failing to provide proper guards to passenger, and the court held that control the crowds at the train gates the rules of law applicable to a mere was sufficiently pleaded. See, also, licensee did not apply. Bacon v. Hudson, etc., R. Co., 154 '' No recovery can be had for an App. Div. 742, 139 N. Y. Supp. 740; injury resulting from the condition Reschke v. Syracuse, etc., R. Co;, of the tracks, e, g., a hole into which 864 Abbott's Forms of Pleading II. That on or about the day of , 19 , the plaintiff was crossing the defendant's railroad track at , by the license and permission of defendant." III. That while on said track, plaintiff was, by the care- lessness, negligence and unskillfulness of the defendant, its officers, agents, servants and epiployees, while running, con- ducting and managing certain cars, run over by two cars of the said defendant, which cars, at the time they ran over said plaintiff, were carelessly, unskillfully and neghgently conducted by said defendant, its officers, agents, servants and employees,^' in that [state in what the negligence consisted]. IV. [Injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. 790. "Willful, Wanton or Reckless Injury to Person Tres- passing upon Track. ""^ [Sustained in Greene v. N. Y., O. & W. R. Co., 102 App, Div. 322, 92 N. Y. Supp. 424.] plaintiff fell. See Englehardt v. Centr. N. E. Ry. Co., 139 App. Div. 786, 124 N. Y. Supp. 494. Mere knowledge, and even the existence of a worn path as an ap? proach to a railroad track, does not of itself create a liability to one using such a crossing. Wright v. Boston & Albany R. R. Co., 142 Mass. 296; Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; Corson V, Atlantic City R. R. Co., 83 N. J. Law, 517. There must be some conceded right of way. Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172; Clarke v. N. Y. C. & H. R. R. R. Co., 104 App. Div. 167, 93 N. Y. Supp. 525. Mere acquiescence, un- less it ripens into a right of passage, is not enough. Kubinak v. Lehigh Valley R. R. Co., 79 N. J. Law, 438; Edwards v. N, Y. Central R. Co., 169 App. Div. 687, 155 N. Y. Supp. 176. "From Le May v. Mo. Pac. R. Co., 105 Mo. 361, 16 S. W. Rep. 1049, under which plaintiff was per- mitted to show a custom of using the defendant's tracks, raising a tacit permission. If plaintiff alleges an impUed license he may not re- cover over defendant's objection on proof of an express invitation. Liebo- witz V. Long Isl. R. Co., 172 App. Div. 949. " This paragraph down to this point was held sufficient as against an objection at the trial. Le May v. Mo. Pac. R. Co., 105 Mo. 361. In New York, however, it would be necessary to allege the character of the negligence complained of. See note at the beginning of this chapter, and preceding forms. • " Where complaint shows place of Actions foe Negligence 865 I. [Allege incorporation and operation of railroad, as in Form 775.] II. That on or about the day of , 19 , plaintiff was walking in a [northerly] direction upon defend- ant's said railroad, at a point distant about miles [south] of a station upon said railroad known as , in the county and State aforesaid; that for a distance of at least south of the point aforesaid, said track is constructed in a straight line, and is free from curves or grades or obstructions of any character which would conceal the view of any portion thereof. III. That while plaintiff was upon said track as aforesaid, and was wholly ignorant of the approach of a train, defend- . ant's servant or servants in charge of the locomotive ^' at- tached thereto intentionally, willfully and with a wanton and reckless ** disregard for plaintiff's safety,^^ knowing plaintiff injury the exclusive property of de- fendant, it should show defendant's willfulness or recklessness. Wetz- mann v. Barber Asphalt Co., 190 N. Y. 452; Birch v. City of N: Y., 190 N. Y. 397; Walsh v. Fitchburg R. Co., 145 N. Y. 301. The action does not require actual malice, but recklessness, i. e., willingness to do an injury, suffices. Neuberger v. Long Isl. R. Co., 131 App. Div. 885, 116 N. Y. Supp. 311; Pabner v. Chicago, St. Louis, etc., R. Co. (Ind.), 14 N. E. Rep. 70. Where the com- plaint fails to show that plaintiff was a passenger or employee, or that he had any connection with the com- pany, it will be presumed he was a trespasser. Georgia, etc., R. Co. v. Ross, 100 Ala. 490. " For the purpose of a demurrer it would be assumed that the defend- ant's servant was acting within the scope of his employment. Greene v. N. Y., O. & W. R. Co., 102 App. Div. 322, 92 N. Y. Supp. 424. ** Recklessness, i. e., conduct which is heedless, rash, or indifferent to consequences, suffices. Neuberger v. Long Island R. Co., 131 App. Div. 885, 116 N. Y. Supp. 311; Feldman V. N. Y. Central R. Co., 142 App. Div. 339, 127 N. Y. Supp. 390, aff'd 205 N. Y. 553. ■*' Use of the epithets "purposely" or "willfully" or the like, will not alone* suffice; the specific facts show- ing willfulness must ba alleged, and a willful injury or wanton assault must be charged. Chicago, etc., R. Co. V. Hedges (Ind., 1885), 7 N. E. Rep. 801; Ivens v. Cinn., etc., R. Co. (Ind., 1885), 1 West. Rep. 131; Sherfey v. Evansville, etc., R. Co. (Ind., 1890), 23 N. E. Rep. 273. A pleading which proceeds upon the idea that it may be good either for a willful injury or for one occa- sioned by negligence should not be tolerated. Gregory v. Cleveland, Cinn., etc., R. R. Co., 112 Ind. 385, 11 West. Rep, 825, 14 N. E. Rep. 228. 866 Abbott's Forms of Pleading to be upon said track, ran one of its north-bound trains upon plaintiff from behind him, without sounding any warning signal by whistle, or bell, or otherwise, by means whereof plaintiff might be informed of the approach of said train in time to escape injury therefrom, and well knowing that plain- tiff was wholly ignorant thereof/* IV. [Allege injury and damage, as in Forms 973-980.] Wherefore [etc., dtmand of judgment]. 791. The Same, Other Allegations of Defendant's Act. That on or about the day of , 19 , at , the defendant company so carelessly, negUgently and recklessly moved, handled and operated a steam engine and tender attached, that plaintiff was struck or run against . by said engine and injured [see allegations of injury, jposi\, and plaintiff avers that such injury was the result of the wanton and reckless negligence of the defendant company in the handling and moving of said engine/^ That on , at , the defendant company so carelessly, negUgently and recklessly moved a steam engine and tender attached, at such a high and negligent and reck- less rate of speed, to wit, forty miles an hour, in the town aforesaid, that the plaintiff was struck by said engine with such force and violence that [see averments of injuries, posi\ ; and plaintiff avers that^said injury was the result of the wanton and reckless negUgence of the defendant company in moving, handhng or running said engine over and along said hne of road at such a high and reckless rate of speed aforesaid.*^ " It is not necessary for the en- gence, Spooner v. Del., L. & W. R. gineer to stop his train when he sees Co., 115 N. Y. 33; Kenyon v. N. Y. some living object on the track, if his Central, etc., R. Co., 5 Hun (N. Y.), train is visible and its approach must 479; and see note on Negligence of be heard. O'Brien v. Erie R. Co., Children, in 6 Abb. N. C. (N. Y.) 210 N. Y. 96. 104. Where the trespasser is a child of " Georgia, etc., Ry. Co. v. Ross, immature years, see as to care im- 100 Ala. 490. Both counts sustained posed upon engineer, and company's against demurrer. It is very doubt- liability for lesser degree of negli- ful if either would suffice in New Actions for Negligence 867 792. By Employee; Under Federal Employers' Liability Act. "8 I. That at all the times hereinafter mentioned defendant was and now is [allege incorporation as in Form 4-4], and was and is a common carrier by railroad engaged in interstate commerce, and that plaintiff at all times hereinafter men- tioned was employed by defendant in such interstate com- merce; **n;hat such employment was within the terms of an Act of Congress, entitled "An act relating to the habiUty of common carriers by railroad to their employees in certain cases," commonly known as the Federal Employers' Lia- bihty Act.^" [Allege the way in which plaintiff received his injury, and charge that it was caused hy defendant's negligence, as in other forms given in this subdivision, and under the subdivision Master and Servant.] [For example, when injury was caused by negligence of a fellow servant:] II. That on or" about the day of , 19 , and in the defendant's railroad yard at , plaintiff, who was employed by defendant as a [brakeman], was at- York. See general note at beginning Auliffe v. N. Y. Central R. Co., 172 of this chapter. App. Div. 597, 158 N. Y. Supp. 922. « 35 U. S. Stat, at L. 65, ch. 169, *° Under these circumstances de- as amended by 36 id. 291, ch. 143; fendant's liability is to be deter- U. S. Comp. St. Supp. 1911, pp. 1322, mined by the federal act which is 1324; 4 U. S. Comp. St. 1913, pp. paramount and exclusive. N. Y. 3913-3916. Central, etc., R. Co. v. Winfield, 244 " For recent cases involving the U. S. 147, reversing 216 N. Y. 284; question whether the employee was Mich. Central R. Co. v. Vreeland, engaged in interstate commerce 227 U. S. 59; Matter of Saxon v. within the statute, see N. Y. Central, Erie R. Co., 221 N. Y. 179; Belondo etc., Co. V. Carr, 238 U. S. 260; 111. v. N. Y. Central R. Co., 163 App. Cent. R. Co. v. Behrens, 233 id. 473; Div. 823, 174 N. Y. Supp. 179. No. Car. R. Co. v. Zachary, 232 id. In order that plaintiff may re- 248; Pedersen v. D., L. & W. R. Co., cover under the federal statute these 229 id. 146; St. L., etc., R. Co. v. allegations are essential. Rodgers v. Searle, 229 id. 156; Barlow v. Lehigh N. Y. Central, etc., R. Co., 171 App. VaUey R. Co., 214 N. Y. 116; Mo- Div. 385, 157 N. Y. Supp. 83. 868 Abbott's Forms of Pleading tempting in the course of his employment to cUmb to the top of a freight car attached to the freight train upon which plaintiff was working when he was knocked from the car by a baggage truck which had been negUgently and care- lessly left between the defendant's raihoad tracks by an employee of the defendant." [Another example, where negligent operation is to be charged:] II. That the plaintiff was employed as a yard brakeman, and on the night of the day of , 19 , was engaged as a part of his duty in going along the raihoad tracks in the defendant's yard at , and making a record of the numbers on the cars on the various tracks; that in order to obtain such numbers of the cars, it was necessary for plaintiff to pass very closely to each car; that the night was dark and rainy, and defendant negUgently omitted to have its yard lighted in any way; that while plaintiff was so engaged in his work, and in the exercise of due care and without negUgence on his part, a string of cars was negUgently operated by defendant so as to strike with great violence the string of cars upon which plaintiff was working, causing plaintiff to be knocked down and to suffer the injuries hereinafter mentioned; that defendant was negUgent in per- mitting said moving string of cars to go along the tracks of defendant's yard without any warning to plaintiff of its approach, and to strike violently against the cars upon and by which plaintiff was working without any warning what- ever. ^^ [See, also, other allegations of defendant's negligence in the next form.] III. [Allege injuries as in Forms 973-980.] IV. That this action has been brought within two years " From Norton v. Erie R. Co., 163 ^^ pjom Hallock v. Erie R. Co., 221 App, Div. 466, 148 N. Y. Supp. 769. N. Y. 662. Actions for Negligence 869 after the plaintiff received his injury as above set forth. 5» Wherefore [etc., demand of judgment]. ^* 793. The Same, Complaint Showing Liability under Fed- eral Employers' Liability Act, as well as at Common Law, and under a State Statute ; Stated in One Count. [Sustained in Payne v. N. Y., S. & W. R. Co., 201 N. Y. 436.] =^ I. That the defendant at the times hereinafter mentioned was and now is a railroad corporation, operating a line of railroad within certain parts of the State of New York, and within parts of the State of New Jersey. II. That on , 19 , the plaintiff was a brakeman employed by the defendant on a freight train which was being operated in the vicinity of [Little Ferry Junction, in the State of New Jersey] ; that while the plaintiff in the exer- cise of his duties, and of due care, was standing upon one of the cars of said train, he was thrown therefrom by the " Held necessary in Corico v. River R. Co., 98 Misc. 11, 162 N. Y. Smith, 97 Misc. 447, 161 N. Y. Supp. 42. Supp. 293, affirmed without passing '* Under the federal act damages on this point in 178 App. Div. 33. attributable to the faults of both The objection that the action was plaintiff and defendant are to be not begun within the two year period apportioned, and where plaintiff's is available to defendant although contributory negligence is asserted not raised in its pleading. Atl. Coast and left to the jury for decision, it is Line v. Bumette, 239 U. S. 199. preferable that a special verdict be Plaintiff should be allowed to amend required. McAuliffe v. N. Y. Cen- his complaint so as to allege the facts tral, etc., R. Co., 172 App. Div. 597, bringing him within the provisions 158 N. Y. Supp. 922. of the federal act, notwithstanding " Against a motion to compel a the amendment is sought more than separate statement of the facts relied two years after the injury; the fed- on to support an action on each eral statute creates no new right of ground of liability, as constituting action, but simply abolishes the each a separate and distinct cause of fellow servant rule, and modifies action. The court held that but a the common-law rule as to contribu- single cause of action was stated, tory negligence. Kinney v. Hudson although based on several grounds of liability. 870 Abbott's Forms of Pleading sudden and violent movement thereof and sustained serious bodily injuries as hereinafter set forth. III. That said injuries were caused by the aforesaid im- proper movement of the train upon which the plaintiff was employed, by the person in charge of the locomotive engine attached thereto; also, by the negUgent direction of the conductor, or other person in control of signals directing the movement thereof, and of some person who at the time had charge or direction of the movement of said train and was acting as superintendent with the authority and consent of the defendant; also because there were defects in the brakes or coupling apparatus upon said train which could have been discovered by the use of ordinary care; also because the caboose or car upon which plaintiff was stationed was de- fective in that it had no platform or guard-rail, and that the grab-irons thereon were defective and improperly and in- adequately secured, which was due to, the neglect of some person in the employ of the defendant intrusted with the duty of seeing that the cars and appurtenances were in proper and safe condition. IV. That the train was being used by defendant as a common carrier between the States of New York, New Jersey and elsewhere, and that the plaintiff was engaged in such interstate commerce when he was injured. V. [Here followed a recital of the provisions of the Employers' Liability Act of the State of New Jersey, and an averment of the service of a notice in accordance with its provisions.] VI. [Allegation of injuries; see Forms 973-980.] Wherefore [etc., demand of judgment]. 794. The Same, Injury from Defective Equipment and Material. [From Davis v. N. Y., Lake Erie, etc., R. R. Co., 110 N. Y. 646; more fully, 20 Abb. N. C. 230.] '^ ™ On an application to amend the the objection that thereby a new complaint in this action by adding cause of action was added, was held the charge of furnishing unfit fuel, untenable. 110 N. Y. 646, A Actions for Negligence 871 I. [Allege defendant's incorporation and occupation, as in Form 775; if engaged in interstate commerce, see Form 792.] II. That the plaintiff, on or about the day of , 19 , was in the employ of said defendant, upon one of defendant's engines, as an engineer, in the city of , and that it was the duty of the defendant to supply the said plaintiff with suitable and safe means, ma- terials and appliances, and keep the same in repair. III. That the defendant, not regarding its duty in that regard, negUgently, carelessly and unskillfully failed to sup- ply the said plaintiff with suitable and safe means, materials and apppUances, and failed to keep the appliances in repair, ^^ as was proper and necessary to do to secure the safety of said plaintiff, of which the said plaintiff was ignorant, but of which the said defendant had knowledge and due and timely notice. ^^ IV. That the said defendant was negUgent and careless in this, that while on the day and place aforesaid, the said plaintiff was engaged in the discharge of his duties as en- gineer, the defendant failed to furnish plaintiff a safe and proper locomotive engine with which to do his said work; but that the locomotive so furnished plaintiff was out of repair, defective, insecure and dangerous to persons upon it; ^^ and also the defendant failed to furnish proper means similar ruling was made in Texas proof of such a hole on a side track. Pac. Ry. Co. v. Cox, 145 U. S. 593. Batterson v. Chicago, etc., Ry. Co., " A charge of negligence in suffer- 49 Mich. 184. ing an appliance to become and re- ^' Plaintiff may be required to give main out of repair will not permit a bill of particulars stating in what a recovery upon ground of its im- respect the appliance was defective, proper construction. Knahtla v. Heslin v. Lake Champlain, etc., R. Oregon Short Line (Oreg.), 27 Pac. Co., 109 App. Div. 814, 96 N. Y. Rep. 91. So, a charge that the Supp. 761. engine was defective in construction *' Evidence of insufficient inspec- will not permit recovery for a defect tion is admissible under an allegation in the troxk. Buffington v. Atl., etc., that defendant was negligent in R. Co., 64 Mo. 246; Waldhier v. providing an unsafe place to work or Hannibal, etc., R. Co., 71 id. 514. appliance. See McMahon v. Lehigh Likewise, an allegation of a deep hole Valley R. Co., 138 App. Div. 628, on main track is not supported by 122 N. Y. Supp. 689. 872 Abbott's Foems of Pleading and materials and fuel for use on said engine, but furnished means and materials and fuel fof use on said engine which were unfit and unsafe and dangerous to those upon the said engine; all of which was well known to the defendant, and could have been discovered by defendant by reasonable and proper care and inspection,^" but was unknown to this plaintiff; that by reason of which defective condition, and lack of repair, and the said use of the unsafe and unfit and dangerous means, material and fuel so furnished by the de- fendant as aforesaid, an explosion of gas was caused in the fire-box of said locomotive, by means of which the said plaintiff, while so engaged in the performance of his duty, was hurled violently out of the window of the cab of the said locomotive, upon the ground, and received thereby severe and permanent bodily injuries," to his damage dollars. , Wherefore [etc., demand of judgment]. 795. By Employee, for Injury from Defective Track. [Sustained in Lyman v. Central Vermont R. R. Co., 59 Vt. 167, 10 Atl. Rep. 346, 4 N. E. Rep. 726.] I. [Allege defendant's incorporation and occupation as in Form 775; if engaged in interstate commerce, see Form 792.] II. That at the times hereinafter mentioned the plaintiff was an employee of the defendant as master and tender of the drawbridge forming a part of said railroad over Lake Champlain; and plaintiff, as defendant's employee, in the discharge of his duty as its servant, frequently and neces- sarily passed over said road on his way to , in the county of aforesaid, and return, upon the defend- ant's locomotives and cars. .*> Plaintiff should allege the em- Plaintiff's own ignorance of defect plQyer's' knowledge of an unsafe need not be alleged. Ind. R. Co. v. condition arising from failure to keep Klein, 11 Ind. 38; Ljrman v. Central in repair. Reardon v. N. Y. Consol. Vt. R. Co., 59 Vt. 167, 10 Atl. Rep. Card. Co., 5 Monthl. L. BuU. (N. Y). 346. 92; Duijlap v. Richm. & Danville "' See other allegations of injuries, R. Co., 81 Ga. 136. Forms 973-980. Actions fob Negligence 873 III. That thereupon it became and was the duty of the defendant to provide a suitable, safe and sufficient roadbed and track, and to use due and proper skill, care and diligence in providing arid maintaining a suitable, safe and sufficient roadway for the passage of said locomotives and cars to and fro over said railroad. IV. Yet the said defendant, disregarding and neglecting its duty aforesaid, did not then and there provide or main- tain a suitable, safe and sufficient roadbed and track for the passage of said locomotives and cars to. and fro over said railroad; but, on the contrary thereof, did negligently and carelessly provide a roadbed and track which was insuffi- cient, unsuitable and unsafe for the passage of locomotives and cars over the same, and negligently permitted its road- bed and tracks to be and become out of repair and unsafe, whereby and by means of the unsuitable, insufficient and unsafe condition of said roadbed and track, and on or about the day of , 19 , a certain locomotive of the defendant, whereon said plaintiff was then and there riding for the purpose of being able to attend to his duties at said drawbridge without delay, when the same should be reached by said locomotive, according to the course of his said employment and in pursuance of his duties therein, was thrown from the track and thrown down the embank- ment of said railroad; that the unsafe condition of said road- bed and tracks could have been discovered by defendant by the use of reasonable and proper care and inspection. V. [Allege injury; see Forms 973-980.] Whekefore [etc., demand of judgment]. 796. By Employee — Other Allegations of Injury from De- fective Equipment. Defective Track and Cars . The defendant disregarded its duty in reference to con- structing and maintaining its railroad track; that [a desig- nated portion of it] was so negligently, carelessly, improperly 874 Abbott's Forms of Pleading and defectively constructed, inspected and maintained that the said track broke and gave way. That the cars attached to the engine upon which plaintiff was riding were so carelessly, negligently, insecurely and defectively constructed, inspected and maintained that they broke, gave way and fell apart, and thereby caused plaintiff to be thrown from said engine.^^ Defective Brake That plaintiff, in the discharge of his duties as such [switch- man], attempted to get on one of defendant's flat cars at its rear end, and stepped upon a step placed on the car for that purpose, and caught hold of a wheel or top of a brake on said car in order to get on said car and use said brake, when said brake, by reason of its defective and unsafe condition, gave way, and plaintiff was thrown and fell violently on an iron or steel rail, and he was then and there, by reason of the wrongful, careless and negligent acts of the defendant company in allowing said car with unsafe, defective and loose brake to remain and be used in said unsafe and dan- gerous condition [injured, etc.].^^ Defective Car That by virtue and in course of plaintiff's said employ- ment [as brakeman], said plaintiff was obliged to and did stand upon and walk over the tops of said cars while in motion; that it then and there became the duty of said de- fendant to furnish cars for plaintiff to stand or walk upon that were well and safely constructed and of proper and safe material for his use as aforesaid; yet the defendant dis- regarding said duty, carelessly and wrongfully furnished plaintiff a car which . . . was so insufficiently, carelessly and negligently constructed, and of such unfit material '2 Sustained against demurrer in pleton (Tex.), 26 S. W. Rep. 1066. Walsh V. Western, etc., R. Co. (Fla.), Held, as against special demurrer, 15 So. Rep. 686. unnecessary to allege wherein the " Galveston, etc., Ry. Co. v. Tern- brake was defective. Actions fob Negligence 875 . . . that it gave way while in motion under the weight of plaintiff, whereby, ete." Defective Construction of Car That said refrigerator car on which plaintiff was so riding was so defectively constructed in its trucks and running gear that it would not turn a curve on the defendant's said railroad tracks, and when at or about the point mentioned above and being so removed, said car on account of said defective construction jumped the track and became de- railed, whereby plaintiff was thrown from the top of said car to the ground with great force and violence, inflicting upon plaintiff serious and permanent injuries, etc. . . . That said injury to plaintiff was caused wholly by defend- ant's neghgently using and permitting to be used said car so defectively constructed, and through no fault of plaintiff, by reason of all which plaintiff has been damaged, etc.^^ 797. By Employee, for Injury Caused by Failure to Adopt Proper Rules and Regulations.^'' [From Campbell v. N. Y. Central, etc., R. R. Co., 35 Hun (N. Y.), 506.] " «« Preston w. St. J., etc., R. Co., 64 Div. 541, 131 N. Y. Supp. 286; Vt. 280, 25 Atl. Rep. 486. Held, to Wagner v. N. Y., etc., R. Co., 76 suflBciently allege the particulars in App. Div. 552, 78 N. Y. Supp. 696. which the alleged negUgence con- See another precedent in Form 925, sisted. and the notes thereto. «' O'Connor v. 111. Central R. Co., This is a duty at common law. 83 Iowa, 105, 48 N. W. Rep. 1002. Anable v. N. Y. Central, etc., Co., Held, on motion to arrest judgment, 138 App. Div. 380, 122 N. Y. Supp. that the complaint was sufficient, 713; Shannon v. Same, 88 App. Div. without alleging that defendant had 349, 84 N. Y. Supp. 646. knowledge or notice of the defect, °' Under this complaint, held, error either actual or constructive, as the to exclude evidence offered to prove neghgence averred could only be that defendant was guilty of negli- proven ■ by estabUshing actual or gence in not having adopted a proper constructive knowledge. system for warning its employees '° Such a charge must be specially of an intended movement of the cars, pleaded to be available. Edgar v. See, also, Swailwood v. Lehigh Brooklyn Heights R. Co., 146 App. VaUey R. Co., 169 App. Div. 759, 876 Abbott's Forms of Pleading I. [As in Form 775.] II. That said plaintiff was employed as a laborer by the defendant on its cars and railroad, and while so employed and in the act of unloading cars that were standing still on one of the tracks of the defendant in the city of , and on or about the day of , 1^ , one of the defendant's locomotives suddenly and without warning to those employed on said train as aforesaid, ran into said train of cars and violently struck and pushed the same so that the said plaintiff was knocked down and run over by the wheels of said cars. III. That it was the duty of said defendant to [have com- petent and skillful men in charge and control of the un- loading of said train of cars and of the running of said loco- motive, and to have proper and safe locomotives, and to] make and enforce proper and safe rules and regulations for the running and operating of its locomotives and cars, so as to give proper warning and notice of the movements thereof to plaintiff, and those employed in like capacity, of the ap- proach and movements of locomotives and cars, and thus avoid injiu-y thereto; but the defendant carelessly and negli- gently disregarded and wholly neglected to observe and perform its said duties towards said plaintiff, and failed and neglected to make or enforce any rules in relation thereto; ^* that rules requiring such warning and notice to be given are of general adoption and enforcement by other railroad companies, and are practicable and effective to prevent such injuries to employees.^' IV. [For allegations of injury, see Forms 973-980.] 155 N. Y. Supp. 778; Lane v. N. Y. tional rules. Shannon v. N. Y. Central, etc., R. Co., 93 App. Div. Central, etc., R. Co., supra. 40, 86 N. Y. Supp. 947; ano. decis., «" Bell v. N. Y. Central, etc., R. in 107 App. Div. 166, 94 N. Y. Supp. Co., 128 App. Div. 730, 113 N. Y. 988; Devoe v. Same, 174 N. Y. 1. Supp. 185. '^ If defendant has promulgated A bill of particulars may be or- rules which were uniformly enforced, dered of the fiature of the rules whic'.i and were sufficient to have pre- plaintiff claims should have been vented the accident, it is not negli- adopted, but not to formulate the gent because it has not adopted addi- rules which he claims should have Actions for Negligence 877 798. To Employee, for Injury because of Insufficiency of Employees^" That defendant failed to employ a sufficient number of men to operate its railroad in such a manner as to afford reasonable safety or freedom from unnecessary danger to its employees engaged in operating its engines and trains. 799. By Employee ; Allegation of Injury Caused by Negli- gence of One Made a Vice-Principal under New York Railroad Law, § 64.'i [Under familiar principles of pleading /the negligent act and direction may be alleged as being that of the defendant itself, as:] That on or about the day of , 19 , de- fendant negligently and carelessly directed plaintiff to [state what] and negligently and carelessly failed and neg- lected to [state act of negligence in connection with direc- tion]. Or That on or about the day of , 19 , at , defendant so carelessly and negligently operated a certain locomotive engine — w, switch — or, signal — or, tele- graph office — that [specify injury resulting, as:] said engine came without any warning whatever of its approach upon the plaintiff, who was as a part of his duty then upon de- fendant's railroad track and engaged in [state]. existed. Maloney v. United Dressed signal, switch, or telegraph office, Beef Co., 130 App. Div. 369, 114 See Payne v. Lehigh Valley R. Co. N. Y. Supp. 511. 158 App. Div. 105, 143 N. Y. Supp '" Adapted from Young v. Syra- 319; Hildebrant v. Same, 157 App cuse, etc., R. Co., 166 N. Y. 227. Div. 828, 143 N. Y. Supp. 247 " This statute extends the liability Vroom v. N. Y. Central, etc., R. Co. of railroad corporations (including 129 App. Div. 858, 115 N. Y. Supp street railroads, Kent v. Jamestown 1063. St. R. Co., 205 N. Y. 361), so as to Form 800 following is framed to make vice-principals and not feUow give the act of the negligent vice- servants all employees having control principal in more detail, and showing or command over any other em- the act to be that of a fellow em- ployee, or who have physical control ployee made a vice-principal by vir- or direction of an engine, train, car, tue of the Railroad Law. 878 Abbott's Forms or Pleading 800. Another Form under Same Statute, Giving more Detail of the Negligence." [After alleging defendant's capacity as in Form 775, and 'plaintiff's employment as a brakeman, on defendant's railroad:] II. That on or about the day of , 19 , at , in the State of New York, the coupUng upon the front of the first car of the freight train upon which plaintiff was working failed to couple with the engine when the same was backed against it for that purpose; that there- upon said engine was moved forward 'by the engineer in physical charge and control thereof, in order to give plaintiff opportunity to fix said coupling. III. That plaintiff thereupon attempted to fix said couphng, and in the endeavor so to do necessarily stepped between the rails in front of said car; that while so engaged, and without any warning to him whatsoever, said engine was moved by said engineer back upon plaintiff and plaintiff was thereby injured as hereinafter alleged. IV. That plaintiff's injuries were caused solely by the negligence of the defendant, in that the engineer in charge of and physically in control of said engine moved his said engine back upon said train without receiving any signal or direc- tion so to do, and in that he gave no warning whatever that he was about to move said engine backward. V. [Allege injury, as in Forms 973-980.] Wherefore [etc., demand of judgment]. 801. By Employee for Injury Caused by Fellow Servant." [From complaint in McEvoy v. Manhattan Ry. Co., 12 N. Y. State Rep. 73.] " From Hildebrant v. Lehigh Val- for the neghgence of a fellow servant, ley R. Co., 157 App. D'v. 828, 143 This form is drawn upon the com- N. Y. Supp. 247. mon-law doctrine, which holds the " This form is not for use under master only in the event he negli- the Federal Employers' LiabiUty gently or knowingly employed, or Act, or under the New York Railroad knowingly retained an incompetent Law. In both of these statutes the servant whose negligence caused common law has been modified with plaintiff's injury, regard to the liability of a master Actions for Negligence 879 • I. [Allege defendants' incorporation and occupation as in Farm 775.] II. That on the day of , 19 , and be- tween the hours of and o'clock p. m. one M. N. was employed by said defendants to run one of their locomotive engines-from to in the city of . That said M. N. was not a competent engineer, and was also incapacitated for the duties of a locomotive engineer by reason of defective vision/^ [or, by reason of disease which was likely to attack him at any time, and render him unconscious ^"^ — or otherwise according to fact] '^ and was an incompetent, unskillful and unsuitable person to discharge the duties of such employment, of all which the defendants had full knowledge, and in so employing said M. N. to run said locomotive engine and retaining him in their employment the defendants were knowingly guilty of negligence." ^ III. That on said day and between the hours above men- tioned said plaintiff was performing his regular duties as employee of said company in the capacity of trackman upon the said railway at , in the said city of , and while so employed, and without warning to him, said loco- motive engine run by said M. N., and going at a high rate of speed, to wit, over [fifteen] miles an hour, was negligently and by reason of his said incompetence [and defective vision] run upon and over said plaintiff. IV. [Allege injury as in Forms 97S-980.] Wherefore [etc., demand of judgment]. 802. By Employee; Another Allegation of Negligent Em- ployment of Fellow Servant. That said defendant had in its service and employment on '* Irwin V. Broojclyn Heights R. connection with the negUgent act. Co., 59 App. Div. 95, 69 N. Y. Supp. Burnos v. Am. Sugar Co., 107 App. 80. Div. 286, 94 N. Y. Supp. 1104. '* Schoonmaiker v. Erie R. Co., 129 " This allegation is essential in App. Div. 467, 113 N. Y. Supp. 1048. order to show a liability at common " The character or specific acts of law. Larssen v. D., L. & W. R. Co., incompetency must have a causal 59 App. Div. 202, 69 N. Y. Supp. 352. 880 Abbott's Forms of Pleading the day of , 19 , and for months prior thereto, as engineer of the locomotive used to propel said train of cars, one M. N., who was habitually careless and negligent in the discharge of his duties as such engineer in running and operating said engine, in this, that during said time said engineer habitually and generally ran and propelled said engine at a high, unusual and dangerous rate of speed, and habitually and generally, carelessly and negligently started and stopped said engine with great, un- usual and dangerous suddenness, and habitually and gen- erally, carelessly and negligently stopped and started said train with great'danger, without giving any signal or warning thereof whatever, and was not possessed of suflficient skill to manage and operate said engine in an ordinarily careful or prudent manner, of all of which said defendant had due notice long before said day of , 19 , as aforesaid, but carelessly and negUgently retained said M. N. in its service and employment. That on said day plaintiff was ordered to go and did go upon a train of flat cars to assist in unloading the same; that said train was then standing still, with an engine attached thereto under the control and management of said M. N. That plaintiff was wholly unacquainted with said M. N. and had no notice or knowledge whatever of his careless or negligent habits or lack of skill as aforesaid. That while plaintiff was thus upon one of said cars in the line of his duty as such servant of defendant, and without any fault or negligence on his part, said M. N., carelessly and negligently, and without giving any signal or warning whatever, suddently put said engine and cars in rapid motion, whereby plaintiff was thrown, etcJ^ ™ Lake Shore, etc., Ry. Co. v. Stu- in the complaint the names of the pak, 123 Ind. 210, 23 N. E. Rep. 246. defendant's officers through whom Held, that plaintiff should not be re- he expected to show notice, quired on defendant's motion to state See notes to preceding form. Actions fob Negligence 881 803. By Employee Injured by being Transferred to Dif- ferent Service. [Complaint sustained in Lalor v. Chicago, etc., R. R. Co., 52 111. 401.] " I. [Allege defendant's incorporation and occupation; see Form 775.] II. That on or about the day of , 19 , plaintiff was employed by the defendant about the depot grounds and freight depot as [a common laborer, especially for the purpose of loading and unloading freight cars], and for no other or different purpose whatever. III. That on said day, while plaintiff was so employed, he was ordered by one M. N., who was the superintendent or foreman of defendant, employed to manage, direct and superintend the business and affairs of the defendant com- pany about its said depot, to undertake a dangerous service, viz., to couple and connect a freight car with other cars at- tached to defendant's locomotive; contrary to the special engagement of plaintiff, and to do which he was unversed and inexperienced, which fact was well known to said super- intendent. IV. That while plaiatiff was so engaged, and was neces- sarily between the said cars for that purpose, the locomotive was so negligently and carelessly managed as to bring said cars together with great force and violence, and to over- throw the plaintiff. V. [Allege, injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 804. Frightening Plaintiff's Horse, by Unusual Noises and Escaping Steam.^" I. That defendant is, and at the times hereinafter men- ™ See, also, U. P. R. Co. v. Fort, 17 '" Adapted from complaint in Shel- Wall. 553; Chicago, etc., R. R. Co. v. don v. N. Y. Central R. R. Co., 148 Bayfield, 37 Mich. 205; Hurst v. App. Div. 396, 132 N. Y. Supp. 815, Chicago, 49 Iowa, 76; Mann v. where a judgment for plaintiff was Oriental, etc., Wks., 11 R. I. 152. upheld on appeal. 882 Abbott's Foems op Pleading tioned, was, a domestic railroad corporation, maintairung and operating locomotives, trains and cars over railroad tracks in street in the [Village] of , County of , New York; that said street is one of the most important thoroughfares in said [village]. II. That on or about the day of , 19 , between the hours of and in the noon, plaintiff drove into and along said street, and while plain- tiff's horses were being used by him on said occasion and were standing on the [easterly] side of said street and at a point [describing], one of defendant's passenger trains, coming from the [south], stopped in said street so that the engine attached thereto reniained near and alongside plaintiff's horses. III. That thereupon defendant, without warning to plain- tiff, negligently, carelessly and recklessly discharged and caused and permitted to be discharged and emitted from said engine clouds of steam upon and around plaintiff and his team of horses, accompanied by loud and imusual noises; that defendant had negligently omitted and failed to provide and maintain usual, and suitable and necessary appliances on said engine to regulate and control properly the emission of steam therefrom, and to prevent it passing in an unnecessary volume from its said engine. IV. That said escaping steam, and the noises caused thereby, frightened said horses, and caused them to turn and jump and run away; that plaintiff in an endeavor to restrain and govern them was dragged along said street and stepped upon and run over by said horses. V. [Allege resulting injury; see Forms 973-980.] Wheeefore [etc., demand for judgment]. 805. For Setting Fire. I. [Allege incorporation, management of road, etc., as in other cases; see Form 775.] II. That at the times hereinafter mentioned plaintiff owned [or, occupied as lessee], premises at , in the Actions for Negligence 883 State of _ , immediately adjoining and bounded by the lands and right of way of the defendant, used by it as aforesaid.*^ III. That there were then upon said premises of plaintiff [designate the property burned, as] a barn, contain^g tons of hay, [both] belonging to plaintiff, and [together] of the value of dollars. IV. That said barn was on the day of , 19 , set on fire, and with its said contents wholly destroyed, by sparks, cinders and coals thrown from a locomotive belonging to and operated by the defendant; *^ that said locomotive was defectively equipped, constructed and op- erated, in that it permitted large and unnecessary quantities of sparks, and live cinders and coals of unusual and extraor- dinary size, to be cast therefrom.^' [Or, where the fire was communicated to plaintiff's property from defendant's right of way: V. That defendant, before and at the time hereinafter mentioned, negligently permitted dead and dry grass, and other combustible material, to accumulate and remain along its said lands and right of way so adjacent to plaintiff's said premises; ^^ that on or about ^'^ the day of , *' It is held in New York that the *' From Adriance, etc., Co. v. Le- railroad company is liable only to high Valley R. Co., 105 App. Div. the abutting owner, and not to other 33, 93 N. Y. Supp. 473; Smith v. owners whose Jands are injured by N. Y. Central R. Co., 164 App. fire communicated through the inter- Div. 421, 150 N. Y. Supp. 233; vening land. Hoffman v. King, Peck v. N. Y. Central R. Co., 165 160 N. Y. 618. N. Y. 347. 82 It is not sufficient to merely ** Higgins v. Long Isl. R. Co., 129 allege and prove the fire, and that App. Div. 415, 114 N. Y. Supp. it was caused by sparks from defend- 262. ant's engine; on the other hand, it is ** The complaint should state the not necessary for plaintiff to estab- date of the fire within reasonable lish the specific defect or act of negli- limitations. Motion to make more gence, if he proves facts or circum- specific granted, where complaint stances from which negligence may charged the setting of the fire "in be fairly inferred. See Babbitt v. the month of May." Melvin v. St. Erie R Co., 108 App. Div. 74, 95 Louis, etc., Ry. Co., 89 Mo. 106, N. Y. Supp. 429. 1 S. W. Rep. 286. 884 Abbott's Forms of Pleading 19 , the defendant, while running its trains on said road, past plaintiff's said premises,*^ negUgently and carelessly managed said trains, and failed to employ suitable means to prevent the escape of sparks and fire from the engines thereof, #id negligently and carelessly caused or allowed burning coals and fire to be cast or dropped from said en- gines upon the ground,*^ so as to set fire to the said dry grass and other material so negligently permitted to accumulate and remain upon its right of way, and negUgently and care- lessly suffered the fire to escape *^ from its said land and right of way, and to spread to and upon plaintiff's said premises and property,*' whereby plaintiff's said barn and hay were burned and destroyed.'" VI. That said fire occurred wholly without fault or negli- gence on plaintiff's part. VII. That plaintiff thereby sustained damage in the sum of dollars.'' Wherepqee [etc., demand of jvdgment].^^ ^ It is not error to deny a motion siona which constituted the defend- to make a complaint more definite ant's negligence in permitting the and certain by stating what train fire to escape, was held properly caused the injury complained of, denied in Ohio, etc., R. R. Co. v. whether it was a freight or passenger Wrape (Ind.), 30 N. E. Rep. 428. train, and whether it was going east *' See note 81. or west, where no prejudice results ^ From Mo. Pac. Ry. Co. v. Cor- to defendant. Missouri Pacific Ry. nell, 30 Kan. 35. Co. V. MerriU (Kan.), 19 Pac. Rep. '' Where timber lands have been 793. burned, the measure of damages is ^ Details of the negligence com- the difference between the market plained of need not be alleged in order value of the land immediately be- to withstand demurrer for insuffi- fore and immediately after the burn- ciency. Louisville, etc., Ry. Co. v. ing. Peo v. N. Y. Central R. Co., Canley, 119 Ind. 142. 2l3 N. Y. 136. ** Such allegation held to be essen- See Form 981 for another allega- tial in Indianapolis, etc., R. R. Co. tion of damage to property. V. Adamson, 10 Week. Law Bui. '^ If the loss has been repaid to Supp. 4; and Louisville, etc., R. R. the owner by insurance companies, Co. V. Ehlert, 8 Week. Cinn. Law who have taken pro tanto assign- Bul. 79. A motion to make this ments thereof, the owner and the averment in the complaint more companies may unite in a single specific by stating the acts or omis- action against the railroad. Jacobs Actions for Negligence 885 806. For Killing Animals.^^ I. [Allege defendant's incorporation and occupation as in Farm 775.] II. That on or about the day of , 19 , the plaintiff was the owner and possessed of certain cattle, to wit [designating them], of the value of dollars. III. That on or about said day, by reason of defendant's neglect to repair a certain fence on the side of its railroad track at , which it was bound to repair, and by reason of defendant's like neglect to build or repair a certain culvert and cattle guard at , which it was bound to build and repair, plaintiff's said cattle, without fault on plaintiff's part, strayed on defendant's said track, [and by reason of defendant's negligence in running and managing its locomotives and cars] ''' were then and there run over and killed, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. V. N. Y. Central R. Co., 107 App. Div. 134, 94 N. Y. Supp. 954, aff'd 186 N. Y. 586. '^ See next form, for the action under the New York statute. The above form, substantially as given, was sustained against de- murrer in Downs v. Central Ver- mont R. Co., 14 N. Y. Supp. 573, 38 N. Y. State Rep. 228. 3* Where the petition alleged that "the defendant, by its agents and servants, did run . . one of its engines in such a grossly negligent and careless manner that the same ran against and over" plaintiff's cow, and killed her, held, that the petition was good as against a mo- tion for a more specific statement. Grinde v. M. & St. P. R. Co., 42 Iowa, 376. Where the allegations were that "Ihe defendant by its locomotives negligently killed plaintiff's animals," and "the defendant negligently killed plaintiff's horse," held, that evidence of any negligent act whatever is ad- missible. Mack V. St. Louis, etc., R. Co., 77 Mo. 232; Schneider v. Mo. Pac. R. Co., 75 id. 295. . These allegations would be insuf- ficient in New York. See note at the beginning of this chapter. So, also, as to the allegations of negligent running of defendant's engine, in the form, the character of the negli- gence must be charged. Where the complaint charged merely that the defendant so care- lessly ran and managed its cars and locomotives that they ran against the plaintiff's cows, held, that the referee at the trial, on plaintiff's application, had power to allow an amendment adding an allegation that the cattle strayed through a fence which defendant was bound to maintain. Becker v. N. Y., etc., R. Co., Id N. Y. Supp. 413. At common law, where estrays 886 Abbott's Foems of Pleading 807. The Same, under New York Statute.^^ [Under N. Y. Railroad Law, ch. 49, Cons. Laws, L. 1910, chap. 481, § 52.] I. [Alkge defendant's incorporation and occupation, as in Form 775.] IL That defendant, after the right of way for its roadway has been acquired, and its hues of road thereon had been opened for use through aforesaid, failed to erect [or, to maintain in good repair — or — to erect and maintain in good repair] fences on the side of said road, between its said roadway and premises [occupied by plaintiff,'*] adjoining said roadway at aforesaid [or, if insufficiency of the fence is the question, or proper gates at farm crossings, state the facts so as to make a case within the statute] ; that such fences were necessary to prevent domestic animals from going upon the track of the defendant from said adjoining lands. III. That in consequence of defendant's said neglect, and on or about the day of , 19 [designate the animals], belonging to plaintiff, and of the value of dollars, without plaintiff's fault or negligence, strayed from upon the highway go upon the railroad 110 N. Y. Supp. 506. For an injury land and are injured, the company under such circumstances, the allega- is not liable for the injury unless tions of negligence in Form 790 were caused by its reckless, wanton or held necessary. But the statute aa malicious acts. See Bateman v. since amended makes the liability Rutland R. R. Co., 126 App. Div. also include the failure to keep in 511, 110 N. Y. Supp. 506. The repair. allegation of defendant's act in » It is not necessary that the ani- such a case must be as in Form mals should have been lawfully upon 790. the adjoining premises. Purdy v. »5 Prior to the amendment of 1915 N. Y. & N. H. R. R.. Co., 61 N. Y. (c. 281) a railroad company was held 353. not liable for injury to animals which Nor is it a defense against an ac- strayed from the highway upon its tion by a third person, that the owner right of way, in the absence of wiKul of the adjoining land had agreed negligence, even though the cattle with the railroad to maintain a guards required by the statute (§ 52) fence. Shepard v. Pa. R. R. Co., 86 were not in repair. Bateman v. Rut- Misc. 272, 148 N. Y. Supp. 388. aff'd. land R. R. Co., 126 App. Div. 511, 166 App. Div. 970. Actions for Negligence 887 plaintiff's said premises into and upon the said right of way and track of the defendant. IV. That in consequence thereof said defendant, by its agents and servants [if desired to add allegation of negligence in running, which, however, is not necessary under the New York statute, may say: negligently and carelessly managed and ran a locomotive and cars along said track at a high and dangerous rate of speed, or, state other particulars showing negligence, and] then and there ran its locomotives and cars against and over the said animals of plaintiff, and killed, maimed and injured the saifie, to plaintiff's damage dollars.'^ Wherefore [etc., demand of judgment], II. AGAINST STREET RAILWAY COMPANY 808. By Passenger; for Negligent Starting of Car. I. [Allege incorporation of defendant as in Form 44) ^ic.] '* and at the times hereinafter mentioned [owned, and] was engaged in the operation of, a street surface railway upon various streets in the city of , including the hne operated upon street in said city.®^ II. That on or about the day of , 19 , plaintiff was a passenger ^'"* on one of defendants' cars " There is no liability on the part If the allegation was that defend- of the railroad unless the animals ant owned and operated the road, are injured' by the railroad's ''agents, and this allegation stands admitted, or engines or cars." Jimerson v. no proof of defendant's operation of Erie R. Co., 203 N. Y. 518. the car causing the injury is neces- ^ See note to this paragraph in sary, since there will be a presump- Form 775. tion of its exclusive possession of its M Where the defendant's answer tracks. Jennings v. Brooklyn Heights admitted operation upon the street R. Co., 121 App. Div. 587, 106 N. Y. named, and no proof was offered Supp. 279. by it of any other company operat- See Form 826, for allegation ap- ing over the single line of double propriate in an action against the track on the street, it was held that Brooklyn Heights R. R. Co. a ffrima Jade case of operation by ™ "Lawfully on" defendant's car defendant was admitted. Schnell v. will not suffice. See Fairchild v. Leo, Met. St. Ry. Co., 50 App. Div. 616, 149 App. Div. 31, 133 N. Y. Supp. 64 N. Y. Supp. 67. 672. 888 Abbott's Foems of Pleading then being operated by it upon said street. That near the intersection of street and said street plaintiff notified the conductor in charge of said car to stop the same at such intersection for the purpose of allowing plaintiff to alight therefrom, who thereupon notified the motorman; that said car was thereupon stopped,"^ for such purpose and at the usual place,"^ and plaintiff at- tempted to alight therefrom, but that, through the negli- gence and carelessness of the motorman or conductor of said car, or of both of them, said car was suddenly started while plaintiff was in the act of alighting therefrom, and before he had had reasonable opportunity to fully descend therefrom. III. That in consequence of the aforesaid negUgence, and without fault or negligence on plaintiff's part, he was vio- lently thrown down and dragged by said car a distance of over [twenty] feet. IV. [Allege extent of injury and damage, as in Forms 973- 980.] Wherefore [etc., demand of judgment]. 809. The Same, for Starting Car before Plaintiff Reached Place of Safety. 1°^ I. [As in Form 808.] !»• Plaintiff may not recover under N. Y. Supp. 1051, aff'd 168 N. Y. this allegation upon proof that the 681. car was moving slowly. See Patter- '"^ A momentary stop because of son v. Westchester Elec. Ry. Co., an obstruction ahead does not give 26 App. Div. 336, 49 N. Y. Supp. the invitation to descend. See 796; Ande^on v. 3d Ave. R. Co., Foden v. Brooklyn Heights R. Co., 36 App. Div. 309, 56 N. Y. Supp. 136 App. Div. 765, 121 N. Y. Supp. 292; Coleman v. Met. St. Ry. Co., 420. 82 App. Div. 435, 81 N. Y. Supp. "' Adapted from complaints in 836; Walsh v. Nassau Elee. R. Co., Morrow v. Brooklyn Heights R. R. 133 App. Div. 144, 117 N. Y. Supp. Co., 119 App. Div. 22, 103 N, Y. 358. Supp. 998, and Plum v. Met. St. R. The trial court has power to per- Co., 91 App. Div. 420, 86 N. Y. mit an amendment of the complaint Supp. 827. See, also, Dochtermann so as to charge that "the car was v. Brooklyn Heights R. R. Co., nearly stopped." Rosenberg v. 3d 32 App. Div. 13, 52 N. Y. Supp. Ave. R. Co., 47 App. Div. 323, 61 1051. Actions for Negligence 889 II. That at the corner of and streets in said city, and on or about the day of , 19 , defendant invited and received plaintiff upon one of its cars as a passenger; that while plaintiff was free from all fault on her part, and was in the act of entering said car [after she had mounted upon the platform thereof], de- fendant negligently started said car forward [with a violent jerk] '"* before plaintiff had been given a reason- able opportunity to get into said car, or to take a seat therein, thereby throwing plaintiff upon and against said car. III. [Allege injury resulting ;, see Forms 973-980.] Wherefore [etc., demand for judgment]. 810. The Same, Negligent Acceleration of Speed as Plaintiff Was Preparing to Alight. ^"^ I. [As in Form 808.] II. [As in first sentence of paragraph II of Form 808, contin- uing: ]That near the intersection of street and said street, plaintiff requested the conductor in charge of said car to stop the same at street for the purpose of allowing plaintiff to alight therefrom, and that said conductor thereupon signalled to the motorman in 'charge of said car to stop said car; that while plaintiff was standing upon the [rear] platform of said car waiting for said car to come to a full stop to permit him to aUght therefrom, through the negUgence and carelessness of said motorman and conductor said car was suddenly and violently started forward g,t great speed; that in consequence of said negligence, and without '"* It was held in Morrow v. Brook- was seeking to alight, after invitation lyn Heights R. Co., supra, that it so to do, and the injury resulted from was not essential to also allege the the violent starting of the car, see manner of starting the car, and that Crow v. Met. St. Ry. Co., 70 App. a complaint charging that the car Div. 202, 75 N. Y. Supp. 377, aff'd started with a violent jerk could 174 N. Y. 539; Adams v. N. Y. City be upheld without proof that the Ry. Co., 116 App. Div. 315, 101 N. Y. manner of starting was unusual. Supp. 510 (ano. dec, 125 App. Div. 105 Pqj. cases where the passenger 551, 109 N. Y. Supp. 1019). 890 Abbott's Forms of Pleading fault on plaintiff's part, he was violently thrown against said car and to the pavement of the street. III. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 811. The Same, Negligent Acceleration of Speed as Plaintiff was Preparing to Step upon Car.^"^ I. [As in Form 808.] II. That near the intersection of street and said street, at a place where defendant's cars on said hne usually stop for the taking on of passengers, plaintiff, on the day of , 19 , for the purpose and with the intent of becoming a passenger, notified the motor- man in charge of one of defendant's said cars of said line that he desired to board the same; that said motorman, as said car approached said usual stopping place, applied his brake and lowered the speed of said car until it was moving very slowly; that thereupon plaintiff attempted to board said car, had put one foot upon the step thereof, and was in the act of stepping upon said car when by the negligence of the motorman or conductor in charge of said car, or of both, said car was suddenly and violently started forward, and plaintiff was thereby thrown to the ground. III. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 812. The Same, for Negligent Acceleration of Speed while Plaintiff was Standing in Car."' I. [As in Form 808.] II. That on or about the day of > 19 , ™ For actions of this character, App. Div. 724, 155 N. Y. Supp. see Kimber v. Met. St.- Ry. Co., 69 734. App. Div. 353, 74 N. Y. Supp. 966; For other cases of this character, Lobsenz v. Same, 72 App. Div. 181, see Johnson v. Brooklyn Heights 76 N. Y. Supp. 411. R. Co., 63 App. Div. 374, 71 N. Y. "" From complaint in Futoran- Supp. 568; Grotsch v. Steinway Ry. sky V. Nassau Elec. R. Co., 169 Co., 19 App. Div. 130, 45 N. Y. Supp. 1075. Actions for Negligence 891 while a train of cars operated by defendant and on which plaintiff was a passenger, was proceeding along and over Avenue, more particularly at or about Street, in the City of , suddenly and without notice or warning to plaintiff, the said train of cars accelerated its speed with such an extraordinary jerk, that by reason of the said acceleration of speed and extraordinary jerk, the plaintiff was thrown off his equilibrium, and the plaintiff fell from one of the cars of the said train into the street at and about the aforementioned place, thereby causing plaintiff to sustain severe and painful injuries as hereinafter mentioned. III. That the said occurrence, and injuries resulting therefrom to plaintiff, were due wholly and solely to the negligence and carelessness of the defendant herein, its agents and servants in charge of -the said train of cars, in suddenly accelerating the speed of the said train of cars with an extraordinary jerk and violence, so as to throw plain- tiff and others off their equilibrium; owiag to the negligent and. incompetent management of the agents and servants of the defendant in charge of the said train of cars; because of the incompetent and negligent manner on the part of the motorman and engineer of said train of cars, in not properly and skillfully running the said train of cars; and in general, in failing to exercise reasonable care, diligence and prudence in the premises, and that the plaintiff herein was wholly free from any fault or negligence in the premises on his part in anywise contributing to said occurrence and injuries. IV. Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 813. The Same, Injury while Riding on Platform Between Cars, from Violent Motion of Train. ^"^ I. [As in Form 808.] II. That on or about the day of , 19 , "» From Starkman v. Interb. Eapid Transit Co., 83 Misc. 62, 144 N. Y. Supp. 780. 892 Abbott's Forms of Pleading the plaintiff was a passenger for hire on one of defendant's cars upon said Avenue Elevated Railroad. That at or near the Street station of said elevated railroad defendant, its agents or servants, negligently, carelessly and violently stopped said car upon which said -plaintiff was riding so as to throw plaintiff in such a manner that plain- tiff's left foot was caught between the car upon which plain- tiff was riding and the car following and coupled thereto. III. That solely by the aforesaid negUgence of the de- fendant, its agents or servants, and without fault or negli- • gence on plaintiff's part, the plaintiff was negligently, care- lessly and violently thrown against the railing of said car and his foot was caught and crushed between the bumpers of the car upon which plaintiff was riding and the car fol- lowing and coupled thereto, whereby plaintiff was injured. IV. [Allege injuries; see Forms 973-980.] Wherefore [etc., demand for judgment], 814. The Same, Injury to Passenger Necessarily Riding on Platform or Step of Car.io^ [Substitute for Paragraph II of Form 812:] II. That on or about the day of , 19 , at about the hour of o'clock in the noon, plaintiff was a passenger on one of defendant's cars operated on said street; that said car was crowded with pas- sengers at the time that plaintiff got on the same, and that there was no room for plaintiff to stand except upon the platform [or, step] of the car; that plaintiff had signalled said car to stop, and it had been stopped for the purpose of permitting plaintiff to get aboard; that after plaintiff got aboard of said car, upon the [step] thereof, said car was thereupon started, and the speed thereof was increased very rapidly. "*> Not negligence yer se on the See cases of this character reviewed part of the passenger. See Mc- in Moskowitz v. Brooklyn Heights Grath V. Brooklyn, etc., R. Co., 87 R. R. Co., 89 App. Div. 425, 85 Hun, 310, 34 N. Y. Supp. 365. N. Y. Supp. 960, aff'd 183 N. Y. 521. Actions for Negligence 893 III. [Adapt from II and III of Form 812 or from Forms 815 or 816.] 815. The Same, while Voluntarily Riding on Platform."" I. [Allege incorporation and business as in Form 808.] II. That on or about the day of , 19 , plaintiff was a passenger on one of defendant's cars and was riding upon [the step of] the [front] platform thereof, by de- fendant's permission and invitation; that said car was then proceeding in a direction, and was at or near the junction of street with said street; that while so riding upon said car as a passenger as aforesaid, and without fault or negligence on plaintiff's part, the driver so negligently and carelessly managed and operated the same that plaintiff was jolted off from said car, and thereby caused to fall or strike against [state nature of injury received, as] one of the supporting columns of an elevated railroad upon said street; that the negligent operation of said car consisted in [state what, as] its being rim at speed over a depression in defendant's track, where the same was being repaired, and thereby said car swayed and bounded so violently as to throw plaintiff therefrom. III. [Allege injury according to the fact; see Forms 97S-980.] Wherefore [etc., demand of judgment]. 816. The Same, Injury to Passenger Riding on Running- Board.i" I. [Allege defendant's incorporation and operation of street railroad, as in Form 808.] II. That at about o'clock in the. noon of the day of , 19 , plaintiff became a pas- 11" It is not negligence per se to N. Y. City R. R. Co., 112 App. Div. ride upon the front platform, but 260, 98 N. Y. Supp. 276. plaintiff is in a more dangerous posi- '" It is not negligence per se to tion and must take precaution by ride upon the running board of a car. grasping some support or in his See Hassen v. Nassau Elec. R. R. manner of standing. See Depew v. Co., 34 App. Div. 71, 53 N. Y. Supp. 1069. 894 Abbott's Forms of Pleading senger upon one of the defendant's cars operated on said street; that there was no sitting room upon said car, and plaintiff was compelled to stand upon the running board which extended alongside the said car. III. [Allege the cause of plaintiff's injury, as:] That while said car was moving at a rapid rate of speed, through the negligence and carelessness of the motorman in charge of its operation, while rounding a curve on said street,"^ said car jerked, lurched and vibrated to such an unusual extent that plaintiff was thereby violently thrown from the car and to the street. IV. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 817. The Same, for Injuries Caused by Collision,"' I. [Allege incorporation and operation of railroad, as in Form 808.] II. [Allege plaintiff's presence as passenger as in preceding forms] ; that defendant so negligently and carelessly drove and managed, or caused to be driven and managed by its servants, one of its cars, which car was then and there pro- ceeding through said street in an [easterly] direc- tion, that thereby the said car was driven into, against and upon a car belonging to the [Second Avenue Railroad Com- pany] which was then being lawfully driven upon the tracks of said [Second Avenue Railroad Company]. III. [As to allegations of nature and extent of the plaintiff's injury, and damages resulting, see Forms 973-980.] Wherefore [etc., demand of judgment]. 818. The Same, Injury in Panic among Passengers."* [After alleging defendant's incorporation and operation of 112 Gatens v. Met. St. Ry. Co., 89 against either or both; if they are App. Div. 311, 85 N. Y. Supp. 967, sued jointly, and at the trial it ap- aff'd 181 N. Y. 515; Hassen v. Nassau pear that but one company is charge- Eleo. R. Co., supra. able with negligence, a recovery "3 Where the coUision is caused may be had against that company, by the negligence of the employees '" For cases of this character, see of both companies, an action will lie Poulsen v. Nassau Elec. R. Co., 18 Actions for Negligence 895 street railroad, and that plaintiff was a passenger thereon, as in Form 808, continue: II. That while plaintiff was within said car as such pas- senger thereon, [show cause of panic, as:] flames and smoke suddenly appeared in various parts of said car, and that thereby a panic was created among the passengers; that plaintiff with others thereupon endeavored to leave said car, and that as plaintiff was attempting so to do and with- out fault on his part, he was injured as hereinafter alleged. III. On information and belief that such [flames and smoke] in said car were caused by defendant's negligence in the operation of a car which was not properly constructed or which was out of repair, and by the incompetence and carelessness of the motorman of said car [or otherwise briefly indicate the general character of the negligence]. IV. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 819. The Same, againist Street Railroad Company and Municipality for Failure to Keep in Repair the Road- way within or Adjacent to Tracks."' I. [Allege incorporation and occupation of defendant rail- road, as in Form 808; allege character of defendant municipal- ity, notice, etc., as in Form 836.] II. That at all times hereinafter mentioned defendant [R. R. Co.] owned, maintained and operated various lines of surface railroad along and upon various streets and thoroughfares in said City, and among others owned, main- tained and operated a line of double track surface railroad in, along and upon a public street therein known as Avenue, and was and now is engaged in transporting pas- sengers for hire thereon. App. Div. 221, 45 N. Y. Supp. 941; defendants upon this complaint in ano. dec, 30 App. Div. 246, 51 N. Y. Grissinger v. Int. Ry. Co., 143 App. Supp. 933; Dorff v. Brooklyn Heights Div. 631, 128 N. Y. Supp. 63; see, E. Co., 95 App. Div. 82, 88 N. Y. also, Doyle v. City of N. Y., 58 Supp. 463. App. Div, 588, 69 N. Y. Supp. "6 Recovery sustained against both 120. 896 Abbott's Forms of Pleading III. That the defendant [City] had prior to the times hereinafter mentioned caused said Avenue to be paved with [asphalt]. IV. That the defendant [City] had carelessly and negli- gently at and for a long time prior to the day of ,19 , suffered and permitted the pavement upon said Avenue, at or near the intersection of street, to become broken and out of repair, and in an unsafe and dangerous condition for pedestrians and others using the same, and after due notice of its said condition suffered and permitted the surface thereof to become and remain broken and full of deep holes and depressions, so as to render the same at said place unsafe and dangerous for pedestrians and others to pass along and over the same."® V. That heretofore and on or about the day of , 19 , plaintiff was a passenger upon one of the cars of the defendant [R. R. Co.], operated by it along said Avenue; that for the purpose of permitting plain- tiff to alight from its said car, said defendant negligently and carelessly, and disregarding its duty to plaintiff as its passenger, stopped its said car at or near the intersection of said street and said Avenue, and negU- gently and carelessly then and there invited and directed plaintiff to alight from said car at said place and in such manner that plaintiff was compelled to and did alight and step down from said car into a hole or depression in said Avenue, at a place which was an unsafe and dangerous place at which to discharge plaintiff or require her to alight; that said place was rendered dangerous, and unfit, and unsafe, because of the negligence and carelessness of the defendant '"In Kantrowitz v. Brooklyn, duty under § 178 of the Railroad Law, Q. C. & S. R. Co., 173 App. Div. whereby plaintiff when driving his ve- 192, 159 N. y. Supp. 263, the negli- hide had its wheel caught and broken gence charged was in permitting the in an abrupt break, hole or hollow; pavement in the highway to be im- it was held error to dismiss at the properly and dangerously constructed opening because the dimensions of and to remain in an unsafe and dan- the defect were given, and showed gerous condition in violation of its the defect to be of slight depth. Actions for Negligence 897 [City] and the defendant [R. R. Co.] in permitting said Avenue and the pavement thereof to be and remain in a broken and unsafe and dangerous condition; that said de- pression or hole was located in said avenue contiguous to the said railroad tracks therein, and extended to and within, a distance of two feet from the rails of said tracks. VI. That in so alighting from said car, plaintiff was pre- cipitated and thrown to the pavement, and by reason thereof [allege resulting injury, as in Forms 973-980]. Wherefore [etc., demand for judgment]. 820. The Same, Passenger Alighting where Street was Unsafe, because of Repairs being Made by Defendant. [Sustained in Page v. United Traction Co., 161 App. Div. 383, 146 N. Y. Supp. 530.] i" I and II. [As in Form 808.] III. That when said car in which plaintiff was riding, as a passenger, as aforesaid, reached the corner of Street and Avenue, and as plaintiff alighted therefrom, having signalled said conductor in charge of said car of her intention so to do, and said car having stopped at a point about feet [north] of the [north] side of Street, at a place which had been theretofore and was at the time last aforesaid excavated by the defend- ant, which was at that time making repairs to the tracks and roadbed, plaintiff stepped into said excavation, thereby throwing her to the pavement. IV. That the said injuries so sustained by plaintiff, as aforesaid, were due to the carelessness and negligence of the above named defendant, its officers, agents and servants in the premises [in failing to warn plaintiff of the existence of said excavation, and in stopping said car alongside thereof without giving plaintiff proper warning] "* and without any negligence or carelessness on the part of this plaintiff. "'See, also, Wolf v. Third Ave. Heights R. R. Co., 132 App. Div. R. Co., 67 App. Div. 605, 74 N. Y. 399, 116 N. Y. Supp. 760. Supp. 336; Catterson v. Brooklyn "*This bracketed allegation was 898 Abbott's Forms of Pleading V. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 821. Injury to Boy Stealing a Ride.^^' I. [Usual allegation of defendant's corporate capacity and operation of railroad, as in Form 808.] II. That on or about the day of , 19 , at "about the hour of o'clock in the noon, plaintiff was upon the [front platform] of one of the defend- ant's cars on said street, and while said car was moving rapidly plaintiff was forcibly and unlawfully ejected therefrom by the conductor in charge thereof [or, that the conductor thereof threatened plaintiff with bodily harm, and in fear thereof plaintiff fell from said car].^^" III. That in consequence of being so ejected from said car, plaintiff fell upon the street [and one of the wheels of the car ran over his right leg]. That said injury was received without fault or neglect on plaintiff's part. IV. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 822. For Running over Pedestrian. [Complaint sustained in Agnew v. Brooklyn City Ry. Co., 20 Abb. N. C. (N. Y.) 235, 13 Civ. Pro. R. 25, 5 N. Y. Supp. 756; Chicago, etc., R. Co. v. Jennings, 157 111. 274, 41 N. E. Rep. 629.] not in the complaint; its presence Ansteth v. Buffalo Ry. Co., supra. would have avoided the criticism of But facts must be shown which will its sufficiency, although it was up- establish one or the other alternative, held without this specification of the Prenderville v. Coney Isl., etc., R. character of the negligence charged. Co., 131 App. Div. 303, 115 N. 11' From complaint in Ansteth v. Y. Supp. 633; Luter v. Union Ry. Buffalo Ry. Co., 145 N. Y. 210, Co., 84 Misc. 46, 145 N. Y. Supp. where plaintiff's recovery was bus- 893. tained. Under complaints in Assault 1™ Either a forcible ejection, or will be found precedents for malicious threat of bodily injury causing injury inflicted by an employee upon fright and consequent falling from a person either passenger or trea- the car, will support the action. See passer. Actions fob Negligence 899 I. [Allegation of defendant's incorporation and occupation as in Form 808, and adding if according to fact, for purpose of securing an admission 'dispensing with proof, and of all the cars run upon such railroad in said street.] ^^^ II. That on or about the day of , 19 , plaintiff was lawfully upon street which is a pubhc highway in the city of , and was in the act of crossing said street; that at the same time a car operated by defend- ant, in charge of its servants, was passing over and along the said street. III. That said defendant, and its said servants, were so negligent and careless in*the management and operation of said car and the control thereof, that in consequence thereof, and without fault on the part of plaintiff, she was knocked violently to the ground by said car. IV. [Characterize in a general way the negligent operation of the car, as:] On information and belief, that the manage- ment and operation of said car were negligent in that it was being operated at a high and improper rate of speed, and without the giving of any warning of its approach, that the brakes on said car were insufficient and out of repair [etc., specifying everything having a probable part in producing the injury].^^^ V. [Allege injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. 823. By Street-sweeper, or Other Workman Employed on Street Work.123 I. [Allege defendant's incorporation and occupation, as in Form 808.] 1" See note 99 to Form 808, on this urban St. R. Co., 108 App. Div. 254, point. 95 N. Y. Supp. 721; O'Connor v. '^2 This paragraph was not in the Union R. Co., 67 App. Div. 99, 73 precedents, but is inserted to fulfill N. Y. Supp. 606; Dipalo v. 3d Ave. the requirements in New York. See R. Co., 55 App. Div. 566, 67 N. Y. general note at beginning of this Supp. 421; Bengivenga v. Brooklyn chapter on alleging negligence. Heights R. Co., 48 App. Div. 515, 123 For cases involving actions of 62 N. Y. Supp. 912. this character, see Reilly v. Inter- 900 Abbott's Forms of Pleading II. That on or about the day of , 19 , plaintiff was in the employ of the city of , as a [street sweeper]; that in the course of* his duty, plaintiff nec- essarily was upon the defendant's tracks on said street, for the purpose of sweeping the street between the rails. III. That on said day, while plaintiff was so working, and without any fault on his part, one of defendant's cars struck and injured plaintiff through the negligence of the defendant's servants in charge of said car, in that they per- mitted said car to approach the spot where plaintiff was working at a high rate of speed, and without giving plaintiff warning of any kind of its approach. [Or otherwise allege the character of the negligence according to the fact.] ^^* IV. [Allege resulting injury, as in Forms 973-980.] WHEREroRE [etc., demand for judgment]. 824. By Infant, Run over while in Street.^^'* I. [Allege infancy of plaintiff and appointment of guardian ad litem, as in Form 79.] II. [Allege defendant's corporate capacity and operation of street railroad, as in Form 808.] III. That on or about the day of , 19 , said infant plaintiff, while in the act of walking across the tracks upon which the defendant's cars were being operated on street, near the intersection of street, at about o'clock in the noon, was struck and run over by one of the defendant's cars, through the negli- gence and carelessness of the defendant in the management, operation and control thereof. IV. [Allege in general terms the character of the negligence in the operation of the car; see Form 822.] V. [Allege resulting injury; see Forms 973-980.] Wherefore [etc., demand for judgment]. 124 S 'See general note on alleging Met. St. Ry. Co., 170 N. Y. 592, negligence, at the beginning of this aff'g 63 App. Div. 1, 71 N. Y. Supp. chapter. 326, where a recovery by plaintifi 126 From complaint in Fullerton v, was sustained. Actions for Negligence 901 825. Injury from Receiving Electric Shock, i^s I. [Alkge defendant's corporate capacity, and operation of surface railroad, as in Form 808, continuing:] the cars of which were and are propelled by electricity, under what is known as the underground trolley system. II. That on or about the day of , 19 , defendant in disregard of its duty and the rights of the public negligently and carelessly permitted the slot rails of one of its tracks on said street, at or near the intersection of street, to become charged with electricity. III. That on said day, at about the hour of in the noon, while attempting to cross said street at said place [upon the crosswalk thereof], and while proceeding in a careful manner, plaintiff stepped upon said slot rail and thereupon received the current of electricity with which said rail was charged. ^^' IV. That thereby plaintiff was precipitated violently to the pavement [allege resulting injury; see Forms 973-980.] Wherefore [etc., demand for judgment]. 826. For Failure to Repair Pavement-^^s [Under N. Y. Raihoad Law, § 178.] ^^^ I. On information and belief, that at the times hereinafter mentioned, defendant was and is a domestic street surface railroad corporation; that as such corporation, defendant leased, operated and controlled a system of street surface raUroad along and upon divers streets in the [Borough of Brooklyn] including Avenue, and that as such i2«From Ludwig v. Met. St. Ry. lyn Heights R. Co., 117 App. Div. Co., 71 App. Div. 210, 75 N. Y. 784, 102 N. Y. Supp. 982. Supp: 667, rev'd in 174 N. Y. 546, '^s prom Hayes w. Brooklyn Heights on error in judge's charge. R. R. Co., 200 N. Y. 183, where it was 1" The doctrine of res ipsa loquitur held that the complaint was in would apply to these facts. Ludwig negligence and not nuisance. V. Met. St. Ry. Co., supra; Clarke v. '^9 -pj^g statute lays an original Nassau Elec. R. Co., 9 App. Div. 51, duty upon the railroad company. 41 N. Y. Supp. 78; Sullivan v. Brook- Schuster v. 42d St., etc., Ry. Co., 192 N. Y. 403. 902 Abbott's Forms of Pleading lessee and operator of the said railroad on said avenue it was the defendant's duty to keep in repair that portion of said avenue between its railroad tracks and between the rails of its tracks and two feet in width outside of its tracks. II. Upon information and belief, that on or about the day of , 19 , and for a long time prior thereto, defendant suffered that portion of said avenue be- tween the rails of its tracks [or, between the rails of its tracks and two feet in width — ^westerly — therefrom] and near the point where said avenue intersects street, to become and continue out of repair, and a rut or hole to be formed therein, and to become rough and uneven."" III. That on or about said day of , 19 , plaintiff was crossing said avenue at said place, and that while so crossing said street his foot became inserted in said portion of said avenue so out of repair, and was thereby injured and fractured. IV. [Alkge resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 827. For Colliding with Plaintiff's Vehicle. [Sustained in Wright v. United Traction Co., 131 App. Div. 365, 115 N. Y. Supp. 289.] . I. [As in Form 822\ II. That on or about the day of > 19 , plaintiff was carefully driving [a horse and wagon] belonging to him, on said street, and was necessarily upon the defendant's track; that while plaintiff was so driving, one of the defendant's cars propelled with great force and vio- lence struck the rear of plaintiff's wagon, and threw plaintiff out upon the roadway [and overturned his wagon — w other- wise according to the fact]. III. That said collision, and plaintiff's injm-ies resulting therefrom, were caused solely by the negUgence and care- lessness of defendant, and its servants in charge of said car, 1™ See allegation in Kantrowitz v. Div. 192, 159 N. Y. Supp. 263, quoted Brooklyn, etc., R. Co., 173 App. in note to Form 819. Actions for Negligence 903 in that [characterize in general terms the act or acts of negligence which brought about the collision].^^^ IV. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 828. Allegation of Condition of Highway Making Neces- sary Use of Defendant's Track by Vehicles. That at the times hereinafter mentioned that portion of said street, used as a roadway for vehicles, [between street and street] was in such condition by reason of construction and repairs then being made thereon as to be impassable for travel, and that in order to pass over said highway at that place it was necessary for vehicles to use defendant's tracks for a distance of about ; that this condition of said highway, and use of defendant's tracks by vehicles, was at the times hereinafter mentioned well known to defendant."^ 829. Allegation of Defective Brake."^ That it was and is the duty of the defendant to provide proper brakes and other appliances to its cars, to enable the motormen to control the speed of the same, and stop the same suddenly in case of accident or other necessity, so that the pubhc might safely pass and repass said street, or travel over the same. That, at the times hereinafter mentioned, 1" The complaint in the precedent its cars with more care than would did not set forth any specific act of otherwise have been required, in negligence, but it was upheld as order to prevent collisions with against a motion to dismiss it on vehicles using its tracks at such that ground; the court considered point. Escher v. Buffalo & L. E. that neghgence was fairly inferable. Traction Co., 220 N. Y. 243. It will be safer, however, to fortify '" Other allegations covering de- the complaint with a specification fects in car or track, incompetency of of whatever carelessness produced fellow servant, etc., can be so readily the accident; see general note on adapted from forms given, supra, in alleging negligence at the beginning actions against steam railroad com- of this chapter. panies, that it is deemed unnecessary 132 These circumstances obligate to repeat them, an electric surface railroad to run 904 Abbott's Forms of Pleading the defendant, neglecting its duty in this behalf, carelessly and negligently placed and used upon the said road for the conveyance of passengers thereon, a car, the brakes of which were broken, worn out or out of order, or insufficient to stop said car suddenly, so that the motorman could not control the same, or stop it suddenly in case of accident; that the defendant had been previously notified of the defect in said brake, and that such car was unsafe to the pubHc by reason of such defect, but neghgently persisted in running said car over their route through avenue, to the great danger of the pubhc. That on or about the day of , 19 , while the plaintiff was crossing the track of said rail- road on avenue, between and streets, in the city of , and using due care, through the carelessness and neghgence of the defendant, the said car of the defendant, driven by the servant of the defendant, approached the plaintiff, and before he could escape there- from the plaintiff was run over by said car, the motorman being unable to stop the same by reason of such worn-out, imperfect and disordered condition of the brake of said car, or the apparatus for stopping the same; that the plaintiff was thereby greatly injured, eic."* m. VESSELS 830. Against Owner of Vessel for Collision with Plaintiff's Vessel while Lying at Whaff.^^'' I. That at the times hereinafter named plaintiff was the owner of the [describe character of craft, and give name, as, the hghter "St. Louis"], and the defendant was in possession of [or, the owner and in possession of] the [similarly describe, and name defendants craft]. II. That on or about the day of , 19 , between the hours of and in the noon, "« From Schultz v. Third Ave. R. see The Atlas, 93 U. S. 302; The R. Co., 89 N. Y. 242. Hudson, 15 Fed. Rep. 162. 1'* For the remedy in Admiralty, Actions for Negligence 905 plaintiff's said vessel was lying properly moored to the side of the pier known as Pier, at [or otherwise describe the location of plaintiff's vessel]. III. That defendant's said vessel, which was then on her way up the river, [and being in tow of a tug], in attempting to make fast to the pier known as , ad- jacent to and next below the said Pier, the tide being at [low slack], was so carelessly and negligently managed by those in charge of her that [describe casualty, as thus] her stern swung around and struck violently against plaintiff's said vessel, [crushing in her stern and side, and wrenching and twisting her, wholly disabling her and] damaging her to the amount of dollars, without any fault or negligence on plaintiff's part, or of those in charge of his said vessel. Wherefore [etc., demand of judgment]. 831. The Same, for Injury from Swells of Defendant's Vessel. 1'^ I and II as in preceding form. III. That the defendant's said vessel was then on her way [up the Hudson River]; that the defendant so negligently, carelessly and unskillfully navigated and managed its said vessel that the same approached and passed plaintiff's said boat so close and at such great speed that plaintiff's said boat was forced and driven against said dock with great violence by the suction and swells caused by defendant's said vessel, and thereby was so crushed that she sank [and was wholly lost]. IV. That plaintiff has sustained damage in the sum of dollars. Wherefore [etc., demand of judgment]. 832. Injury Caused by a Vessel in Tow.i^'^ I. That on or about the day of > 19 , I "'Adapted from Bell v. N. J. "? pj-om D^^n v. Stewart, 214 Steamboat Co., 54 App. Div. 526, N. Y. 704, where plaintiff's recovery 66 N. Y. Supp. 1031. was affirmed. 906 Abbott's Forms of Pleading plaintiff was the owner of a certain [motorboat], which was moored at the dock or landing place [describe location, as:] in front of plaintiff's cottage on the bank of the River at ; that on the morning of said day, one of the defendant's boats or barges, which was being navigated in said river, was so carelessly, negligently and improperly handled and managed by the defendant that the same was run upon and against plaintiff's said motorboat, seriously damaging the same [and causing it to sinkj. II. That the damage and injury to plaintiff's said boat were caused solely by defendant's negligence in that he negligently and carelessly permitted and allowed said boat or barge to float down said river and to swing around in the channel thereof and to strike upon and against plaintiff's motorboat, and in that defendant's tug or steamer, to which said boat or barge was attached by a towing line, was care- lessly and negligently managed and operated by defendant so as to cause or permit said boat or barge to strike said motorboat. III. That plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand for judgment]. 833. Collision under Way. I. [Ownership, as in Form 830.] II. That on or about the day of , 19 , as plaintiff's said vessel was navigating the , proceed- ing in a direction, defendant's vessel approached, proceeding in a direction, and that defendant and his servants so negUgently and carelessly managed and navigated his said vessel [here state particulars of bad navigation],^^^ that, without any fault or neghgence on "8 The facts constituting the fault murrer without further stating par- in navigation should be stated. If ticulars of the negligent navigation, several are alleged it is enough to Parker v. Prov. S. S. Co. 17 R. I. 376 prove one. The Hochung, Priv. Co., 22 Atl. Rep. 284; Powell v Cohoes 47 L. T. R. (N. S.) 485. Ry. Co., 136 App. Div. 204, 12Q The above form is good against de~ N. Y. Supp. 336, Actions for Negligence 907 the part of plaintiff, his agents or servants, defendant's vessel was with great violence run against and upon plain- tiff's vessel [stating injury, etc., as in preceding form]. Wherefore [etc., demand of judgment]. 834. For Personal Injury through Destruction of Vessel, Caused by Negligently Loading with Infiammable Cargo. [See Form given in McDonald v. Mallory, 7 Abb. N. C. (N. Y.) 84.] 835. The Same, Allegation of Negligence in Towing Plain- tiff's Vessel. [Complaint sustained in Ross v. Charleston, etc., Co., 42 So. Car. 437.] I. [Ownership as in Form 830.] II. That on or about the day of , 19 , while plaintiff's boat was on her way to , loaded with [vegetables], the defendant caused its said steamboat [name] to approach plaintiff's said boat, and then and there offered to take plaintiff's said boat to , [having at the same time the sloop in tow]. III. That plaintiff accepted the offer made, and in obedience to the directions of the defendant attempted to place his said boat to the stern of the said sloop for the purpose of being towed as aforesaid, but in consequence of the careless, negUgent, improper and unskillful manage- ment of the defendant and its agents in running the said steamboat , plaintiff was prevented from carrying out the directions given, and his said boat was sunk, and, with the vegetables aforesaid, entirely lost. IV. That said loss to plaintiff was caused by the careless, negligent, improper, unskillful, wrongful and unlawful con- duct of defendant and its agents and servants navigating its said steamboat , for the reason that, contrary to proper care, skill and caution, the said defendant, its agents and servants, caused the said steamboat to start off without 908 Abbott's Forms of Pleading having allowed plaintiff sufficient time for carrying out the directions given by the said defendant, its agents and serv- ants, and without having seen, as the said defendant, its agents and servants, should have seen, that the said boat of plaintiff was properly in position and prepared for the said steamboat to start off. That the said defendant, its agents and servants, by reason of their neglect, inattention and improper conduct in prematurely and unexpectedly starting the said steamboat caused the said sloop , attached as aforesaid, to run into and strike with great force and violence the said boat of the plaintiff, thereby damaging and sinking her, loaded with vegetables as aforesaid, the property of the plaintiff, to his loss and damage dollars. Wherefore [etc., demand of judgment], IV. AGAINST MUNICIPAL CORPORATION 836. Against Municipal Corporation; Preliminary Allega- tion of Organization,!^' Duty Imposed by Charter, Notice of Intent to Sue, and Presentation of Claim. I. That the defendant is, and at all the times hereinafter mentioned was, a municipal corporation existing under the laws of this State. That among the duties imposed by law on defendant [or, under the provisions of the charter of the defendant] it w^s its duty to [here state the duty of which a violation is to be charged].^'^'' ■ "' See other forms of allegation of power without expressly imposing a defendant's capacity as a municipal duty, the rule in some jurisdictions is corporation, presentation of claim, that the common law imposes the^ etc., Nos. 54r-58. duty to exercise the power. MiUer v. 1" There need be no allegation of City of Brooklyn, 32 N. Y. 489, 495; specific duty, if the charter is a Fleming v. Mayor, etc., of Manches- public act. ter, 44 L. T. R. (N. S.) 517. And But municipal charters are often after showing the power, no further private acts, and it will be safer, if allegation to show duty is needed, in doubt, to allege the duty under the Logansport v. Wright, 25 Ind. 512. charter.' In jurisdictions where power does Where the statute only confers a not raise an implied duty, further Actions for Negligence 909 [Notice of Intent to Sue;] "^ II. [If against the City of New York "^ and for personal injury, allege:] That notice of plaintiff's intention to sue hereon, and of the time when and place at which the here- inafter alleged injuries were received, was duly filed by plaintiff [by C. D., his father and natural guardian] with the corporation counsel of said defendant, on or about the day of , 19 , and within six months after the cause of action herein accrued, and before the commencement of facts must be alleged. Hill v. Boston, 122 Mass. 344; Carr v. Northern Liberties, 35 Penn. St. 324; Smith v. Tripp (R. I.), 23 Alb. L. J. 436. To merely allege that "it was the duty," etc., is only a conclusion of law unless (where the duty be contractual) the facts raising the duty be also alleged. City of Buffalo v. Holloway, 7 N. Y. 493. If the duty is dependent on the pos- session of means, the question whether the burden of allegation thereof is on plaintiff or defendant, depends on the .terms of the statute. If the duty is imposed, provided, or on condition of having funds, the possession must be alleged by plain- tiff. Shartle v^ MinneapoUs, 17 Minn. 308; Smith v. Wright, 27 Barb. (N. Y.) 621; Eveleigh v. Town of Hounsfield, 34 Hun (N. Y.), 140, statute making it their duty if they have funds. If the duty is imposed unquahfiedly, then even though provision is made for raising means, the want of means is in the nature of a justification or ex- cuse and must be pleaded by defend- ant. Oakleyt). Townof Mamaroneck, 39 Hun (N. Y.), 448, statute making it duty to maintain bridge between two towns. 1" The complaint is demurrable in the absence of this allegation. Krall V. City of N. Y., 44 App. Div. 259, 60 N. Y. Supp. 661; Kennedy v. Mayor, 34 App. Div. 311, 54 N. Y. Supp. 261; White V. Mayor, 15 App. Div. 440, 44 N. Y. Supp. 454. Failure to deny such an allegation prevents defend- ant's challenging the sufficiency of the notice. McHugh v. Mayor, 31 App. Div. 299, 52 N. Y. Supp. 623. The corporation counsel may not waive the statutory requirement. Merwin v. City of Utica, 172 App. Div. 51, 158 N. Y. Supp. 257. See as to the sufficiency of the no- tice, Caseyw. City of N. Y., 217 N. Y. 192. Filing a notice with the corporation counsel of a claim for personal -in- juries, but not stating an intention to sue, is wholly insufficient. Gilbert v. City of N. Y., 173 App. Div. 359, 159 N. Y. Supp. 460. "2 Under c. 572, L. 1886, which now only affects the city of New York. See Doyle v. City of Troy, 138 App. Div. 650, 122 N. Y. Supp. 704, aff'd 202 N. Y. 625. A complaint is demurrable which fails to show compliance with the re- quirement. De Moll V. City of N. Y., 163 App. Div. 676, 148 N. Y. Supp. 966. See, also. Form 837 fot another re- quirement in case of injury to prop- erty. 910 Abbott's FoRmS of Pleading this action, [and that this action was commenced within one year after said cause of action accrued]."' [// against a second class city, adapt under § 344 of Second Class Cities Law; ^^^ if against the City of . Buffalo, adapt under § 341 of its charter.] [If against a town in New York for damages to person or property from defect in highway or bridge, allege:] That a veri- fied statement of the cause of action, as hereinafter set forth, was duly filed with the town clerk of said defendant within six months after the cause of action herein accrued, and that this action was commenced more than fifteen days after the service of such statement.^*'' [If against a village in New York for a personal injury or an injury to property through negligence, allege:] That a writ- ten verified statement of the nature of plaintiff's claim as hereinafter set forth, and of the time and place at which 1*' If the complaint states a com- mon-law action, a statutory provision requiring commencement of the ac- tion within a specified period is us- ually construed as a limitation; it is not necessary, therefore, for plaintiff to allege compliance. Arnold v. Vil- lage of North Tarrytown, 137 App. Div. 68, 122 N. Y. Supp. 92, aff'd 203 N. Y. 536. That this limitation of one year is, practically, a part of the general provisions of the code chapter on limitations, see MoKnight v. City of New York, 186 N. Y. 35. The cause of action accrues upon the hap- pening of the injury, without regard to the fact that plaintiff must serve his notice of claim and wait the stated period for an adjustment be- fore suing. Bernreither v. City of N. Y., 123 App. Div. 291, 107 N. Y. Supp. 1106. If the action is entirely of statutory creation, and it is provided that it must be commenced within a speci- fied period, it has been held that de- fendant need not plead that it was not so commenced. Colell v. Del., Lack. & W. R. Co., 80 App. Div. 342, 80 N. Y. Supp. 675. "* See Doyle v. City of Troy, 138 App. Div. 650, 122 N. Y. Supp. 704, aff'd 202 N. Y. 625; Merwin v. City of Utica, 172 App. Div. 51, 158 N. Y. Supp. 257. i« N. Y. Highway Law, § 74. A complaint is demurrable without this allegation. Dye v. Town of Cherry Creek, 87 Misc. 207, 149 N. Y. Supp. 497, aff'd 167 App. Div. 959. The towns, instead of the commissioners of highways as previously to^ 1881 (L. 1881, chap. 700), are made liable for injuries; the complaint in an ac- tion for damages, arising from neglect to repair, need not allege that "the commissioners had funds or the means of obtaining funds for the purpose of repairing; want of funds is matter of defense. Hayner v. Town of Schaghticoke, 126 App. Div. 498, 110 N. Y. Supp. 714. Actions for Negligence 911 said injury was received, was duly filed with the village clerk on or about the day of , 19 , and within sixty days after the cause of action accrued; that this action was not commenced until the expiration of more than thirty days after such statement was presented, but was commenced within one year after the cause of action accrued."^ [Presentation of Claim:] "' [If the charter, or other statute, requires presentation of claim, allege it as in Form 58.] "^ [7/ plaintiff was incapacitated during the statutory period, allege that fact, and compliance with statutory requirement within a reasonable time thereafter, as in Form 59.] III. [Allege cause of action as in other forms.] 837. Allegation of Service of Notice of Intention to Sue the City of New York, for Injury to Property. [Under N. Y. City Charter, § 261.] "' i« Under N. Y. Village Law, § 341. under the N. Y. Charter, § 261, where This allegation of service of the state- the injury is to property. It is ment is essential. Thrall v. Village required in addition to the other of Cuba, 88 App. Div. 410, 84 N. Y. allegation. Babcock v. Mayor, etc., Supp. 660. of N. Y., 56 Hun (N. Y.), 196, aff'g 24 "' Statutory requirements, of pres- Abb. N. C. 276. The allegation is not entation of claim for adjustment, needed in a federal court if the cause and of giving notice of intention to of action shown could not be prose- vsue, conserve different objects and cuted in a state court, nor does it must both be obeyed. Bernreither v. apply to a suit in equity. Gamewell City of N. Y., 123 App. Div. 291, 107 Fire Alarm Tel. Co. v. Mayor, etc., of N. Y. Supp. 1106. N. Y., 31 Fed. Rep. 312; contra, May Such requirements of presentation v. County of Buchanan, 29 id. 473. of claim exist in New York, with ref- A statute prohibiting an action erence to this species of action, so as against a municipal corporation with- to embrace practically all municipal in thirty days after the writtei; corporations. presentation of the demand to the "' If as is usually the character of comptroller has the effect of enlarging the provision, the charter prohibits ac- the Statute of Limitation by such tion unless after presentation the al- thirty days. Brehm v. Mayor, etc., legation is essential. Reining w. City of N. Y., 39Hun (N. Y.), 533. of Buffalo, 102 N. Y. 308, and cases "' See Paragraph II, of Form 835 cited. for precedent where plaintiff suffers See next form, for an allegation a personal injury, and notes thereto. 912 Abbott's Forms of Pleading That due notice of plaintiff's intention to commence this action, 1^° and of the time when and the place where the aforesaid damages were incurred and sustained, together with a verified statement duly showing in detail the property so as aforesaid damaged and destroyed and the value thereof, was duly filed with the comptroller "^ of the de- fendant within six months after plaintiff's aforesaid cause of action accrued; "^ [that this action was commenced within one year after the cause of action therefor accrued]. 838. Injuries Caused by Defective Sidewalk. ^^^^ [Adapted froni Urquhart v. City of Ogdensbm-g, 23 Him (N. Y.), 75; and Sawyer v. City of Amsterdam, 20 Abb. N. C. (N. Y.) 227.] I. [Allege defendant's corporate capacity, and service of notice and presentation of claim, as in Form 836.] II. That the street known as street, near its This charter section applies to claims for damages for injuries to real or personal property, or its destruction, through negligence or nuisance. (Un- der the above section, as amended byL. 1912, c. 452.) Omission of this allegation renders the complaint demurrable. Watts v. City of New York, 133 App. Div. 400, 117 N. Y. Supp. 612. The notice is a condition precedent to the right of action. Frank v. City of New York, 75 Misc. 472, 133 N. Y. Supp. 434. Similar requirements may exist in the charters of other municipalities, in which event compHance therewith must be alleged. '™ The notice need not state the intention to sue, in direct terms. Weinstein v. City of New York, 156 App. Div. 541, 141 N. Y. Supp. 372. A typewritten notice containing a typewritten signature and without venue is not a compliance with this section. Wesley v. City of New York, 170 App. Div. 888, 154 N. Y. Supp. 461. 1" Service of like notice on the cor- poration counsel wiU not > dispense with this notice to the comptroller. Weinstein v. City of New York, supra. 152 While an admission of the due iiUng of a notice does not preclude the defendant from questioning the sufficiency of the notice (Bannon v. City of New York, 150 App. Div. 314, 134 N. Y. Supp. 1041) the form as above also tenders the issue of the sufficiency of such notice. ^^' The abutting landowner is not liable (in the absence of express statu- tory provision) for failing to main- tain the sidewalk in proper condition. See Eldred v. Keenan, 164 App. Div. 63, 149 N. Y. Supp. 376; Krebs v. Heit]pann, 104 App. Div. 173, 93 N. Y. Supp. 542; Willis v. Parker, i73 App. Div. 552, 159 N. Y. Supp. 676. Actions for Negligence 913 junction with avenue, was at the times hereinafter mentioned a much traveled thoroughfare in said city, and ' the sidewalks thereof were in constant use by citizens of said defendant and others."* III. That at and before the day of , 19 , the defendant, disregarding its duty, negUgently and care- lessly permitted the sidewalk upon said street, near the junction aforesaid, to be improperly and dangerously constructed and maintained, and to be and remain in an imsafe and dangerous condition, in that [describe defect, as, there existed therein an abrupt break or descent of about inches, at the foot of a steep decline or grade, "^] of all of which defendant had due notice,"^ or by reasonable inspection thereof might have had notice. IV. That on or about said day of , 19 , plaintiff, without fault or negligence on his part, but solely owing to defendant's negligence in not constructing and keeping said sidewalk in safe condition, was precipitated into and down said break in said sidewalk. '** The character of the street as a a dsfect, or to allege facts from which much-traveled thoroughfare ought to notice or knowledge can be inferred, be alleged, as it bears with importance Cuthbert v. Appleton, 22 Wise. 642; upon the proper degree of care with Chase v. Cleveland (Ohio), 9 North- which the city is chargeable. Glasier east. Rep. 225; McGinity v. Mayor, V. Town of Hebron, 131 N. Y. 447; 5 Duer (N. Y.), 674; Hume v. Mayor, Chase v. City of Cleveland, 9 North- 47 N. Y. 639; Barnes v. Town of east. Rep. 225, 6 West. Rep. 817. Newton, 46 Iowa, 567; Turner v. '55 Under an allegation of injury Indianapolis, 96 Ind. 51. from stepping off an abrupt break or If by statute a notice of the defect descent in the sidewalk negligently is required to have been given to the suffered to exist, the defect and negU- officers- of the city, compliance must gence alleged being shown, it is com- be shown and alleged. See Sprague petent to show also the condition of v. City of Rochester, 159 N. Y. 20; the place, and that there was ice upon MacMuUen v. City of Middletown, it at the time, on which plaintiff 187 N. Y. 37; Gregorius v. City of sUpped, although the existence of ice Coming, 140 App. Div. 701, 125 was not alleged. Sawyer v. City of N. Y. Supp. 534, aff'd 206 N. Y. 722. Amsterdam, 20 Abb. N. C. (N. Y.) Constructive notice is insufficient if 227. the statute requires "actual no- ^^ It is necessary to allege that the tice." Gregorius v. City of Coming, defendant had notice or knowledge of supra. 9l4 Abbott's Forms of Pleading V. [For allegation of injury, see Forms 973-980.] Wherefore [etc., demand of judgment]. 839. Other Allegations of Defective Sidewalks. "... in that defendant, after notice, permitted the sidewalk on avenue in front of a vacant lot ad- joining No. to become and be dangerous, defective, broken, uneven and irregular, in that the flagging was loose and broken, and in that the earth under the flagging was in an unsafe and dangerous condition, and that on or about the day of , 19 , plaintiff without any fault whatsoever on his part, stepped upon a piece of broken flagging which was lying on said sidewalk afore- mentioned, causing him to fall and to be thrown to the ground and injured.^^' "... in this, that some of the planks thereof were broken, so that deep and large holes were in said walk."* "... that the boards or planks thereof were old and decayed, and were not nailed or in any manner fastened to the timbers across which they were laid."' "... the walk was not firm, and was sprung from the ground."* "... suffered and permitted a board or boards to be and remain loose, broken and rotten, and suffered and per- mitted a hole caused by broken and rotten boards in said sidewalk to remain unrepaired, and negligently suffered and permitted said walk to be built of thin and knotty and un- "' From Yuengling v. City of 635, 8 N. W. Rep. 815; evidence of N. Y., 216 N. Y. 698. defective original construction held ^^ From Bloomington v. Goodrich, admissible thereunder. 88 111. 558. Held, that testimony ™ Thomas v. Brooklyn, 10 Northw. that two planks were removed does Rep. 849 (Iowa). See, also, Briscoe not support the charge. v. City of Mount Vernon, 174 App. "' Luck V. City of Ripon, 3 Wise. Div. 200, 160 N. Y. Supp. 924. Actions fOr NEGLIGE^fcE 915 sound boards, unfit and of insufficient thickness and strength to be used for such purposes, of all of which unsafe and dangerous construction and condition defendant had notice long prior to the time hereinafter mentioned. ^^^ ^ " . . . plaintiff stepped into a hole in the sidewalk; that said hole was several feet in depth, and was in the na- ture of a pitfall, and rendered the sidewalk at said point dangerous and unsafe for pedestrians; that said hole had been in existence for a long time prior to said accident to plaintiff, and had been suffered to remain through defend- ant's negligence; that actual notice of such unsafe and dangerous condition had been given to defendant a reason- able time before the happening of said accident." '^^ 840. Obstruction Placed by Third Person and Negligently Permitted to Remain. ^^^ I and II. [As in Forms 836 and 838.] III. That the T. H. & I. Railroad was [and now is] a rail- road corporation, duly organized under the statutes of this State,. and was, on the day of , 19 , and before and after that time, operating its said road, the track thereof extending through the town of [defendant], and at which point said railroad company maintained a depot and platform, where it loaded and unloaded freight. IV. [On information and belief] That said railroad com- pany did, on or about the ^ day of , 19 , with full knowledge of the defendant town, unlawfully, care- lessly and negligently obstruct a public sidewalk on street, at a point adjoining certain real estate controlled and occupied by said railroad company in said defendant town [state character of obstruction, as:] by causing to be placed '" Nelson v. Village of Oneida, 156 guson, 30 N. E. Rep. 156 (Ind. App.) N. Y. 219. where the complaint was sustained "^ Sprague v. City of Rochester, against demurrer by the defendant 159 N. Y. 20. town. See, also, Forms 849 and "' From Town of Rosedale v. Fer- 851. 916 Abbott's Forms of Pleading thereon a large number of rolls of barbed wire, obstructing and rendering passage over the sidewalk dangerous to travelers passing thereon; that the defendant had notice of the dangerous obstruction of said, sidewalk, which remained thereon, and was left there by said railroad company, with, the knowledge of the defendant, for a period of four days, and the defendant, for said period of time, carelessly and negligently suffered and permitted said obstruction to re- main thereon without attempting to remove it. V. That, without fault or negligence by the plaintiff, and while using due care, the plaintiff, on the day of ,19 , in passing over and along said sidewalk in the dusk of the evening, it being dark, ran against and over said barbed wire, and was violently thrown by said wire to the ground. 841. Injuries Caused by Accumulation of Snow and Ice.^" I. and II. [As in Forms 836 and 838.] III. [As in Form 838.] IV. That on or about the day of , 19 , and for more than days next preceding, defendant carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk on the west side of said street, between and streets, in front of land then occupied by one M. N., so as to become dangerous for persons passing along the same, said ice and snow having been trodden and beaten smooth and slippery, so that chil- dren had made a slide there, which had been there for more' than days previous ^^^ and for all of such time had ^"''' See, also, the various precedents and that a slide had been there " soihe contained under next form. days previous," does not necessarily See, also, Form 844, for injury charge a lapse of more than two days, from icy crosswalk. Id. Adapted from complaint in Chase See Gaffney v. City of New York, V. City of Cleveland, 9 N. E. Rep. 218 N. Y. 225; Williams v. Same, 225, West. Rep. 817 (Ohio). 214 id. 259, and Crawford v. City "5An allegation that the accumula- of N. Y., 68 App. Div. 107, 74 N. tion had existed "a number of days," Y. Supp. 261, aff'd 174 N. Y. 518, Actions for Negligence 917 constituted an unusual and dangerous obstruction to travel upon said sidewalk; of all which defendant had knowledge or might have informed itself in time enough to have made said sidewalk safe before the occurrence of the accident hereinafter mentioned. V. That oh or about said day of , 19 , as plaintiff was passing along said sidewalk, using all due- care, she fell and was injured, etc., which accident and damages were caused wholly by defendant's negligence as aforesaid. [//, by statute, previous notice of defect is required allege it.] "^ 842. Other Allegations of Injuries Caused by Ice and' Snow Accumulation. "... a dangerous hole or depression existed in the sidewalk, . . . into which hole or depression water and snow were allowed to accumulate and form into ice, render- ing travel thereon unsafe and dangerous. ^^ "In that defendant allowed a portion of the said sidewalk to sink and cave in, and to form a hollow in said sidewalk about fom- inches in depth, six feet in breadth and four feet in length . . .- and negligently suffered water to collect in said hollow and ice to form therein." ^^^ "... That said walk was laid on a grade from the for a general discussion of the lia- to have been given the commissioner bility of a municipality for such an of public works, for injuries caused injury; also, see, Ballard v. Village by ice and snow. But such section of Hamburg, 143 App. Div. 719, 128 does not apply to a dangerous condi- N. Y. Supp. 325. , tion negligently created by the city. Greater particularity is required in Menton v. City of Syracuse, 172 these cases in the notices served. App. Div. 39, 158 N. Y. Supp. 470; See Kroin v. City of New York, 177 nor to the creation of a nuisance. App. Div. 738, 164 N. Y. Supp. 675. McCarthy v. City of Fulton, 175 i«» See McMuUen v. City of Middle- App. Div. 293, 161 N. Y. Supp. 1004. town, 187 N. Y. 37, sustaining va- '" From Woolsey v: Trustees of lidity of statute requiring previous Ellenville, 69 Hun, 489, 23 N. Y. notice of the existence of the snow Supp. 410. or ice. See note 156, supra. •»* From Krebs v. Heitmann, 104 Under §244 of the Second Class App. Div. 173, 93 N. Y. Supp. Cities Law written notice is required 542. 918 Abbott's Forms of Pleading street line to the curb line of [one inch to the foot] ; that the walk was icy, slanting, uneven, with hills or hummocks of ice or frozen snow two inches or more in height; that the ice and frozen snow on said walk was at least [three or four inches thick]. That such condition of said walk had ex- isted [during the entire winter] and said snow and ice had a,ccumulated more than [ten] days prior to the day of , 19 .i«' 843. For Unsafe Condition of Sidewalk, Caused by Act or Omission of Abutting Owner; Defective Leader Pipe.^'" I and II. [As in Forms 836 and 838.] III. That for more than [a year] prior to the day of , 19 , defendant had negUgently permitted a [broken] leader or gutter pipe upon- the premises known as No. Street to discharge water upon and across the sidewalk on said street in front of said premises; that water was so discharged on the occasion of each rain or thaw, and said water during the winter months froze upon said sidewalk, and made the same dangerous and unfit for passage. IV. That on said day plaintiff while exercising due care slipped upon the ice which so formed on said sidewalk, and fell [state resulting injuries as in Forms 973-980]. [Notice to municipality when required.] "^ 844. Injuries Caused by Bad Condition of Crosswalk.i^^ [From complaint in Dickinson v. Mayor, etc., of N. Y., 92 N. Y. 584; aff'g. 28 Hun, 254.] I and II. [As in Form 836.] "'From Klaus v. City of Buffalo, City of N. Y., 80 App. Div. 585, 80 86 App. Div. 221, 83 N. Y. Supp. N. Y. Supp. 1022. 620. "1 See note on this point to Form "" In Duffy V. City of N. Y., 128 841. App. Div. 837, 113 N. Y. Supp. 118, i" See Dupont v. Village of Port this was held to show a nuisance, Chester, 204 N. Y. 351, as to the which the city should have abated, obligation of a municipality with and that it was liable to plaintiffs regard to icy street crossings, for the injury; see, also, Wittman v. See next form for other precedents for defective condition of crosswalk. Actions fok Negligence 919 III. That [Eighth Avenue], in the city of [New York], is a public and much traveled thoroughfare,"* and that it was and is the duty of the defendant to keep and maintain the streets and avenues of said city, including the said [Eighth Avenue], in good order and repair, and not to suffer ice or snow to be or remain in such a rough and uneven condition on the crosswalks thereof as to be unsafe and dangerous to foot passengers. IV. That the defendant improperly, carelessly, negli- gently and unlawfully suffered ice or snow to be and remain for a period of more than days, upon the crosswalk, on the east side of [Eighth Avenue], at the intersection of [Eighteenth Street], in the city of [New York], in such a rough and uneven condition that a person could not walk over it without danger of falling down, of all of which the defendant had notice. V. That by reason of the aforesaid negligence of defendant, the plaintiff, on or about the day of , 19 , while lawfully passing over and upon said crosswalk, and without any fault on her part, was suddenly precipitated, cast and thrown upon the ground. , VI. [Allege injury as in Forms 973-980.] VII. [Allege service of notice of defective condition when required.] "* Whebefoke [etc., demand of -judgment]. 845. Other Allegations of Defect in Crosswalk. Defective Construction "^ That the crosswalk in question was at one of the principal and most frequently traveled intersections of the city; that it was constructed of stone and brick and that some of the "' Glasier v. Town of Hebron, 131 plaint was sustained against de- N Y. 447. murrer, as showing facts sufficient to "* See note on this point to Form raise a reasonable, though not a 841. necessary inference of negligence, "'From Auroras, Cox (Nebraska), in not providing a reasonably safe 62 N. W, Bep. 66, wjiere the com- walk. 920 Abbott's Foems of Pleading stones were left projecting to the height of two inches above the general level. Bad Repair i™ That it [defendant] neglected to keep and maintain said ' crosswalk in good repair, and negligently suffered it and the planks of which it was composed, to become rotten and dangerous to persons passing along it, by reason of which while plaintiff was traveling over it, on the day of ,19 , a portion thereof gave way and plaintiff was thereby thrown to the ground, etc. From Presence of Ice and Snow That the snow and ice had been allowed to accumulate and remain on said cross-walk to a depth of five or six inches, and to become hard packed and rough from being tramped down by the use of the, cross-walk and the use of the street; that a few hours before plaintiff suffered his injury, as here- inafter set forth, defendant's employees chopped and loosened the ice and hard snow from said crosswalk and negligently left the sarne in great quantities thereon, covering said crosswalk, and thereby negligently creating an unsafe and dangerous condition, and without guard or notice."^ 846. Injury from Defective Condition of Highway. [Sustained in Clark v. Town of Copake, 142 App. Div. 202, 126 N. Y. Supp. 982.] "' "" From Sheridan v. City of Salem "' The court held that it was error (Oreg.), 12 Pac. Rep. 925. to dismiss the complaint at the '" From Minton v. City of Syra- opening of the trial; it was considered cuse, 172 App. Div. 39, 158 N. Y. that while under the statute (High- Supp. 470, where it was held error way Law, § 74), a town is only liable to dismiss the complaint. It was for the negligence of the town super- also held that § 244 of the New York intendent of highways, such negli- Second Class Cities Law, requiring gence was sufficiently alleged, written notice of defective condition For the character of the liability caused by ice or snow, did not apply, of a town for defective highways, see since the city had itself created the Lynch v. Town of Rhinebeck, 210 dangerous condition. N. Y. 101; Snowden v. Town of Actions for Negligence 921 I and II. [Allege defendant's corporate capacity, service of notice of intention to sue; and presentation of claim, as in Forms 58 and 836.] III. That on or about the day of , 19 , the plaintiff was being driven in a wagon along the public highway [describe briefly, as] leading westerly from Copake Iron Works Station past the Catholic Church to , in said town; that said highway between said points was within the limits and jurisdiction of said defendant Town; "^ that while so being driven upon said highway, and without the fault or negligence of the plaintiff, and by reason of the narrowness and defective condition and construction of said highway, ^^° [state its general character as: in that there was an unguarded hole, depression or washout which extended into the beaten and ordinary traveled part of the roadway, ^^^ and by reason of the negligence of the defendant in not re- pairing the same, the wagon in which the plaintiff was being driven as aforesaid was overturned and upset, and this plain- tiff thrown with great violence to the ground; that said injuries were caused by the negligence, and carelessness of the said defendant. IV. [Allege injuries as in Forms 973-980.] V. [Allege service of notice of defect when required by stat- ute.] '^' Wherefoee [etc., demand of judgment]. Somerset, 171 id. 99; Booth v. Town negligence); the general character of Orleans, 147 App. Div. 240, 131 of the defect should be specified. N. Y. Supp. 1088. Yet as against an objection made "^ A complaint is insufficient which at the trial, the complaint is un- fails to allege that the highway was doubtedly sufficient, within the jurisdiction of the town. i^' Not in precedent, but neces- Scott V. Town of North Salem, 138 sary to avoid attack on the com- App. Div. 25, 122 N. Y. Supp. 497. plaint. See preceding note. Of i^Such a general allegation of course the allegation of negligent negligence does not seem to be suf- condition must be proved as charged, ficient against a motion, or even a Collins v. Town of Watervliet, 130 demurrer (see cases cited at be- App. Div. 291, 114 N. Y. Supp. 346. ginning of this chapter on alleging "2 gee note to Form 841. 922 Abbott's Forms of Pleading 847. Failure to Guard Excavation Made by It.^^^ I and II. [As in Form 836.] III. That at and before the day of , 19 , solely through the negligence of the defendant, a certain public improvement then being made by it [state what, as:] to wit [the construction of a sewer on street from street to street] was, at a point near street, permitted and suffered to be improperly, neghgently and dangerously constructed and maintained, so that a deep and dangerous excavation at said point in said street was negligently suffered and permitted to remain in an open, unsafe and unguarded and dangerous condition, and that said excavation or opening was on the afternoon of said day open, exposed, imguarded, and without proper or any protection to prevent persons falling into said excavation, of all of which defendant had notice. IV. That without fault on plaiintiff's part, and solely owing to the aforesaid negligence of the defendant, while plaintiff was passing over and along said street, he was sud- denly precipitated into and down said excavation or opening in said street. V. [Allege resulting injuries; see Forms 973-980.] Wherefoee [etc., demand for judgment]. 848. Omission to Properly Guard Street Excavation during Darkness. [From Sherman v. Village of Oneonta, 21 N. Y. Supp. 137, 49 State Rep. 267.] I and II. [Allege defendants corporate capacity and pres- entation of claim, as in Form 836.] III. [As in Farm 838.] IV. That on or about the day of , 19 , a deep and dangerous excavation was dug in said street, at [describe locality] by and under the direction of defendant, ^^^ 183 Adapted from Johnson v. City '^^ Under such an allegation pla^n- of N. Y., 208 N. Y. 77, where no tiff is entitled to show: (a) Either a question on the pleadings was directly dangerous obstruction created by raised. the city, and left unguarded; or (b), Actions for Negligence 923 and negligently suffered by defendant, during the night on or about said date, to remain open, exposed, and without barriers, and without proper or any protection by means of light, or signal or otherwise, to apprise passers-by of its existence. V. That plaintiff on the night aforesaid while driving upon said street at said place, without fault or negligence on his part, and by reason of defendant's said negligence, was precipitated into said excavation. VI. [Allege injury, as in Forms 973-980.] Wherefore [etc., demand of judgment]. 849. For Permitting Obstruction in Street. ^^^ I and II. [As in Form 836.] III. [As in Form 838.] TV. That defendantneghgently and unlawfully permitted, suffered and allowed the carriage-way or roadway of said street at or near street to remain and be in a dangerous condition for public travel, and negligently and unlawfully permitted, suffered and allowed a large pile of stones and debris to be placed and to remain in the said roadway, greatly decreasing the width thereof and prevent- ing the, free, safe and unobstructed use of a large portion thereof. V. That while plaintiff was traveling in a [carriage] along and upon said street [in the nighttime] on the day of > 19 , at said place on said street, and without any fault or negligence on plaintiff's part, and an obstruction created by some third See, for other cases of similar person, and left imguarded by the causes of injury to plaintiff: Blakeslee city after notice of its existence, v. City of Geneva, 61 App. Div. 42, Pettingil v. City of Yonkers, 116 69 N. Y. Supp. 1122; Snowden v. N. Y. 558. Town of Somerset, 171 N. Y. 99. It is not necessary that the city be ^'^ From Godfrey v. City of N. Y>, charged with notice of the dangerous 104 App. Div. 357, 93 N. Y. Supp. condition of the street when it is 899, aff'd 185 N. Y. 563, where a alleged that it caused the excavar judgment' for plaintiff was upheld; tion. Brusso v. City of Buffalo, 90 see, also. Forms 840 and 851, for N. Y. 679, and cases cited. other precedents. 924 Abbott's Forms of Pleading without any knowledge or notice from defendant of the existence of said obstruction, and the said obstruction being wholly unguarded [and no sufficient lights displayed thereon to give warning of its presence], plaintiff was thrown from his said [carriage]. VI. On information and behef, that defendant for a long time prior to said day had knowledge and notice of said ob- struction, and of the unsafe and dangerous condition thereby caused upon said street. ^^^ VII. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 851. Another Allegation of Obstruction or Defect in Street, [From Dougherty v. Village of Horseheads, 73 Hun, 443, 26 N. Y. Supp. 642.] I and II. [As in Form 836.] III. That on or about the day of , 19 , plaintiff was driving in a cutter along street in said village; that while so passing upon said street said cutter struck and was driven, without the fault or negligence of plaintiff, against and upon a large stone or rock within said street, and was thereby overturned; that said large stone or rock was an illegal obstruction in said highway, and was dangerous, and was liable, if not certain, to cause injury to persons passing upon said highway in vehicles which strike against or pass upon it; that the defendant village well knew before the said accident and injury to plaiibtiff, that such rock was within said street, and was an illegal and dangerous obstruction thereto, and plaintiff's said injuries were caused by the negligence, inattention and carelessness of said village and its officials charged with the duty of caring for said '*' Held, that where the city has been placed in the highway without given permission to place an ob- authority, it must be alleged and struction in the street, notice, either appear that the municipality had actual or constructive, of its subse- notice, express or implied. Thomas quent presence is unnecessary. v. City of N. Y., 146 App. Div. 512, But where the obstruction has 131 N. Y. Supp. 697. Actions for Negligence 925 street, and their failure to fulfill and perform their duties and obUgations. 852. Against Mtinicipality and its Licensee, for Defect in Highway. ^^^ I and II. [As in Form 8S6.] III. That prior to the day of , 19 , defendant [city] negUgently and carelessly permitted [state act causing defective condition, asi\ the sidewalk upon the side of street between and streets to be removed, and a deep and dangerous excavation to be dug immediately therexmder, and knowingly, negli- gently and carelessly permitted, imder its direction, ^^^ the construction in place of said sidewalk so removed an unsafe, weak and improper temporary sidewalk, improperly con- structed of improper and unsound material of insufficient strength for the ordinary use of said sidewalk, and allowed the same to be placed immediately over said excavation; and defendant failed in any way to warn and notify users thereof of the dangerous condition of said temporary side- walk. IV. That prior to said day, said defendant \licensee] negli- gently and carelessly removed said sidewalk, and dug said excavation thereunder, and negUgently and carelessly con- structed and built immediately over said excavation, a faulty and unsafe temporary sidewalk or bridge, imperfectly con- structed of weak and defective materials and timbers of in- sufficient strength for travelers thereon, and negligently suffered the same to remain in such unsafe and faulty con- dition. V. That on said day, while plaintiff was passing over said temporary sidewalk or bridge, and without any negligence or fault on his part, the same collapsed and plaintiff was thereby precipitated into said excavation. 187 From Parks v. City of N. Y., on the facts alleged, that both city 111 App. Div. 836, 98 N. Y. Supp. and licensee were liable. 94, aff'd 187 N. Y. 555. It was held, »«» See note 184 to Form 848. 926 Abbott's Forms of Pleading VI. [Allege resulting injuries; see Forms 973-980.] Wherefore [etc., demand for judgment]. 853. Against Municipality, the Abutting Owner, the Contractor, and Sub-Contractor, for Defect in High- way. ^^^ I. [Allege capacity of defendant municipality, and its duty to keep streets in safe condition, as in Form 836; also, notice of claim, and notice of intention to sue, as in Form 836.] II. That the defendants [naming the owner causing the ex- cavation, the contractor and the sub-contractor] were, on or about the day of , 19 , and for some time prior thereto had been, engaged in [describe character of woj-k, as:] the construction of a trench in the highway in front of the premises of the defendant [owner] at , in said [city of ]. That for the purpose of such construction said defendants had for some weeks prior to said day [state obstruction caused, as:] deposited large quantities of dirt and other materials in said highway, and had so negligently piled the same in said highway as to cause a dangerous obstruction therein and to render travel on said highway at said point dangerous and difficult unless said obstruction was properly guarded and lighted. III. That defendants neghgently and carelessly omitted and neglected, on the night of said day of , 19 , to provide any means for lighting said highway at the place of said obstruction, or to guard the same by bar- riers, or to take any methods or means whatever to warn persons passing along said highway of the defective and dangerous condition thereof, as aforesaid. IV. [Allege resulting injury to plaintiff as in Forms 973- 980.] Wherefore [etc., demand for judgment]. 189 From complaint in Deming v. 493, 63 N. Y. Supp. 615, afE'd 169 Terminal Railway Co., 49 App. Div. N. Y. 1, Actions for Negligence 927 854. Allegation of Licensing Use upon Street of Apparatus Calculated to Frighten Horses. [Action sustained in Halstead v. Village of Warsaw, 43 App. Div. 39, 59 N. Y. Supp. 518.] i^" I and II. [As in Form 836.] ; III. [As in Form 838.] ' IV. That prior to the time hereinafter mentioned, de- fendants negligently and carelessly licensed, and knowingly permitted the use upon said street, of [state character, as:] "^ an apparatus for making candy, consisting of a tripod sup- porting a vessel containing sjrrup, which was boiled into candy by means of a fire placed thereunder; that such ap- paratus was, by its appearance in the course of its ordinary use, calculated to frighten horses of ordinary gentleness, and to render them unmanageable and dangerous. V. That on the day of , 19 , while plaintiff was lawfully driving upon said street,, and in the use of due care on his part, his horse took fright at said apparatus and became wholly unmanageable, whereby plaintiff was thrown out of his carriage. VI. [Allege injury and damage as in Forms 973-980.] Wherefore [etc., demand of judgment]. 855. For Collapse of Bridge. ^^^ I. [Allege defendant's capacity as a municipal corporation, notice of claim, and notice of intent to sue, as in Form 836.] '™ See, also, Eggleston v. Columbia defendant left a large log upon the Turnpike Road, 82 N. Y. 278; Bloor roadside "which was a frightful V. Town of Delafield, 69 Wise. 273. object and well calculated to frighten '" In Halstead v. Village of War- horses." saw, supra, the allegation was that In Frank v. Village of Warsaw, 198 the defendant "operated a certain N. Y. 463, the defendant was held steam roller, on said street, and care- liable for permitting a steam peanut lessly and negligently left said roller roaster to be operated upon the in and upon said street during the highway, and which exploded and nighttime." injured plaintiff. In White v. Town of Cazenovia, ^'^ From complaint in Spencer v. 77 App. Div. 547, 78 N. Y. Supp. Town of Sardinia, 42 App. Div. 472, 985, the plaintiff charged that the 73 N. Y. Supp. 620, where a recovery 928 Abbott's Forms of Pleading II. That ane of the duties devolving upon defendant is to keep and maintain the highways and bridges within its corporate hmits in a safe and suitable condition for travel thereon by the public. III. That for more than years a public highway has existed in said defendant [town] known as the " Road," and has been used and traveled by the pubUc, which said highway extends from [etc.]. IV. [AUege character of bridge, as:] That defendant prior to the year 19 constructed in said highway, near the residence of one M. N., a small wooden bridge, spanning a narrow stream or sluiceway which crosses said highway at said point. V. On information and belief, that the stringers or bed pieces upon which the planks of said bridge rested were from green trees, and were not protected from water or the weather, and were exposed, and soon became decayed and weak, thereby rendering said bridge defective and dangerous; that said bridge, by reason of defendant's failure to properly examine and repair the same, was on the day of ,19 , in an unsafe condition for public use, and that the [highway commissioner] of the defendant had been notified long prior to said date and had knowledge of the dangerous condition thereof. VI. That on the day of , 19 , while plaintiff was lawfully passing along said highway in a ve- hicle, and was wholly ignorant of its said defective and misafe condition, ^"^ he went upon said bridge, and the same, by reason of its said unsound, unsafe and decayed condition, broke down, whereby plaintiff's vehicle was overtiu-ned [etc.]. VII. [Allege resulting injuries, as in Forms 973-980.] Wherefore [etc., demand for judgment]. for plaintiff was upheld. See, also, defeat the plaintiff's recovery. John- Boyoe v. Town of Shawanguck, 40 son v. Town of Denning, 106 App. App. Div. 593, 58 N. Y. Supp. 26. Div. 343, 94 N. Y. Supp. 532. See, ^ 193 Of course such knowledge would also, note 195 to Form 856. Actions for Negligence 929 856. For FaUure to Guard Bridge During Repairs. i^* [Complaint sustained in Hawxhurst v. Mayor, etc., of, N. Y., 15 Abb. N. C. (N. Y.) 181.] I and II. [As in Form 836.] III. That the defendants are, jointly with the county of Westchester, charged and chargeable with the duty of main- taining, rebuilding, repairing and caring for a certain pubUc bridge, known as WilUams Bridge, across the river Bronx, which in part forms one of the boundaries of said city of New York, and of keeping the said bridge and the public approaches thereto in a good and safe condition. IV. That in the latter part of the year 19 , the defend- ants, in discharge of the aforesaid duty, jointly with said county of Westchester, caused said bridge to be repaired and rebuilt, and in so doing caused the flooring and timbers of said bridge to be removed, and the said bridge and its ap- proaches otherwise made unsafe and imfit for passage, and were then and there charged and chargeable with the duty of erecting and maintaining in the said pubhc street, road and highway, at the said approaches to said bridge, suitable and sufficient barricades, lights, etc., so that persons lawfully passing over said pubUc street, road and highway, in the nighttime, might be warned of the xmsafe condition of the bridge and its approaches. V. That the defendants, jointly with said other parties, wholly failed in the said last-mentioned duty, and on or about , negligently and carelessly suffered and al- lowed the said bridge and the easterly approach thereto, to be and remain wholly open and improtected and without any barricade, light, etc., for the warning or protection of travelers, as aforesaid. That the plaintiff, on said day, in the nighttime thereof, was lawfully passing along said pubUc "* A county in New York, in the duty to maintain. Markey v. County absence of statute so providing, can- of Queens, 154 N. Y. 675; contra, in not be held liable for personal in- Indiana: Board v. Montgomery, 109 juries resulting from a defective Ind. 69, 9 N. E. Rep. 590. bridge, which it was the county's 930 Abbott's Forms of Pleading street, road or highway, into the city of New York, from the county of Westchester, in entire ignorance that said bridge or its approaches were in any other than a perfectly safe condition, and open and suitable and safe for. travel, ^^* and by reason of the said negligence of the defendants, the plaintiff, without any fault or negUgence on bis part what- soever, fell, etc. VI. [Alkge injury as in Forms 973-980.] Whekefoke {etc., demand of judgment]. 857. Allegations of Negligence in Construction, Acceptance and Repair of Bridge. ^^* I and II. [As in Form 836.] III. That on or about the day of , 19 , there was a bridge within the limits of the defendant, over the river, which had prior thereto been constructed by said [town], and which it was bound to maintain; ^'^ that defendant had negligently constructed said bridge by placing therein weak, knotty and defective timbers, leaving it in an unsafe condition, and that it had negligently accepted said bridge, from the contractor who built the same, in an unsafe condition for passengers, by reason of the weak, knotty and defective pine timbers placed therein, while the contract and specifications for said bridge provided that the same should be constructed in a good, substantial, workmanUke manner, of poplar timber [or, that it had negligently failed to provide a rail or barrier on the side of said bridge to pro- tect against driving off therefrom];"^ that defendant had 195 In Riest v. Goshen, 42 Ind. 339, "' A village will not be liable for wKere plaintiff sought to recover for the defective condition of a bridge injuries to his horses caused by de- built by the town prior to the in- fects in a bridge, the complaint was corporation of the village, unless the held bad on demurrer, for faihng to latter has assumed to repair or con- allege his due care in driving, and trol it. See Taylor v. Village of his ignorance of the defective condi- Matteawan, 122 App. Div. 406, tion of the bridge. 106 N. Y. Supp. 841. ™ Complaint sustained in Board ^^ Pelkey v. Town of Saranac, 67 of, etc., of Vermillion County v. App. Div. 337, 73 N. Y. Supp. 493; Chipps (Ind.), 29 N, E. Rep. 1066. Farrell v. Town of North Elba, Actions fob Negligence 931 negligently suffered said bridge to remain in such unsafe condition, and to become out of repair, so that on the said day of ) 19 , the joists and other timbers upon which the floor of said bridge was laid were defective, weak, brittle, .knotty, old, decayed and rotten, '^^ [or, the guard rail on the side thereof had rotted and fallen off and said side was wholly without guard] ^"^ so that it was dan- gerous for persons to pass over the same in the ordinary use of said highway, of which the county had notice. IV. That on said day the plaintiff, not knowing the de- fective, decayed and dangerous condition of the bridge, but having reason to believe it was in good repair and in safe condition,^"^ attempted to drive over the same, and by reason of the defective, decayed and dangerous condition of the bridge caused by the failure and neglect of the defendant to properly construct and keep the same in repair, ^"^ and without any fault on the part of the plaintiff, the bridge gave way and precipitated the plaintiff into the stream below, a distance of feet. V. [Allege resulting injuries as in Forms 973-980.] Wherefore [etc., demand of judgmsnt]. 858. Allegation of Neglect to Repair Sewer Built by Defendant-^o^ I and II. [As in Form 836.] III. That said defendant, prior to the times hereinafter 112 App. Div. 144, 97 N. Y. Supp. complaint is unquestionable, the 1110. court will consider of no consequence "' Servoss v. City of Amsterdam, an omission to expressly allege that 64 Misc. 667, 120 N. Y. Supp. 280. the fall of the bridge was caused by ^ Williams v. Village of Port the defective condition or by the Leyden, 62 App. Div. 490, 70 N. Y. negligence of the defendant or its Supp. 100. officers. Taylor v. Town of Con- 2»i See notes to Forms 855 and 856, stable, 15 N. Y. Supp. 796. on this point. 203 prom Talcott v. City of N. Y., ^''^ This allegation sufficiently shows 58 App. Div. 514, 69 N. Y. Supp. that the defects were the proximate 360; Gravey u.Same, 117 App. Div. cause of the injury. Kelly v. Darling- 773, 102 N. Y. Supp. 1010; Derragon ton, 86 Wise. 432, 57 N. W. Rep. v. Village of Rutland (Vt,). 2 N. E. 51. But where the meaning of the Rep. 197. 932 Abbott's Forms of Pleading mentioned, built and constructed a certain drain and sewer within its incorporated limits, to wit, along street and near the dwelling-house known as number street wherein plaintiff resided, and caused to flow therein all the sewage from that locality; that by reason thereof it then became and was the duty of the said defendant to keep said sewer in good and sufficient repair, and to prevent the same from becoming obstructed,^"* but that the defendant neglected and omitted to keep said sewer in good and suffi- cient repair and to prevent the same from becoming clogged and obstructed; and that by reason of said defendant's negli- gence in that respect and on or about the day of , 19 , the said sewer burst and broke open [or, be- came clogged] and discharged the said sewage which said defendant had caused to flow therein, in and upon and near the said dwelling-house and lands of the plaintiff, and saturated said lands and premises and the air around about the same. S59. Negligence in Omitting to Clean Public Well. [See form in Danaher v. City of Brooklyn, 4 N. Y. Civ. Pro. R. 286.] 860. To Recover Damages to Fruit-trees, Done by Negli- gence of Public Servants. [See form in Carman v. Mayor, etc., of N. Y., 14 Abb. Pr. (N. Y.) 301.] 861. Against Two Municipalities, for Negligence of Work- man on Connecting Bridge. [Sustained by Walsh v. Mayor, etc., of N. Y., and the City of Brooklyn, 107 N. Y. 222.] ^os 2°^ The municipality is not an ^"^ A previous action had been insurer of its system, but is only brought against the trustees of the liable for failure to use reasonable Brooklyn bridge, but dismissed on care in its maintenance. See Simon the ground that the action would not V. City of N. Y., 82 Misc. 454, 143 lie against them. Walsh v. Trus- N, Y. Supp. 1097, tees, etc., 96 N. Y. 427. Actions foe Negligence 933 I. That each of the defendants now is, and at all times hereinafter mentioned was, a municipal corporation duly- incorporated under the laws of this State for the municipal government of the cities of New York and Brooklyn re- spectively, in this State, II. That on or about the day of , 19 , said defendants were engaged in the construction of a work known as the New York and Brooklyn bridge, through their agents and officers who were known as the trustees of the said New York and Brooklyn bridge, which said bridge was intended to and did span the waters of the East river, and connect the two cities aforesaid. III. That said defendants, acting through the said trustees as their agents, as aforesaid, employed a certain laborer to labor for them in the construction of the said bridge, and while said laborer was so doing, and acting within the scope of his employment for said defendants, he carelessly and negUgently let fall from the said bridge a heavy plank of wood which, being allowed to fall, as aforesaid, struck the plaintiff upon the foot as he was passing over street, a public highway in the city of , beneath said bridge. IV. [Allege injury as in Forms 97S-980.] Wherefore [etc., demand of judgment]. 862. Injuries to Child from Dangerous Playground of School. [Sustained in Katz v. City of New York, 162 App. Div. 132, 147 N. Y. Supp. 327.] ^"^ I and II. [As in Form 836.] III. That the plaintiff, at the time hereinafter mentioned, was a scholar in one of the public schools of the defendant, ™ The action was begun against tlie Board. See Form 56 as to the both the City of New York and the corporate capacity of the board of Board of Education, but discontinued education of the City of New York, against the city, and held maintain- See, also, Miller v. McCloskey, able on the above allegations against 9 Abb. New Cases (N. Y.), 303. 934 Abbott's Foems of Pleading and was directed and required by the authorities and teachers in said school to engage in certain games and exercises con- ducted in a certain playground maintained by defendant as a part of said school. IV. That on or about the day of , 19 , while plaintiff was so engaged in said playground, he was caused to fall, because of the defective, worn and dilapidated condition of the flooring of said playground, and the de- fective construction of the same. V. That the defendant maintained the said school, and the playground and flooring thereof, aforesaid, as a pubUc school, and there received and instructed many pupils, of which plaintiff was one, for a long time after the same was, and was well known ta defendant to be, in an unsafe and dangerous condition, and it was in such condition at the time of the plaintiff's said injury. VI. [Allege resulting injury as in Forms 973-980.] Whekefore [etc., demand of judgment]. 863. For Wrongful Treatment of Invalid.^" [Complaint sustained in Tormey v. Mayor, etc., of N. Y., 12 Hun (N. Y.), 542.] I. That the defendants were at the times hereinafter men- tioned and are a municipal corporation, and that there was and is a department in said corporation, created by the charter, and known as the "Health Department" or "Board of Health" of said city, which said board was authorized to adopt, and had adopted, certain sanitary ordinances or "Sanitary Code," and were also authorized to add additional provisions thereto. ™ See Goodman v. Brooklyn He- choice of incompetent, unskillful and brew Orphan Asylum, 178 App. Div. careless servants. 682, for a review of the authorities It may be doubtful whether the on the question when dispensers of precedent here given can be sus- public charity may be held liable for tained without allegation and proof negligent injuries, and holding that of the incompetency of defendant's such an institution is not protected employees concerned. It does not from Uabihty for negligence in the appear, however, to have been ex- pressly criticized or overruled. Actions for Negligence 935 II. That by reason of the premises the defendants, as a municipal corporation as aforesaid, received and derived, and still receive and derive, a personal and pecuniary benefit from the existence and acts of the said health department or board of health. III. That the said defendants were authorized by law, through their said health department or board of health, to adopt measures to prevent the spread of a contagious and malignant disease known as "smallpox," and to remove persons affected by such disease, and were required to pro- cure suitable places for the, reception of persons sick of such disease, and to properly provide for them therein in case they should remove them thereto. IV. That on or about the day of , 19 , plaintiff was at her residence in street, in the city of New York, and was then sick of a disease which, although it required her to be kept from exposure, was of a simple natm-e, and was not dangerous to life or health; that on said day the defendants, through their said department or board of health, falsely claiming that plaintiff was sick with small- pox, took her from her house and family, and placed her in a wagon used for the transportation of smallpox patients, and wholly unfit and improper for the conveyance of any sick or other person, and removed her to Bellevue Hospital; that this was done without any report having been made to them by any physician or other reputable person that plain- tiff was afflicted with smallpox, and without any medical or other examination made by them to ascertain whether such was the fact, and without reasonable cause or the exercise of that precaution and investigation which the de- fendants were bound to exercise in such matters; but said servants and agents of the defendants, although expressly requested thereto, wholly failed and neglected to cause any such medical examination to be made, and refused to allow the husband of plaintiff to send for a physician to make the same, but persisted in removing this plaintiff to said hospital at once, and in spite of all objections made by plaintiff and 936 Abbott's Forms of Pleading her said husband; and plaintiff alleges that the defendants, through their agents, were guilty of gross carelessness and negligence in the matter. V. That upon the arrival of plaintiff at said hospital she was left in an open shed fronting upon the river, and which was a wholly unfit and dangerous place for her to remain in, and was, through the carelessness and negUgence of the de- fendants' agents and employees, obliged to remain therein, and in the company of persons actually sick of smallpox, for a long time, to wit, for the space of about one hour. VI. That after plaintiff had remained at said hospital as aforesaid, she was examined by a number of physicians be- longing thereto, and who were employed by said defendants to examine the patients therein, who all then and there stated that she was sick, not with smallpox, but with measles, and that her removal from her house was wholly without justi- fication; yet that these same physicians and the other agents and employees of the defendants having charge of said hos- pital, alleging that they had no power in the premises, under the regulations of the defendants' board of health, to rescind the previous irregular action of said officials, but were bound to abide thereby, refused to permit said plaintiff to be taken back by her said husband to her residence — as both she and her husband desired should be done — but sent her, against her will and that of her husband, to another hospital at Blackwell's Island, and that by negligence and carelessness of the defendants' employees having charge of her removal she was compelled, although in a sick and enfeebled condition, to walk a long distance through wet grass, and at a late hour at night, so that at the time of her arrival at such hospital her clothing was soaked with water, all of which exposure was wholly unnecessary, and arose from, and was a violation of, the duty which said defendants owed to this plaintiff, and was extremely dangerous and injurious to the plaintiff. VII. That the plaintiff was kept in said hospital upon said island for a long time, to wit, for the space of seven days, against her will and without any cause whatever. Actions for Negligence 937 That during that period she was deprived of the society of her family and friends, and was treated with great careless- ness and brutality upon the part of the employees of said defendants having charge of said hospital, being deprived of the medicine and attendance required by her in her en- feebled condition, compelled to closely associate with persons affected with malignant and infectious diseases, in all to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. V. OBSTRUCTIONS AND DEFECTS ON SIDEWALKS, OR IN HIGHWAY, CAUSED BY PRIVATE IN- DIVIDUALS.2o« (a) On Sidewalks ^'^ 864. For Defective or Insecure Covering of Coal-Hole or Other Opening in or from Sidewalk, ^i" I. That at the times hereinafter mentioned defendant was 2°' Plaintiff may allege in his com- plaint facts showing defendant liable both on the theory of nuisance and negligence. If alleged as one cause of action defendant has the right to have these two theories of liabiUty separately stated and numbered. At the trial, whether separately stated, or commingled in one count, plaintiff is not to be compelled to elect upon which theory he will pro- ceed, but has the right to offer proof to sustain either theory and to re- cover upon whichever cause of action the facts warrant. Schoenfeld v. Mott Ave. Realty Co., 168 App. Div. 91, 153 N. Y. Supp. 745; Brod- sky V. Hibel, 94 Misc. 312, 158 N. Y. Supp. 329. " See note 217, post, as to liability of a contractor. ™ While an abutting owner is liable for the creation of a defective condition of thp sidewalk in front of hia premises, he is not in the ab- sence of statute primarily liable for injuries caused by failure to main- tain the sidewalk in repair; the primary duty is upon the city. Willis V. Parker, 173 App. Div. 552, 159 N. Y. Supp. 676. ^"' Adapted from complaint in Spaine v. Stiner, 168 N. Y. 666, where a judgment against defendant, the owner of leased premises, was up- held. See, also. Campion v. Roll- wagen, 43 App. Div. 117, 59 N. Y. Supp. 308; Matthews v. City of N. Y., 78 App. Div. 422, 80 N. Y. Supp. 360. The municipality would not be liable unless it had actual notice of the defect, or it was ap- parent by ordinary observation when cover was in place. Matthews v. City of N. Y., supra. It the coal-hole was maintained without a license, an action for a nuisance will lie. See form 1009 under Nuisance, and notes. 938 Abbott's Forms op Pleading [the owner ^^ and] in possession and control of a certain building and premises abutting on street, and known as No. ; that during said times defendant main- tained an opening in the sidewalk in front of said building, leading into a coal-shute running into and connecting with the cellar of said building. II. That it became and was the defendant's duty to at all times keep said sidewalk opening securely covered, and the cover thereof securely fastened, so that persons lawfully upon said sidewalk would not fall into the same. III. That on or about the day of , 19 , while plaintiff was walking upon said sidewalk, he fell into the said opening in the sidewalk; that such fall was caused solely by the cover of the said opening, supplied and main- tained by defendant, being left unfastened or not properly fastened, or in place, so that when plaintiff stepped upon said cover it turned over or slipped, thereby causing plaintiff to fall as aforesaid. ^^^ IV. On information and belief, that said cover had been for a long time prior to said day defectively secured, and that defendant had knowledge and notice of its defective condition. V. [Allege resulting injuries, as in Forms 973-980.] Wherefore [etc., demand for judgment]. 865. The Same, Where Cover was Removed, and not Replaced. 21^ I. [Allege defendant's occupation of premises, as in Form 864.] '" The owner of leased premises show both nuisance and negligence (a is liable, where he retains the right to substantial portion of the cover be- en ter and make repairs, if the defect ing missing), plaintiff may recover on has existed a sufficient period to either theory and cannot be com- charge him with notice. Gelof v. peUed to elect. Brodsky v. Hibel, 94 Morgenroth, 130 App. Div. 17, 114 Misc. 312, 158 N. Y. Supp. 329. N. Y. Supp. 293 (defective grating). ^^ From complaint in Scott v. "12 The doctrine of res ipsa loquitur Curtis, 195 N. Y. 424, which was applies, Miners v. Auspresser, 101 an action by the owner to recover Misc. 394. Where the facts pleaded over against the one removing the Actions fob Negligence 939 II. [Allege existence of coal-hole opening, as in Form 864-] III. That on or about the day of , 19 , defendant carelessly and negligently took away the cover of said coal-hole and left said cover lying upon the sidewalk and the hole itself entirely uncovered and unguarded. IV. That on said day while plaintiff was proceeding along said sidewalk, and using due care, he fell into said hole; that his fall was caused solely by the defendant's negUgence in leaving the same open, and the cover thereof removed, as aforesaid. V. [Allege resulting injury, as in Forms 973-980. \ Wherefore [etc., demand for judgment]. 866. Injury by Skid or Run- Way on Sidewalk.^i* I. That at the times hereinafter mentioned street in the city of was a public street and thoroughfare, over, along and upon which the public at large have the right of travel. II. That on or about the day of , 19 , cover, and compel reimbursement of the amount of a judgment re- covered by the injured person against the owner. The owner of an apartment house who retained control of the cover was held liable for either the janitor's or a tenant's negligence in leaving the hole open in Jennings v. Van Schaick, 108 N. Y. 530; Anderson v. Caulfield, 60 App. Div. 560, 69 N. Y. Supp. 1027. But the owner is not liable where the cover has been tem- porarily removed pursuant to an agreement with his tenant and a coal company, of which the owner has no knowledge. Brady v. Shepaird, 42 App. Div. 24, 58 N. Y. Supp. 674. Other cases on this liability: Manney v. Curtis, 113 App. Div. 421, 99 N. Y. Supp. 288 (against one delivering coal); Downey v. Low, 22 App. Div. 460, 48 N. Y. Supp. 207 (against owner who occupies, re- moval by servants of independent contractor); Hart v. McKenna, 100 App. Div. 219, 94 N. Y. Supp. 216 (against owner, who vacates to per- mit extensive repairs by independent contractor, and latter's servants re- move cover without owner's permis- sion). See Schoenfeld v. Mott Ave. Realty Co., 168 App. Div. 91, 153 N. Y. Supp. 745, for an action in- volving the liabiUty of the owner and the lessee for injuries resulting from leaving open the doors covering steps leading from the street into an adjoining cellar. 21* From complaint in Shane v. Nat. Biscuit Co., 186 N. Y. 514, where a recovery for plaintiff was upheld. 940 Abbott's Forms of Pleading defendant carelessly and negligently placed and maintained an obstacle and obstruction consisting of a skid or run-way, upon the sidewalk on the [easterly] side of said street; that the same was placed upon a platform at the entrance of defendant's factory, at No. on said street, and said skid or run-way extended from said entrance over, upon and out into said sidewalk in front of said factory; that said skid or run-way was so negligently placed and maintained as to cause the sidewalk to be and become unsafe and dangerous."^ III. That on said day, while plaintiff was passing along said sidewalk, and exercising due care, and solely from de- fendant's aforesaid negligence in placing and maintaining said obstruction, plaintiff was thereby violently thrown down with great force. IV. [Allege resulting injury as in Forms 973-980.] Wherefore [etc., demand for judgment]. 867. For Injury Caused by Structure Upon Sidewalk.^^^ I. [Adapt from Form 866.] II. That at the corner of street and street, defendant extended a passage-way con- structed by him, 2'^ over and upon the sidewalk, thereby causing an obstruction upon said sidewalk interfering with the free passage of pedestrians; that defendant was negli- gent [state how, as:] in that at night he placed no lights ^'* It would probably be advisable permit defendant an adjournment to in some way characterize the of the trial. negligence, under the authorities in ™ The liability is the same even the note at the beginning of this if the work is done by an independent chapter; in the precedent, the evi- contractor. See Keating v. Met. dence showed that the skid was St. Ry. Co., 105 App. Div. 362, 94 covered with a greasy substance, N. Y. Supp. 117. although the complaint made no A contractor who, under an agree- mention of that fact. ment with the public authorities ^'» Adapted from complaint in granting him a license, or upon other McDonald v. Holbrook, etc., Co., considerations, assumes to keep the 105 App. Div. 90, 93 N. Y. Supp. highway safe, is liable directly to 920, where it was held error to allow the injured person for his neglect, an amendment at the trial to charge See Sullivan v. Staten Island R. Co., negligent construction, and not to 50 App. Div. 558, 64 N. Y. Supp. 91. Actions fob Negligence 941 or other warning signals at said place or erected any barriers, and in that he totally failed to warn passersby of such ob- struction; [that thereby defendant violated an ordinance then in force in the Borough of Manhattan, being § 220, of Article 12 of Chapter 5, as follows — quoting]. III. [Allege resulting injuries to plaintiff, as in Forms 973-980.] Wherefore [etc., demand for judgment]. 868. Leader-Pipe, Discharging Contents over Sidewalk.^i* I. That one of the public streets of the [city] of is street; that defendant at the time hereinafter men- tioned and for a long time prior thereto was the owner of a building abutting upon said street, and known as No. II. That defendant [had erected and] maintained upon said building a water-pipe extending from the roof to within a short distance above the sidewalk in front of said premises; that as a part of said water-pipe, and part and parcel thereof, there was also a water-spout extending out, upon and over said sidewalk; that said pipe and spout were used by defend- ant for the purpose of conducting water from the roof and gutters of said building. III. That defendant negligently omitted to exercise any care or use any means whatever to conduct the water coming from said pipe and spout over said sidewalk, but for a long time prior to the day of , 19 , negligently and carelessly permitted such water to flow upon and over said sidewalk, and ice to form from said water and to ac- cumulate and remain on said sidewalk, and thereby to cause said sidewalk to become and remain in an unsafe and dan- gerous and improper condition. IV. That on or about said day, while plaintiff was using said sidewalk, and proceeding with care, in consequence "^Adapted from complaint in 113 N. Y. Supp. 118, where in an Trembly v. Harmony Mills, 171 action against the municipality the N. Y. 598, where a recovery for plain- court characterized the leader-pipe tiff was affirmed. See, also, Duffy v. as a nuisance. City of N. Y., 128 App. Div. 837, 942 Abbott's J'oems of Pleading solely of defendant's said negligence plaintiff slipped oil said ice and fell with great force and violence upon said sidewalk. V. [Allege resulting injuries, as in Forms 973-980.] Wherefore [etc., demand for judgment]. 869. From Excavation Adjoining upon Sidewalk.^" I. [As in Farm 866.] II. On information and belief, that defendant was [the owner and] at the times hereinafter mentioned in possession of premises on said street known as No. street, and abutting thereon. III. That prior to the day of , 19 , de- fendant dug or permitted to be dug upon said premises an excavation immediately adjacent to the sidewalk of said street, and negligently and carelessly left the same, or permitted the same to be left, wholly open and unguarded, and with no barrier between it and said sidewalk, [and failed to put any warning Ught thereon in the nighttime]. IV. That on said day [and in the nighttime] while plain- tiff was passing upon said sidewalk and using due care, and solely because of its unguarded condition [and lack of lights thereon] as aforesaid, plaintiff on slightly deviating from said sidewalk was precipitated into said excavation. V. [Allege resulting injury as in Forms 973-980.] Wherefore [ete., demand oj judgment]. 870. Injury from Fall of Blind, or Sign, from Premises Abutting upon Highway.^^" I. [As in Form 868.] II. That on or about the day of , 19 , as plaintiff was passing along the sidewalk in front of defend- 21' Adapted from Murphy v. Perl- 220 Adapted from complaints in Btein, 73 App. Div. 256, 76 N. Y. McNulty v. Ludwig & Co., 125 App. Supp. 657; Healy v. Vorndran, 65 Div. 291, 109 N. Y. Supp. 703; App. Div. 353, 72 N. Y. Supp. 877. Lawless v. August, 125 App. Div. See, also. Form 1005, and notes. 708, 110 N. Y. Supp. 86. Actions for Negligence _ 943 ant's said premises, a [sign] theretofore attached to said building [and belonging to defendant] became detached therefrom and fell", striking plaintiff on the [head]. III. That said sign fell because of defendant's negligence in failing to have it securely fastened to his said building.^" IV. [Allege resulting injuries, as in Forms 973-980.] Whebefoke [etc., demand of judgment]. (b) Defect or Obstruction on Roadway 871. Against a Contractor,^^!" for Leaving the Street in an Insecure State, whereby Plaintiff's Horse was Injured. I. That at the times hereinafter mentioned the defendant, [by virtue of an agreement with the trustfi^s of the village of ], was engaged in [state what, as:] laying down pipes in and under the highway known as street, in said village, for the purpose of supplying said highway with gas for illuminating purposes; that it thereby became necessary for defendant to make trenches and holes in said highway for the purpose. II. That the defendant, on or about the day of , 19 , [or, between the , etc.] made va- rious trenches and holes in said highway, and laid down said pipes, and displaced the earth and materials thereof, but, disregarding his duty, when such pipes were laid down, to fill up properly the said trenches, [or, to place barriers or railings around said trenches — and to suitably light them during the night — or otherwise state the duty violated] ^^^ and 2" If both the building and the 2"* See note 217. sign belong to defendant, the rule ^^^ A municipal ordinance may be of res ipsa loquitur applies. Feder v. introduced as some evidence of neg- Friedman, 71 Misc. 134, 128 N. Y. ligence, where the action is founded Supp. 6. The landlord is not liable on the common-law liability, even without proof of his negligence if a if the ordinance is not pleaded, tenant erects the sign. Di Marco Berry v. Urban Water Supply Co., V. Isaac, 74 Misc. 459, 132 N. Y. 163 App. Div. 21, 148 N. Y. Supp. Supp. 363. An owner who employs 67. an independent contractor is not See, also, note on pleading negli- liable for the latter's negligence, gence at beginning of chapter. McNulty V. Ludwig & Co., supra. 944 . Abbott's Forms of Pleading to leave the said highway in a reasonably secure condition, so carelessly and negligently filled said trenches, [or, omitted to place any barriers or railings around said trenches and holes — and to in any way light them during the darkness] and thereby left the said highway in so dangerous and improper a state, that a horse of the plaintiff, of the value of dollars, which he [or, M. N., a servant of plaintiff] was then and there lawfully driving along the said highway, sunk and fell therein, without fault or negligence on plaintiff's [or, said M. N.'s] part, and was wounded and lamed, and rendered of no value, to the plaintiff's damage dollars. ^^^ Wherefore [etc., demand of jvdgment]. 872. For Laying Building Materials in the Street Un- guarded, Whereby Plaintiff was Thrown Out of His Carriage. ^^* I. That the defendant, on or about the day of , 19 , placed or caused [or gave leave and per- mitted ^^^] to be placed [state character of obstruction as:] large quantities of building materials in the public highway known as street in , and negUgently left the same therein, obstructing the highway, dm-ing the nighttime, and without placing any fight or signal there to indicate their presence, or any guard or rail about them. II. That in consequence of said negligence and improper conduct of the defendant, in the nighttime of that day, the carriage of the plaintiff, of the value of dollars, with the plaintiff therein, then passing through said street, was accidentally and without fault of plaintiff, driven against the said obstruction, and thereby overturned. 2" See Forms 981-982. rendering it unsafe, and the obstruc- 2^^ The theory of this action is tion itself substantially a pubhc negUgence, and under such a com- nuisance. Fisher v. Rankin, 25 plaint it is error for the court to Abb. N. C. 191, 7 N. Y. Supp. 837. submit to the jury the question ''" "Permitted" may be construed whether, under defendant's authority to mean "gave leave." Coon v. or employment, Im unlawful obstruc- Froment, 25 App. Div. 250, 49 N. Y. tion had been placed in the street, Supp. 305. Actions for Negligence 945 III. [Allege injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. 873. Against Carrier for Leaving Articles for Delivery in Highway. That the defendant, through its employees, who were operating one of its cars, took bundles of newspapers there- from and piled them on the pavement between the street railway track and the curb, on the east side of street; that there were a number of large bulky packages wrapped in paper substantially the same color as the pave- ment; that the car then proceeded on its way, leaving the street obstructed by these papers, with no hght upon them, or any guard to warn or prevent their being run into by vehicles traveling upon the street; that the papers were left some time between three-thirty and four a. m., while it was still dark, and that some time later the plaintiff, riding as a guest in an automobile, went north on the easterly side of said street, and the automobile came into collision with the bundles of papers, and as a result of the collision, plaintiff received the injuries hereinafter alleged.^^^ 874. Injury to Child at Play, from Material Placed in Highway. ^^^ I. That prior to the day of , 19 , de- fendant, under a permit from the city of so to do, placed in the pubhc highway known as street in said city, near the corner of street [or, in front of prem- ises known as No. street] certain material consisting of [state generally, as:] lumber. 226 Prom complaint in Jepson v. liable for an injury resulting to a Intern. Railway Co., 220 N. Y. 731. child from playing with explosives "" Adapted from Ramsey v. Nat. left by it on public land. In Hall v. Contr. Co., 49 App. Div. 11, 63 N. Y. Tel. Co., 159 App. Div. 53, N. Y. Supp. 286; Earl v. Crouch, 32 144 N. Y. Supp. 322, defendant was N. Y. St. Rep. 13, aff'd 131 N. Y. 613. held liable. In Perry v. Rochester Lime Co., See Form 890, where the injury 219 N. Y. 60, defendant was held to the child was received on defend- under the circumstances not to be ant's premises. 946 Abbott's Foems of Pleading II. That it was the duty of the defendant to pile such lumber in such a manner as not to be liable to fall; that de- fendant was bound to anticipate that such material would be attractive . to the children playing in the street, and it became his duty to pile the same with reasonable care, so as not to be liable to fall from the play of children thereon and thereabouts. III. That disregarding his said duty defendant so negli- gently and carelessly piled said lumber that planks were left at a slant, and tilting, and the whole pile Uable to fall from any slight push or jar thereof. IV. That plaintiff, then a child of years of age, was on the day of , 19 , playing on said street, and went upon said pile of lumber; that the same thereupon collapsed solely through the aforesaid negUgence of defendant in hot piUng it with reasonable care, and plain- tiff was thrown down and crushed thereby. V. [Alkge resulting injury as in Forms 973-980.] VI. [Allege appointment of guardian ad litem, as in Form 79.] Wherefore [etc., demmnd of judgment. 875. Against One Causing the Defect, and Another Whose Negligent Act was a Concurrent Cause of Injury. [Sustained in Boehm v. Hammond, 145 App. Div. 511, 129 N. Y. Supp. 884.] I. That the defendant, Y. Z., while engaged in excavating in the street at the corner of Street and Avenue in the [City] of , on the day of ,19 , caused certain large rocks to be negli- gently and carelessly placed upon the crosswalk at that point. II. That the plaintiff, while in the act of crossing the street at this place was caused to step upon one of said rocks so neghgently placed by defendant, Y. Z., and that while in this position the defendant, W. X., negligently and carelessly drove a team, attached to a wagon against said rock, thereby Actions foe Negligence 947 throwing plaintiff therefrom and under the wheels of the wagon. III. [Allege resulting injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. VI. AGAINST LANDLORD,228 TENANT OR OCCU- PANT, FOR DEFECTIVE PREMISES 876. Allegation of Landlord's Control of Portions of the Premises, and Plaintiff's Right to Invoke the Duty of Care With Relation Thereto. I. That at the time hereinafter mentioned defendant was the owner [or, the lessee] of an apartment house known as and located at Numbers Street in the City of ; that said apartment house was divided and separated into apartments for the use of and occupation by different famiHes, and the same were separately rented by defendant for such purpose; that defendant at said time had and reserved to himself control of various portions of said apartment house, to wit, the vestibules, halls, lobbies and stair-cases ^^^ [roo'f, basement spaces devoted to coal bins and trunk rooms, etc.] ^'^ which were used in common by all the tenants and others lawfully within the premises. ^^* A landlord, leasing the entire ^'^ It is essential that the com- premises, is not usually liable for plaint show facts raising a duty of personal injuries resulting from a care. Unless the complaint charges condition of bad repair; this is so, that the defendant was in occupation even if he has covenanted in the lease of the defective premises, it is neces- to make all necessary repairs, and sary to show that he reserved con- has been duly notified of the neces- trol of the portion wherein the de- sity for the repair; his liability for feet existed. See Voigt v. Johnson, failure to perform his covenant is 176 App. Div. 722, 163 N. Y. solely contractural, and no action Supp. 785; Stamm v. Purroy, 170 for negligence can be founded upon App. Div. 584, 156 N. Y. Supp. the breach. See Schick v. Fleischauer, 415. 26 App. Div. 10, 49 N. Y. Supp. See Form 881, for precedent where 962; Boden v. Scholtz, 101 App. Div. a requirement of the N. Y. Tene- 1, 91 N. -Y. Supp. 437; Frank v. ment House Law is sought to be Mandel, 76 App. Div. 413, 78 N. Y. applied to show negligence. Supp. 855. """ It would only be necessary to 948 Abbott's Forms of Pleading II. That at the time hereinafter mentioned plaintiff was a tenant [or, a member of the family^^or, a guest — or, a servant — of one M. N., a tenant] of one of the apartments in said apartment house.^" [Or, That at the time hereinafter mentioned plalintiff entered said apartment house for the purpose of calling upon one M. N., a tenant of one of the apartments therein, at his invitation.] [Or, That the defendant invited members of the pub- Uc wishing so to do to enter said premises for the purpose of caUing upon any of the occupants of the apartments therein.] ^^^ 877. Allegation of Defendant's Ownership of Tenement House.^^^ [Under New York Tenement House Law.] That at the times hereinafter mentioned defendant was the owner of a certain tenement house, known as No. specifically allege the defendant's See Form g93 for precedent in control of that portion of the build- action by a mere licensee, ing or premises, the defective condi- ^32 jjj Pogarty v. Bogart, 69 App. tion of which was the cause of plain- Div. 114, 69 N. Y. Supp. 47, the tiff's injury. court considered that a person enter- al The complaint must show that ing private premises to ring a bell the place where plaintiff was injured for a proper purpose, the bell being was one in which defendant had in- visible from the highway, had acted vited the public to enter, or had upon an implied invitation, and was provided for plaintiff's use, or which not a mere Hcensee. plaintiff had the right to use; other- 233 xhe facts which are alleged in wise no duty of care toward him is this form, and which are in addition raised. See Panken v. Holly, 146 to what is set forth in Form 876, are App. Div. 947, 131 N. Y. Supp. 705. only essential when the plaintiff is Simply to allege that plaintiff attempting to invoke the Tenement "was lawfully on the premises," is House Law as (in whole or in part) insufficient. Fairchild v. Leo, 149 the basis of the claim of neghgence App. Div. 31, 133 N. Y. Supp. 572; against defendant; so far as it may Wagner v. Shoemaker, 97 Misc. 432, be only necessary to show the general 161 N. Y. Supp. 376. It imports character of the building, and de- nothing more than that plaintiff fendant's control of certain portions, was a mere hcensee. See note to Form 876 amply suffices. Form 885. Actions for Negligence 949 street; that portions of said house were at such times leased and occupied as the residence of [more than] three famiUes, Uving independently of each other, and doing their cooking upon the premises.^'* 878. Against Landlord, for Letting Premises Unhealthy Because of Defective Plumbing. I. [As in Forms 876 or 877.] II. That said building and premises at and prior to the times hereinafter mentioned were negligently and carelessly built, and negligently and carelessly maintained by defend- ant, in that the waste pipes in said house were so defective and out of repair by reason of the joints of said pipes being ill-fitted and loose, and devoid of cement or other covering material [or, broken, etc.] as to permit deleterious gases to escape therefrom into said house and into the apartment so occupied by plaintiff as aforesaid. III. That defendant, well knowing the aforesaid defective and unhealthy condition of said premises, ^^■'' on or about the day of , 19 , rented said apartment to plaintiff, without informing plaintiff thereof; and that plain- tiff and his family continued to occupy said apartments until the day of , 19 , and were during said period wholly ignorant of such dangerous and un- healthy condition as aforesaid. IV. That by reason of the premises and without fault on his part, plaintiff became sick and ill [continue according to the case; see Forms 973-980]. Wherefore [etc., demand of judgment]. 23* The omission of plaintifT to 133 N. Y. Supp. 608, aff'd 208 N. Y. prove that the tenants cooked in 605. their apartments cannot be raised "'' Knowledge of the defective for the first time upon appeal. Bern- condition must be alleged and proven stein V. Faden, 149 App. Div. 37, at trial. Donner v. Ogilvie, 49 Hun, 229, 1 N. Y. Supp. 633. 950 Abbott's Forms of Pleading 879. Against Landlord of Tenement or Apartment House, who Reserved Control of Halls, for Injuries Caused by Dangerous Stair Covering.^^* I. [As in Form 876 or 877.] II. [As in Form 876.] III. That defendant negligently and carelessly permitted the cloth or carpet put down and maintained by him as a covering to said hallways, lobbies and staircases, to become so worn and ragged, and otherwise defective and out of repair, as to be dangerous to the life and limb of persons traversing said hallways, lobbies and staircases, as defendant well knew, and of which condition he had both actual and constructive notice.^'' IV. That on or about the day of , 19 , plaintiff, while proceeding down the staircase between the and floors of said building, without fault or negligence on his part, and solely owing to the aforesaid negligence of defendant, tripped upon said defective carpet and was precipitated down said staircase. V. [For allegation of injury and damage, see Forms 973-980.] Wherefore [etc., demand of judgment], 880. Allegation of Injury from Defective Condition of Roof of which Landlord Retained Control. [Sustained in Golob v. Pasinsky, 178 N. Y. 458.] ^^ Adapted from Henkel v. Muir, Kramer v. Stone, 176 App. Div. 549, 31 Hun, 28; Nadel v. Fichten, 34 163 N. Y. Supp. 578. App. Div. 188, 54 N. Y. Supp. 551; The landlord cannot be held liable Robinson v. Stewart, 84 App. Div. for an injury caused by some slippery 594, 82 N. Y. Supp. 928; Kessler substance left on the stairs, without V. North River Realty Co., 169 proof of actual notice, or negligence App. Div. 814, 155 N. Y. Supp. in failing to discover it. Maringer 799. V. Hill, 146 App. Div. 720, 131 2" The landlord is chargeable with N. Y. Supp. 445. Of course this liability for defective conditions only rule has no application where it is after actual notice, or unreasonable shown that the defendant created omission to ascertain such condition. the dangerous condition. Jankowsky Idel V. Mitchell, 158 N. Y. 134; u. Brown, 177 App. Div. 602, 164 N. Y. Supp. 303. Actions for Negligence 951 I. [Allege defendant's control of roof, as in Form 876.] II. [Allege plaintiff's occupancy of apartment, — or other- wise, — as in Form 876.] III. That the defendant prior to the times hereinafter mentioned negligently and carelessly permitted the roof of the said building to be and become and remain out of repair, and in a leaky, defective and dangerous condition; that defendant had actual and constructive notice of such condi- tion.^^^ IV. That on or about the day of , 19 , by reason of the aforesaid negligence and carelessness of defendant in permitting the roof of said premises to be and remain in a dangerous condition and out of repair and defec- tive, a large piece of plaster or other substance from the ceiling in one of the rooms of plaintiff's said apartment fell and struck plaintiff on the head and back.-^' V. [Allege resulting injuries as in Forms 974-980.] Whebefore [etc., demand for judgment]. 881. Against Landlord, for Failure to Light Halls, or to Provide Railings for Steiirs.^^" [Under N. Y. Tenement House Law, §§ 35, 76.] 2'8 This is necessary. Kramer v. App. Div. 250, 104 N. Y. Supp. 1076. Stone, 176 App. Div. 549, 163 N. Y. An' exception exists when the hallway Supp. 578; and see note on this point or stairs are so constructed that with- to Form 879. out artificial light they are not rea- 2'' The court considered that how sonably safe. Brigher v. Buchten- the defect in the roof caused the fall kirch, 29 App. Div. 342, 51 N. Y. of the ceiling was a matter of proof, Supp. 464. not of pleading, and that the com- The following cases, where the plaint was good on demurrer. charge of negligence was the failure ^*'' Adapted from Br(Twn v. Witt- to Ught the halls, turn more on the ner, 43 App. Div. 135, 59 N. Y. Supp. question of plaintiff's freedom from 385; Bretsch v. Plate, 82 App. Div. contributory negligence. Downs v. 399, 81 N. Y. Supp. 668. Brown Realty Co., 152 App. Div. The action is necessarily based 451, 137 N. Y. Supp. 327; Bornstein upon the statutory requirements, for v. Faden, 149 App. Div. 37, 133 N. Y. no duty at common law devolves Supp. 608, aff'd 208 N. Y. 605; upon the landlord to light the hall- Schindler v. Welz & Zerweck, 145 ways, even though he retains control App. Div. 532, 130 N. Y. Supp. of them. Robinson v. Crimmins, 120 344. 952 Abbott's Forms of Pleading I. [Allege defendant's ownership of tenement house, as in Form 877.] II. [As in paragraph II of Form 876.] III. That at the time hereinafter mentioned defendant failed to keep any [or, a proper] ^^ light burning in the public hallway near the stairs upon the entrance [or, the second] floor after sunset and during the night thereafter until sun- rise. [Or, upon the third— or other upper — floor from sunset until ten o'clock in the evening thereof.] IV. That at said time defendant did not provide in said house any [or, proper] banisters and railings upon the stair- ways thereof. V. That on or about the day of , 19 , at about the hour of o'clock in the nighttime thereof, while plaintiff was proceeding from the , "to the floor of said house, and necessarily using the stairway leading from said upper floor, solely through the negligence of defendant in failing to provide [proper] lights and railings as aforesaid, and without any fault or lack of care on his part, plaintifif was precipitated violently down said stairway. VI. [Allege resulting injuries as in Forms 973-980.] Wherefore [etc., demand for judgment]. 882. Against Landlord for Neglect to Provide Fire Escapes (Under Statutes). ^^ I. [Allege defendant's ownership of building; see Form 876.] II. That said building was [here allege the construction of the building which brings it within the statutory provisions]. III. That it was the duty of the defendtot to provide such fire escapes, or means of escape in case of fire, as should ~t)e approved by the building department [or otherwise, according to the provisions of the statute], but defendant negligently and carelessly disregarded his said duty and wholly omitted to ^" See Bornstein v. Faden, supra. ledy, 78 N. Y. 306, and, Rose v. King 2« Action sustained in Robb v. (Ohio), 30 N. E. Rep. 267. Errett, 217 N. Y. 644; Willy v. Mul- Actions for Negligence 953 procure the approval of said department, and to provide fire escapes or other means of escape in conformity therewith, and wholly omitted and neglected to provide any fire escapes, or other means of escape from fire, upon his said building. ^^^ IV. That on or about the day of , 19 , plaintiff rented of defendant rooms upon the floor of said building, and on said day moved into said rooms and occupied the same, and thereafter continued to occupy the same as a tenant of defendant. V. That on or about the day of , 19 , 'while plaintiff was in sudh occupation as aforesaid, a fire was started in or about said building and rapidly spread to the upper floors thereof, and that, in his efforts to escape from I said building, plaintiff was necessarily obliged, by reason of defendant's said negligence in not providing fire escapes, or other means of escape from fire,, and without fault or negli- gence on plaintiff's part, to jump from one of the [rear] windows upon the floor of said buildmg. VI. That by reason of the premises plaintiff was greatly hurt [etc., according to fact, as in Forms 973-980]. Wherefore [etc., demand of judgment]. 883. Against Landlord, for Leasing Infected House. ^^* [Adapted from Cesar v. Karutz, 60 N. Y. 229; Cutter v. Hamlen, 147 Mass. 471.] I. That on or about the day of , 19 , the defendant was the owner of a dwelling house known as number street, in the city of , in which, as ^" It will be necessary to examine the lease was made was not estab- the provisions of the particular stat- lished, when it was shown that he ute claimed to be violated, and ad- had knowledge before plaintiff's term just the allegations with reference to commenced, and that the premises its requirements. The form in this abutted on the public highway and respect is merely suggestive. were a public nuisance, he was under 2** In Steefel v. Rothschild, 179 the immediate duty of disclosure to N. Y. 273, the landlord was held liar plaintiff, and of abatement of the ble for leasing premises found to be nuisance. Plaintiff recovered the unsafe, and that even if his knowledge amount of rent paid in advance, and of their unsafe condition at the time injury to stock and fixtures. 954 Abbott's Forms of Pleading the defendant well knew, had occurred cases of a contagious disease known as [smallpox], within last past, and that the same was tainted with the said disease, and was dangerous in consequence thereof. II. That it was the duty of the defendant to inform who- ever should lease said premises of the aforesaid danger, so that precautions might be taken, and to take reasonable pre- caution against the exposure of the tenant to said disease; but disregarding his said duty the defendant, on or about the said date, let said premises to plaintiff, and carelessly and negUgently omitted to inform the plaintiff thereof, or to take any precaution against the exposure of the plaintiff to the said disease. III. That the plaintiff was wholly ignorant thereof, and used said house as a dwelling house, and became infected with the said disease. IV. [Allege damage as in Forms 973-980.] Wherefore [etc., demand of judgment]. 884. Against Occupant; Injury from Fall of Elevator.^^'' I. That at all the times hereinafter mentioned, defendant occupied certain premises known as No. street, and conducted thereon a store for the sale of merchandise. II. That for the purposes of such business defendant at all times hereinafter stated maintained, operated and con- trolled certain passenger elevators, running from floor to floor in said premises, together with the machinery and appurtenances thereunto belonging. "5 Complaint adapted from Ru- 158 App. Div. 139, 142 N. Y. S^upp. metsch v. Wanamaker, 216 N. Y. 769. But where it is also necessary 379, where the defendant was held to show defendant's notice or knowl- Uable for a defect discoverable on edge of a defective condition of an proper inspection. elevator, such falling merely estab- That the unexplained fall of a pas- lishes that it was out of order but senger elevator may raise a presump- does not establish notice to defendant tion of negligence, see Griffen v. of that fact. Lemik v. Am. Sugar Manice, 166 N. Y. 188; Harris v. Ref.Co., 176App. Div.378, 162N. Y. Guggenheim, 154 App. Div. 289, 138 Supp. 1016. N. Y. Supp. 1037; Harvey v. Proctor, Actions for Negligence 955 III. That on or about the day of , 19 , plaintiff was lawfully in said store, and became a passenger in one of said elevators for the purpose of [ascending to one of the upper floors to make a desired purchase]; that while in said elevator, it suddenly fell, or rapidly descended, striking the bottom of the shaft with great force and violence and causing plaintiff to be injured as hereinafter described. IV. On information and belief that said elevator fell solely through the fault and negligence of defendant in the maintenance, operation and control of said elevator, and of the machinery and appurtenances used in its operation; that defendant had notice of the defective condition thereof. V. [Allege injury resulting, as in Forms 973-980. \ Wherefore [etc., demand for judgment]. * 885. Against Occupant for Injuries Caused by Leaving Unguarded a Dangerous Opening.^^" [Action sustained in Heidijiger v. Hine, 18 Weekly Dig. (N. Y.) 404.] 247 I. That defendant, at the times hereinafter mentioned [was the owner and] had possession ^^^ and control ^^^ of a building and premises [briefly designate them, as thus, known 2*° If it is sought to make the de- tain premises sufficiently alleges im- fendant liable on other grounds than mediate right and power to control those of negligence, such as that the the same. Pennachio v. Greco, 107 place of danger is within a public App. Div. 225, 94 N. Y. Supp. street, or that a duty imposed by 1061. some municipal ordinance has been ^*' The action should be brought violated, those grounds should be against either the owner or the actual stated in the complaint, so that issue occupant of the building, not against can be taken upon them, and the an intermediate lessee, except where defendant may come prepared to try he leased the building, suffering its those issues. Congreve v. Morgan, 4 dangerous condition to remain. Dav- Duer (N. Y.), 439, 5 id. 495. See enport v. Ruckman, 16 Abb. Pr. forms under Nuisance, post. ' (N. Y.) 341 and see Rosewell v. "'■'" See, also, Rupprecht v. Brighton Prior, 2 Salk. 460. Where the owner- Mills, 27 App. Div. 77, 50 N. Y. Supp. ship and the occupancy are united in 157. one person, the complaint should so 2« An allegation that defendant is state. Where they are severed, the "the owner and in possession" of cer- actual occupant is -prima facie liable. 956 Abbott's Forms of Pleading as number , in the city of ], which building was then occupied by him as [if a public resort, designate its use briefly, as, a warehouse — or, a retail store — or the like].^'''> II. That said building was negligently and carelessly built and negUgently used by defendant, inasmuch as [here state in a general way the negligent user, as thus:] there was, in the public hall in the second story thereof, at the times herein- after mentioned, a hole or hatchway through the floor, open- ing into the cellar, said hatchway being in the route over which persons going to defendant's office had to pass [and being usually covered by a trap door]. III. That defendant, well knowing the premises, did, on or about the day of , 19 , negMgently and wrongfully leave said hatchway uncovered and unprotected, by means whereof the plaintiff, who was then and there [here show plaintiff's lawful presence in the building, as] lawfully going through the regular public entrance to de- fendant's office in pursuit of plaintiff's lawful business [or, if a private dwelling, or the like, lawfully in said building by de- fendant's request] ^" and necessarily passing along said hall, fell into and through said hatchway without fault or negligence on his part.^^^ ^'" Important to aid plaintiff to es- employment, or otherwise to show he tablish his lawful presence in the was there under circumstances such building. Where the place was a pri- that defendant owed him some duty, vate dwelling, the action would seem is proper. Fairchild v. Leo, 149 App. to be maintainable by one entitled to Div. 31, 133 N. Y. Supp. 572; Evans- enter, both on general principles, and ville R. R. Co. v. Griffen, 100 Ind. on the grounds on which recovery 221. was allowed in Bird v. Holbrook, 4 252 Qf course the defendant's act Bing. 628, 15 Eng. Com. L. R. must be the proximate cause of the 91- injury; where plaintiff showed that "' "Lawfully in the building,'' im- he had been kicked into the opening, ports nothing more than a licensee's 'the action must be for assault, even right. It is sufficient whpre the build- though the defendant may have been ing is of a public character. But if a responsible also for the condition of private dwelling or the like, an allega- the hatchway. See Miller v. Bahm- tion that he was present by defend- muUer, 124 App. Div. 558, 108 N. Y. ant's request or by his permission or Supp. 924. Actions for Negligence 957 IV. [Allege injury and damage; see Forms 973-980.] Wherefore [etc., demand of judgment]. 886. Injury to One Attending Public Exhibition on De- fendant's Premises; Fall of Grand Stand, or Other Structure."' I. That at the times hereinafter mentioned defendant was the owner [or, the lessee] of certain real property in the city of , consisting of on street. II. [Allege use thereof, as:] That said premises are com- monly known and designated as the "Athletic Field" of the city; that on the day of , 19 , and for several years prior thereto defendant [and his lessees] used said premises for public exhibitions of an athletic nature, which the public were invited to attend upon paying an admission fee, and an additional fee for admission to certain structures thereon containing seats arranged for the purpose of giving the spectators a better view of the games, said structures being known as the '.'grand stands." III. That said grand stands were elevated to a consider- able distance above the surface of the ground, and contained seats supported by posts and timbers, and were erected and intended by defendant to be used for the accommodation of large crowds of people witnessing said games; that defendant represented to the public that said grand stands were safe for the purpose for which they were constructed and per- mitted-to be used. IV. That it was the duty of the defendant to at all times maintain said structure in a safe and secure condition, and to exercise adequate and suitable supervision over the same to guard against defects and deterioration and to keep the same in proper and safe repair. ^'' From Lusk v. Peck, 199 N. Y. is upon defendant. Fox v. Buffalo 546, where a recovery for plaintiff Park, 21 App. Div. 321, 95 N. Y. was upheld. Supp. 478, aff'd 163 N. Y. 559; Under these facts the burden of Schnizer v. Phillips, 108 App, Div. explaining the cause of the accident 17, 95 N. Y. Supp. 478. and showing freedom from negligence 958 Abbott's Forms of Pleading V. On information and belief that for a long time prior to said day of , 19 , said grand stand struc- tures were by reason of defendant's negligence in a defective and unsafe condition, that the timbers and posts supporting the same were rotten and unfit for the purpose, that defend- ant had negligently permitted said structures to fall into such a state of decay as to be unsafe. VI. That on said day plaintiff attended an athletic ex- hibition on said premises, consisting of [state], and paid the admission fee, and the additional fee for a seat in said grand stand; that while within said grand stand, and occupying a seat therein, the same collapsed and fell, solely because of defendant's negligence as aforesaid, and plaintiff was maimed and crushed by the falling timbers. VII. [Allege resulting injury, as in Forms 973-980.] Wherefore [etc., demand for judgment]. 887. The Same, Injury to Visitor by Object Falling in Public Place. [Adapted from Kendall v. City of Boston, 118 Mass. 234, by inserting allegation in brackets.] ^^* I. [Allege defendant's ownership or control, or both, of the building, and its use, as in Form 876.] II. That for the purpose of ornamenting said building for an entertainment, defendant had placed upon the walls thereof certain decorations, and, among other things, a statue or bust made of some heavy material; [that, by defend- ant's neghgence the same was not properly nor securely fastened, sufficiently to prevent it from falling by its own weight in the course of the ordinary jarring of said building in its uses as a music hall]. III. That on or about the day of , 19 , while plaintiff was present in said building upon the invita- tion and permission of defendant, and was in the exercise of "*See, also, Goldstein v. Levy, 74 risw. Zimmerman, 138 App. Div. 114, Miao, 463, 132 N. Y. Supp. 373; Mor- 122 N. Y, Supp. 900.. Actions for Negligence 959 due care, said statue or bust fell upon him [and solely in consequence of defendant's negligence]. IV. [Allege injury; see Forms 973-980] Wherefore [etc., demand of judgment]. 888. Injury to Visitor from Fall of Piazza in Private Dwell- ing, ^^s [From an unreported case.] I. [As in Form 885.] II. That said building and premises were negligently and carelessly built, and negligently and carelessly used and maintained by defendant, inasmuch as there was a piazza upon the rear thereof which was so defective and had become so weakened as to be dangerous to the life and limb of persons stepping thereupon, as was well known to defendant. III. That defendant, well knowing the premises, did, on the day of , 19 , invite and permit plain- tiff to enter into said building and upon said piazza; that without plaintiff's fault or negligence, but solely by reason of defendant's negligence as aforesaid, said piazza fell, and plaintiff was thereby precipitated with great violence into a stone area thereunder. IV. [Allege injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 889. Against Hotelkeeper for Injury to Guest.^^^ I. That, at the times hereinafter mentioned the defendant was the keeper and proprietor of a certain hotel situated [at the corner of street and avenue in the city of New York]. 255 p(jp action against hotel keeper that plaintiff might seek shelter in the for similar injuries, see Converse v. hotel from an approaching storm. Walker, 30 Hun (N. Y.), 596, non- ^^ The rule as to landlord and ten- suiting plaintiff because he failed to ant in apartment houses does not prove his allegation that he was upon .necessarily control; under the facts the premises at defendant's request, alleged in this precedent the rule of but merely showed passive acquies- res ipsa loquitur applies. Morris v. cence on the part of the defendant Zimmerman, 138 App. Div. 114, 122 N. Y. Supp. 900. 960 Abbott's Forms of Pleading II. That on the of , 19 , the plaintiff called at the defendant's said hotel, and applied for a room and was thereupon received as a guest of the hotel by the defendant and assigned to a room therein. III. That on the morning of the following day while plain- tiff was occupying the said room a portion of the ceiling or plaster in the room fell upon the plaintiff and caused to him the injuries hereinafter alleged. IV. That the fall of the ceiling or plaster was caused and brought about wholly and solely through the carelessness and negligence of the defendant and without any fault or want of care on the part of the plaintiff. V. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand for judgment]. 890. Injury to Child from Danger on F*remises where Children were Accustomed to Play. [Complaint sustained in Coeur D'Alene Lumber Co. v. Thompson, 215 Fed. Rep. 8.] 2" [Allege character of the premises with detail so as to reveal their dangerous condition; in the precedent, the allegations were substantially as follows:] That for some time prior to , 19 , defendant owned, operated' and maintained a saw- mill and plant located upon defendant's lands at ; that as a part of the plant, defendant had caused to be excavated a certain cistern or well, which was used by it for the storage of water in connection with its 'mill; that some months prior to the day of , 19 , defendant caused all of its buildings, machinery and ap- pUances to be moved from said lands, but carelessly and "'Also sustained as sufficiently ant's liability, in which many prior definite as to its allegations of negU- authorities are cited and discussed, gent maintenance. Many cases on see Middleton v. Reutler, 141 App. the subject of defendant's liability i Div. 517, 126 N. Y. Supp. 409; Gold- for dangerous premises wherein chil- bel'g v. Graham, 146 App. Div. 501, dren are accustomed to play are col- 131 N. Y. Supp. 681; HaU v. N. Y. lated and discussed. Tel. Co., 159 App. Div. 53, 144 N. Y. For New York cases on the defend- Supp. 322. Actions for Negligence 961 negligently failed to fill up or cover said cistern, and care- lessly and negligently permitted the same to remain open and unguarded to and including said day; that on that day said cistern had become filled with water to the depth of about ten feet, and had become extremely dangerous to children of "tender years, and said lands had become and were dangerous premises. That for many months prior to said day, numerous chil- dren Uving in the neighborhood of said lands had frequently and habitually gone upon defendant's said lands, to the vicinity of said cistern, for the purpose of play and amuse- ment, all of which was known to defendant or could have been known by it in the exercise of reasonable care and ought to have been known, and the continuance of such use of said premises by children was and should have been an- ticipated by defendant; that the aforesaid dangerous con- dition of said premises, and the danger to small children of falUng into said unguarded cistern and drowning, or suffering injury, and the habitual use of said premises by small chil- dren, was well known to defendant. ^^* That on said day, plaintiff's minor son, J. B., then of the age of years, went upon said premises with other children for the purpose of play; that on account of the tender years of plaintiff's said son, he did not know or ap- preciate the dangerous condition of said premises, and while he with other children were playing in the vicinity of said cistern, plaintiff's said son accidentally fell into said cistern and was injured as hereinafter alleged. That the carelessness and the negligence on the part of the defendant, in failing and neglecting to fill up said cistern so excavated by it, or properly guarding the same, was the sole and proximate cause of the injury of plaintiff's said son. [For allegation of damage, see Form 983.] 258 The complaint originally alleged negligent in permitting his son to go that the habitual use by children was there to playj The court on the ap- "open and notorious"; defendant plication of plaintiff's attorney struck claimed that such allegation estab- out this allegation, lished the fact that plaintiff was 962 Abbott's Foems of Pleading 891. Against Both Owner and Occupant for Injury Caused by Explosion on Premises. [Complaint sustained in Jackman v. Lord, 56 Hun, 192, 30 N. Y. State Rep. 507, 9 N. Y. Supp. 200.] ''' I. That at the times hereinafter mentioned the defendant Y. Z. was the owner of premises known as number street, in the city of , and the defendant W. X. was in possession and occupancy thereof as lessee. II. That on or about the day of , 19 , the plaintiff was lawfully on the public highway known as street, when he was injtu-ed by being hit by some ob- ject thrown from said premises by an explosion of gas thereon, which explosion was caused by the negligence of the defend- ants, without any fault or carelessness on plaintiff's part. III. [Allege injury, as in Forms 973-980.] Wherefore [etc., demand of judgment]. 892. Injury Caused by Blasting, ^^o I. [Allege plaintiff's ownership of premises which have suffered the injury.] II. That defendant is a [contractor ^^^ and] engaged in 269 The court denied a motion by Where the injury is caused by ma- the defendant owner that the com- terial cast on plaintiff's property, the plaint be made more definite and cer- action is for trespass. Hall Sons Co. tairi by setting forth what act or neg- v. Sundstrom, etc., Co., supra. See lect, if any, on his part, was claimed Form 1063, under Trespass. A by plaintiff to have caused the ex- charge of negligence in such an ao- plosion of gas. tion is immaterial and may be treated ''°° Adapted from Page v. Dempsey, as surplusage. 189 N. Y. 245. Where the injury is If plaintiff was struck while on the caused by vibration, the gravamen of highway by flying objects from the the action is the negligence in doing blast, this would uphold an action the blasting, and in the absence of for nuisance, and defendant's care in proof thereof plaintiff cannot recover. operation would be immaterial. See Holland House v. Baird, 169 N. Y. Form 1064; Sullivan v. Dunham, 161 136; Hall Sons Co. v. Sundstrom, etc., N. Y. 290. Co., 138 App. Div. 548, 123 N. Y. ^ei in the precedent this was held Supp. 390, aff'd 204 N. Y. 660; Der- an immaterial allegation, where the rick V. Kelly, 136 App. Div. 433, 120 proof showed that the defendant was N, Y. Supp. 996. in actual direction of the blasting, though not as the contractor. Actions for Negligence 963 the removal of rock by blasting, and carrying away the fragments of such rock, from certain vacant premises [im- mediately adjoining on the east the plaintiff's said premises]. III. That defendant since about the day of , 19 , has been and still is, and threatens to con- tinue, conducting said blasting in a negligent and reckless manner, by overcharging, and by the use of imnecessary and unreasonable quantities of explosives, and causing and per- mitting said blasting by explosives of unnecessary and un- reasonable violence. IV. That defendant has already by his said negUgence caused extensive damage to the building on plaintiff's said premises, in that the walls thereof have become cracked [state injury according to the fact]. V. That defendant, if allowed to continue such blasting, will cause further damage for which plaintiff has no adequate remedy at law. VI. That plaintiff has heretofore sustained damage by reason aforesaid in the sum of dollars. Wherefore [demand of injunction and damages]. 893. Injury to Mere Licensee.^^^ I. [Allege ownership by defendant of premises.] II. [Allege facts showing defendants permission to plaintiff to go upon premises, as:] That on or about the day of , 19 , and for more than [twenty] years prior thereto, there was a thoroughfare or roadway, extending from a point on defendant's said premises at . and 2"^ Adapted from complaint in Fox censee for a mere defect in the V. Warner, etc., Co., 204 N. Y. 240; premises. the court held that to a mere hcensee See, also, on the question of the the owner of such premises owed only owner's liability, Beck v. Carter, 68 the duty to refrain from inflicting N. Y. 283; Cusick v. Adams, 115 id. wanton or intentional injury, and 55; Downes v. Elmira Bridge Co., to place nothing on his premises 179 id. 136; Reardon v. Thompson, in the nature of a trap by which a 149 Mass. 267; Corby v. Hill, 4 C. B. licensee would probably be injured. (N. S.) 556; Quinn v. Staten Isl. Rap. The owner is not liable to the li- Transit Ry. Co., 170 App. Div. 509, 156 N. Y. Supp. 568. 964 Abbott's Forms of Pleading running diagonally over and across said land to street; that continuously, for such period, with the knowl- edge and permission of defendant, said thoroughfare or road- way had been used by the general pubhc, particularly by pedestrians in the nighttime. III. That on said day defendant caused to be made a deep excavation directly across said thoroughfare, and negligently and intentionally permitted it to remain wholly unprotected by barriers of any kind, and not guarded by any hghts whatever; that as so made and left unguarded, said excava- tion constituted a trap for any person using said thorough- fare in the nighttime. IV. That on said day, and while it was so dark that plain- tiff was wholly unable to see said hole, plaintiff was with said defendant's permission crossing upon said thoroughfare, and was suddenly precipitated into said hole and thereby severely injured as hereinafter set forth. V. [Allege resulting injuries, as in Forms 973-980.] Wherefore [etc., demand for judgment]. 894. Against Owner, or Lessee of Wharf and Privileges, for Damages for not Keeping it in Repair. [From Radway v. Briggs, 37 N. Y. 256.] ''' I. That at the times hereinafter mentioned the defendants were the occupants [or, owners] and in possession of [here designate premises as thus:] the west side of pier No. , East river, and the bulkhead adjoining the foot of Old SUp, in the Borough of Manhattan, City of New York [under and by virtue of a lease from The City of New York], and as such owners [or, occupants] were bound to keep said west side of said pier, the bulkhead and stringpieces, in good and proper repair for the safety of teams, cart horses, merchandise and passengers passing to and fro thereon [and on the street bordering thereon]. II. That the said defendants, at the times hereinafter 2«' See, also, Quiim v. Staten Island R. T. Co., 170 App. Div. 509, 156 N. Y. Supp. 568. Actions for Negligence 965 mentioned, carelessly and negligently suffered said part of said pier in their possession to get out of repair, and especially that part of the stringpieces adjacent to the street, so as to render it unsafe and dangerous for teams to pass and repass on said part of said pier, and that the same, and the string- pieces thereon, were out of repair, defective and rotten, and that portion of the stringpiece on the west side of said pier, and adjacent to the street, was entirely gone [or otherwise, according to the fact]. III. That on or about the day of , 19 , by reason of the aforesaid negUgence and carelessness of the defendants in suffering said premises to remain out of repair, a valuable horse and cart and harness, with a load of merchandise, all of which belonged to plaintiffs, were, with- out fault or negligence on' plaintiffs' part, backed off said west side of 'said pier and precipitated into the East river; that the horse was drowned, the merchandise greatly dam- aged, the harness on said horse belonging to said plaintiffs destroyed, the cart damaged, and_the plaintiffs put to great trouble, inconvenience and expense in recovering said cart and merchandise and in removing the same, to their damage dollars. Wherefore [etc., demand of judgment]. 895. The Same, for Injuries to Vessel from Bad Bottom of Dock. [See Barber v. Abendroth, 102 N. Y. 406, aff'g 20 N. Y. Weekly Dig. 7, and Vrooman't;. Rogers, 132 N. Y. 167.] I. That, at the times hereinafter mentioned, plaintiff was, and now is, the owner of the canal boat known as the II. On information and belief, that defendant, at the times hereinafter mentioned, was owner or lessee of a dock at , in III. That on or about the day of , 19 , plaintiff, with said boat, bearing a cargo of consigned to defendant, and on or about o'clock in the 966 Abbott's Forms of Pleading noon arrived at the aforesaid dock of defendant with said boat and cargo. IV. That plaintiff, at the time above stated, moved his said boat, bearing its said cargo, at the proper place at said dock, and due care was taken by plaintiff to land said boat and cargo in the safest position to avoid damage and injury to the said boat, and that defendant then and there received said cargo. V. That the same night said boat so arrived there, the tide fell and left said boat resting upon the bottom or bed of said dock or basin, and upon the stones lying in the bottom of said basin at said dock. That said dock was not a fit or proper one, it being too shallow, and having a too stony and uneven bottom. VI. [Indicate injury, as thus:] That by reason thereof, and before said boat could be removed, the same, by setting upon such bottom, was sprung out of shape and made to leak badly, etc. VII. That said injuries were caused wholly by the negli- gence and want of care on defendant's part in not having the said bed or bottom of said dock in a fit and proper condition to receive plaintiff's said boat with the cargo thereon, "and, as plaintiff is informed and beUeves, defendant well knew the condition thereof, but nevertheless failed to notify the plain- tiff of the danger there existing, and that plaintiff had no knowledge of such condition previous to the aforesaid in- jury. VIII. That by reason aforesaid, plaintiff was compelled to and did put said boat upon a dry dock to be repaired, and that he has thereby necessarily inciured large expenses in repairing it, and lost the use of said boat for a long time, to his damage dollars. Wherefore [etc., demand of judgment]. Actions for Negligence 967 896. The Same, Allegation of Defective Construction of Wharf, whereby. Plaintiff's Horse was Lost. [Complaint sustained in Kennedy v. Mayor, etc., of N. Y., 73 N. Y. 365.] ^s* I and II. {As in preceding forms.] III. That such loss was sustained by reason of the negU- gence of the defendant in failing to have a stringpiece on said wharf, and that while plaintiff was backing up his cart for the purpose of loading the same with , his horse suddenly became unmanageable, and backed off the wharf iato the river and was lost. IV. That the plaintiff and his servants made every effort to prevent such accident and loss, but such efforts were unavailing. That if the said wharf had been properly secured by the necessary and customary stringpiece for the prevention of such accidents, such loss would not have occmred. 897. For Negligence of Mill Owners, whereby Plaintiffs' Land was Overflowed. ^^* I. That on the day of > 19 , the plain- tiffs were [and still are] the owners of a valuable mining claim [or, lands and mines thereon], situated at , upon which they had bestowed great labor in putting the same in working order, and had incurred large ^* It was held error to dismiss the ^'^ This form is sustained by Hoff- complaint at the opening of the trial, man v. Tuolumne County Water Co., on the ground that it appeared from 10 Cal. 413, and by Tuolumne County its averments that it was the unman- Water Co. v. Columbia, etc., Water ageability of the horses that caused Co., Id. 193. It is no objection that the loss; on the contrary, it appeared the respect in which the defendants that the absence of the stringpiece were negUgent ip described in the al- was the proximate cause. Kennedy temative. Whether the negligence V. Mayor, 73 N. Y. 365. Board, etc., was in one or another particular, it of Boone Co. v. Muchler (Ind.), 36 does not require separate coimta. N. E. Rep. 534, where plaintiff's com- Hoffman v. Tuolumne County Water plaint charged negligence in not pro- Co., supra; a. p., Gale v. Tuol- viding a bridge with railings, but also umne County Water Co., 14 Cal. showed that plaintiff's horse had 25. become frightened. 968 Abbott's Forms of Pleading expense in the purchase of tools for the purpose of extracting gold therefrom. II. That at the same time the defendants were engaged in furnishing water to miners and others, by means of a ditch or canal, and they were the owners of [or, were possessed of, and using] a reservoir situated on , wherein they col- lected a large body of water, which water would otherwise have flowed down the said stream. III. That on or about said day, the plaintiffs being engaged in the prosecution of their work as aforesaid, the defendant's said reservoir by reason of some defect in its construction, insufficiency for the purpose for which it was constructed, or carelessness and mismanagement on the part of the defendants, broke away, discharging an immense and unusual body of water, which defendants had collected in said reservoir; that said water so discharged flowed in and upon plaintiffs' mining claim [or, lands and mines], fiUing the same with great quantities of earth, stone and rubbish, and carrsdng off and destroying the Imnber and tools used by the plaintiffs in working and mining the same, to plaintiffs' damage dollars. Wherefoee [etc., demand of judgment]. VII. MASTER AND SERVANT ^^s [Actions against railroads, by employees based either upon '^ As a general proposition of But the employee may charge pleading, it is not sufficient in this generally that the defendant em- action against the master, to merely ployer was negligent in not providing allege that plaintiff employee was a safe place to work, and in not pro- injured solely by defendant's negli- viding safe and proper tools and ap- gence; while plaintiff may allege in pUances, and that he furnished tools general terms the breach of some and appliances that were not suitable legal duty owed by the master, the for the purposes for which they were act or omission causing the injury used; these general charges are con- must be alleged, as well as facts elusions of fact, rather than of law, showing that the defendant's breach and the complaint would not be of duty related to it. Pagnillo v. subject to demurrer. A motion to Mack Paving & Constr. Co., 142 have the complaint made more def- App. Div. 491, 127 N. Y. Supp. 72. inite and certain, or for a bill of Actions for Negligence, 969 the Federal Employers' Liability Act, or the New York Railroad Law, are given in this chapter under the division "Against Railroad Company"; there are also included in that division some other actions by employees, under cir- cumstances peculiar to the relations involved in that em- ployment. This section of the chapter is subdivided as follows: (a) Workmen's Compensation Law; (b) State Employers' LiabiUty Law; (c) other actions under other statutes, and under the common law.] ^"^ (a) Workmen's Compensation Act ■Note on the effect of the New York Workmen's Compensation Law, on the action for negligence by an employee engaged in one of the occupations embraced within the law: The present statute is constitutional; ^^^ the remedy pro- vided is exclusive, and the employee's action for neghgence is barred, whenever the statute affords compensation for the injury complained of,^''' provided the defendant employer particulars, should be granted to the App. Div. 876, 158 N. Y. Supp. 1043; extent of requiring plaintiff to dis- Connors v. Semet Solvay Co., 94 close in what respect the place to Misc. 405, 159 N. Y. Supp. 431. work was unsafe, or the tools and Even though the provision for com- ^.ppliances unsafe and unsuitable. pensation does not include all persons See Hoareau v. Schwartzkopf, 142 who would have been entitled to re- App. Div. 69, 126 N. Y. Supp. cover damages prior to the passage 448. of the act. Shanahan v. Monarch 2" The pleader must appreciate Eng. Co., 219 N. Y. 469. No action whether his action is based upon the will lie for reimbursement for medi- common law, or upon some extension cal and hospital expenses. Semmen of the master's common-law liabiUty. v. Buttorick Pub. Co., 101 Misc. 285. In order to invoke a hability de- If there is no provision for com- pendent upon a statute, it is essen- pensation for an injury of the char- tial that such requirements as may acter received by the employee, it is be contained in it, respecting notice, held that his common-law action is etc., be complied with, and such not barred. Shinnick v. Clover compliance is an essential allegation Farms Co., 169 App. Div. 236, 154 in the complaint. N. Y. Supp. 423: The particular in- ^ Matter of Jensen v. So. Pac. juries enumerated in the schedules R. Co., 215 N. Y. 514. are not exclusive. Wagner v. Am, 269 Wagner v. Am. Bridge Co., 172 Bridge Co., supra. 970 Abbott's Foems of Pleading has complied with the provisions of the act for securing the payment of compensation.^^" If the employer has failed to secure such payment of compensation, in the way required, then the employee has an election, either to bring his action for negligence, or to claim compensation under the statute; "^ an election once made, intelhgently and with knowledge of the facts, is final. 2" If the employee elects to bring his action, he is relieved from either pleading or proving his freedom from contributory negligence, and the employer is deprived of the defenses of contributory negUgence, plaintiff's assumption of risk, and that the injury was caused by the negUgent act of a fellow servant; "^ but a charge of defendant's negligence is still essential. ^■'^ If the contract of employment is made within the state, the statute appUes notwithstanding the work is to be done outside of the State. ^" If the employee was engaged in interstate commerce work when injured, the Federal Employers' Liability Act, and not the State Compensation Law, covers his claim. ^'^ If the complaint does not allege or show that plaintiff was engaged in an employment covered by the statute, or that defendant was engaged in hazardous work as described in the statute, the question of the application of the statute to plaintiff's rights is not presented.^" If injured by the neghgence of a third person, under such circumstances that the employee may still claim compensa- tion under the act, he may elect either to sue the third per- 270 Winter v. Doelger Brewing Co., 275 Matter of Post v. Burger & 175 App. Div. 796, 162 N. Y. Supp. Gohlke, 216 N. Y. 544; Matter of 469. Klein v. StoUer & Cook Co., 220 id. "1 Section 11 of the statute. 670. 2^2 Pavia V. Petroleum Iron Works "' Matter of Winfield v. N. Y. Co., 178 App. Div. 345, 164 N. Y. Central, etc., R. Co., 216 N. Y. Supp. 790. 284. 27' Section 11 of the statute. "' Nilsen v. Am. Bridge Co., 221 '"* Lindebauer v. Weiner, 94 Misc. N. Y. 12. 612, 159 N. Y. Supp. 987. Actions for Negligence 971 son, or seek an award; if he brings his action, it is not neces- sary to specifically allege his election so to do.^'^ 898. Complaint by Employee Engaged in an Occupation Within the Application of the Workmen's Compensa- tion Law.^^' [State cause of action, as in any one of the forms following under this head of Master and Servant.] ^^° [Allegation of defendant's failure to secure payment of com- pensation as required by the statute, as follows:] That defendant has failed to secure the payment of com- pensation for his injured employees, and their dependents, as provided by § 50 of the Workmen's Compensation Law of this State (constituting Chapter 67 of the Consolidated Laws), and that plaintiff has elected to maintain this action for damages on account of his aforesaid injury. Wherefore [etc., demand for judgment]. (b) New York Employers' Liability Act ^^^ This statute creates a new cause of action in favor of the ""* Lester v. Otis El. Co., 169 App. tiff's freedom from contributory Div. 613, 155 N. Y. Supp. 524. negligence (§ 11 of statute). ^" See the general note on the ef- If the injury was caused by the feet of this law, ' immediately pre- neghgent act of a fellow servant, ceding this form. the neghgence should be charged as ^ It is essential to show that the that "of the defendaftt," and the hiring occurred within this State; forms hereinafter given based on the but it is not essential that the place employer's common-law liability for for the doing of the work should be the act of an incompetent fellow within the State. Matter of Post v. servant need not be followed; the Burger & Gohlke, 216 N. Y. 544. statute makes the feUow servant an ■ The statement of the character of alter ego of the master who omits to the defendant's business, and of the secure compensation, and fastens character of the plaintiff's employ- liability upon him regardless of the ment, should disclose that fhe provi- incompetency of the fellow servant sions of the law apply. and regardless of the master's own It is necessary \o allege that the negUgence in the employment or injury was caused by defendant's retention of such fellow servant, negligence (Lindebauer v. Weiner, (Section 11.) 94 Misc. 612, 159 N, Y. Supp. 987), «" Labor Law, §§ 200 et seq., as but it is not necessary to allege plain- amended by L. 1910, c. 352. 972 Abbott's Forms of Pleading servant against the master. ^*^ It does not, however, bring under its operation and subject to its requirements causes of action recognized at common law, or provided for by in- dependent statutory provisions.^*^ It is not necessary in order to plead a cause of action under the statute that its precise language be used; it is only neces- sary that it appear from the facts alleged that the cause of action is within its provisions, and that the notice required by the act has been duly served. ^'^ A complaint may commingle in one count allegations of separate acts of negligence, some constituting negligence at common law and others showing a liabiUty under this statute; plaintiff should not be compelled to separately state the common-law action and the action under the statute. ^*^ The negligent act of the superintendent, or person in authority, may have been such as would ordinarily be per- forn\ed by a fellow servant, but the master is Uable under the statute. ^*^ 899. General Form Under the Statute. ^^^ I. That at the times hereinafter mentioned, at , in the County of , and State of New York, defend- ant was 'engaged in the business of [state], and that on and 2*2 Harris!). Baltimore, etc., Works, ^'^Aoardo v. N. Y. Contr., etc., 188 N. Y.,141^ Uss V. Crane Co., 138 Co., 116 App. Div. 793, 102 N. Y. App. Div. 256, 123 N. Y. Supp. 94. Supp. 7. But plaintiff may allege 2*' Gmaehle v. Rosenberg, 178 the facts in two separate counts if N. Y. 147. he so desires. MuUigan v. Erie R. 28* Harris v. Baltimore, etc.. Works, Co., 99 App. Div. 499, 91 N. Y. suyra. Nevertheless the cause of the Supp. 60. accident must be one for which the ^^e Pelow v. Oswego Constr., etc., defendant is liable under the statute. Co., 217 N. Y. 506. Simpson v. Foundation Co., 132 App. ^'^ See, generally, as to the suf- Div. 375, 116 N. Y. Supp. 878. ficiency of the allegations of the Where the cause of action is pleaded complaint to present a cause of ac- and tried as one at common law, the tion under the statute, Harris v. Bal- plaintiff cannot invoke the benefit timore, etc., Works, 188 N. Y. 141; of the provisions of this statute. Hope v. Scranton, etc., Coal Co., Welch V. Waterbury Co., 136 App. 120 App. Div. 595, 105 N. Y. Supp. Div. 315, 120 N. Y. Supp. 1059." 372. Actions for Negligence 973 prior to the day of , 19 , plaintiff was in the employ of the defendant as a [state capacity in which plaintiff was employed]. II. [If the injury resulted from a direction given plaintiff in connection with his work:] That on the said day of* , 19 , plaintiff was directed by the defendant, and by a person entrusted by the defendant with authority to direct, command and control plaintiff in the performance of his work, to [state the character of the direction in the following out of which plaintiff was injured]. III. [Allege the way in which the injury was received.] ^^^ TV. That such injury to plaintiff was due wholly to the negligence of the defendant and those entrusted by him with authority to direct, control and command the plaintiff in the performance of his work, and those entrusted by de- fendant with the duty of seeing that the defendant's ways, works, machinery and plant were in proper and suitable condition, in the following respects : [state briefly the character of the negligence and defects complained of.] ^*' V. [Allege injuries as in Forms 973-980.] VI. That in compUance with the requirements of § 201 of the Labor Law, and before the commencement of this action, and within one hundred and twenty days after the injury to plaintiff was received as hereinbefore set forth, to wit, on or about the day of , 19 ,^^'' plaintiff caused to be duly served upon the defendant a notice in writing in accordance with the requirements of said section, and stating the time, place and cause of the injuries received by plaintiff [a copy of which notice is here- imto annexed and made a part of this complaint].^" ^ Illustrations are given in the notice. Uss v. Crane Co., 138 App. forms immediately following. Div. 256, 123 N. Y. Supp. 94. ^' See illustrations in succeeding *"' Service of this notice is a condi- forms, as well as in the forms under tion precedent to maintaining the subdivision (c), Actions under the action under the statute. Dailey w. Common Law and Other Statutes. StoU, 211 N. Y. 74. Compliance ™ Plaintiff may be required to therewith must be affirmatively allege the date of the serving of the pleaded, or the complaint is defective. 974 Abbott's Froms of Pleading VII. That this action has been commenced within one year from the day on which plaintiff received his aforesaid injury. ^^^ Wherefore [etc., demand for judgment]. . 900. Negligent Direction to Plaintifif by Person Intrusted by Defendant with Authority.^'' I. That defendant was engaged on the day of ,19 , in [grading and paving a certain street in the city of Albany, known as Delaware avenue;] II. That on the said day of , 19 , the plaintiff was employed by the defendant in connection with its work in grading and paving said Delaware avenue; that the plaintiff while so employed was engaged [with a wagon and team of horses drawing dirt to be unloaded to fill in and grade the said street and places adjacent thereto]. Nielsen v. Just Co., 169 App. 579, 155 N. Y. Supp. 442; Johnson v. Roach, 83 App. Div. 351, 82 N. Y. Supp. 203. The paragraph, as given in the form, is supported by Amberg v. Kinley, 160 App. Div. 232, 145 N. Y. Supp. 394, affd 214 N. Y. 531; Harris v. Baltimore, etc., Works, 188 N. Y. 141. The fact that an amplified claim was served, after action begun, and on defendant's demand therefor, does not defeat the action. Oswald V. Underpinning, etc., Co., 159 App. Div. 684, 144 N. Y. Supp. 843. The amendment of 1910 provided that notices of claim should not be invalid because of inadvertent in- accuracies, which had not misled, and the employer must demand a further notice or he waives all defects; this amendment supersedes the many decisions under the statute as orig- inally enacted, turning on the suf- ficiency of the notice. See Oswald v. Underpinning, etc., Co., supra. Plaintiff may not prove acts of negligence other than specified in "his notice. Carron v. Standard Re- finidg Co., 138 App. Div. 723, 123 N. Y. Supp. 682. Service of the notice within the time limited may be waived by the employer. Wolven v. Gabler, 132 App. Div. 45, 116 N. Y. Supp. 359. In case plaintiff claims such a waiver, he should set forth the facts upon which the waiver is to be predicated; an allegation that the notice had been duly served would not permit proof of any waiver of due service. See page 26, and notes. ^'^ That this allegation must be included in the complaint seems to have been held or strongly sug- gested in Balke v. Otis El. Co., 177 App. Div. 499, 164 N. Y. Supp. 287. ^"^ The fellow servant defense is not available where the injury was caused by the negUgence of such an employee. Such is the effect of the statute. See O'Connor v. Stewart, 93 Misc. 586, 158 N. Y. Supp. 485. Actions for Negligence 975 III. [Describe method of doing the work, if relevant, as:] That the method of unloading the du"t from the wagon upon which the plaintiff was engaged was to back the wagon up to a place where the same was to be unloaded and for other persons in the employ of the defendant to unload the dirt therefrom. IV. That while so engaged the plaintiff, through the negligence of the defendant, and that of its employees in- trusted by said defendant with the duty of superintendence and with authority to direct, control and command the said plaintiff in the performance of his said duty, and was di- rected to back the wagon to a certain place, and while doing so the said wagon and horses attached thereto fell down into a deep hole, the existence of which was unknown to the plaintiff and well known to defendant, and the said wagon was overturned and the horses thrown, and the plaintiff was dragged and thrown and was caught under the said wagon and horses and suffered and received the injury hereinafter set forth. V. That said accident happened through the negligence of the defendant, and that of its employees intrusted by it with the duty of superintendence and with authority to direct, control and command the plaintiff in the performance of his duties,- in the following respects: (a) In faiUng to properly and adequately instruct the plaintiff and warn him of the danger in connection with said work; (b) in failing to inform the plaintiff of the existence of said hole; (c) in faihng to properly and adequately superintend the work of unloai^ing the said wagon; (d) in directing the plaintiff to back the said wagon to the place where the said hole was, and into said hole; (e) in failing to provide the plaintiff with a safe place in which to work; (f) in failing to provide a competent superintendent to supervise and control the doing of the said work.^'* ^''t From MiUer v. North Hudson Contr. Co., 166 App. Div. 348, 152 N. Y. Supp. 22. 976 Abbott's Forms of Pleading [VI, VII and VIII as in Form 899.] Wherefore [etc., demand of judgment], 901. Failure to Furnish Proper Equipment. I. That ^n , 19 , plaintiff was in the employ of the defendant, performing such work as he was ordered to do by defendant, its agents and superintendents. II. That on said date while driving a truck with a team of horses, carrying certain steel columns which had been loaded on said truck by defendant, the columns fell from the truck and caused plaintiff to fall therefrom as a result of which he received the injuries hereinafter alleged. III. That such injuries were caused by the negligence of defendant, its superintendent, and persons in its employ intrusted with authority to direct defendant's employees in their work, in the following respects: (1) in furnishing to plaintiff defective ways, works and plant; (2) and in faiUng to furnish plaintiff with a safe and proper place and with proper and suitable means to do his work.^'^ .IV. [Allege injury as in Forms 973-980.] V. [Allege notice as in Form 899.] VI. [As in Paragraph VII of Form 899.] 902. The Same, Allegation of Defects in Apparatus for Operating Mine.^'" III. That plaintiff's said injuries were caused by reason of defects in the condition of the ways, works, machinery or ''syTrom complaint in Green v. received no wages directly from the McMullen, etc., Co., 177 App. Div. defendant. 771, 164 N. Y. Supp. 948, where a 290 pj-om McNamara v. Logan, 100 judgment for plaintiff was affirmed. Ala. 187, 14 So. Rep. 175, where it It was shown that the defendant was held that the paragraph was not hired teams and drivers from another objectionable on the ground that it person, and placed them under the states more than one cause of action; control and direction of his foreman; nor should plaintiff have been re- held that the relation of employer and quired to state the name or position employe existed within the meaning in the service of the person intrusted of the Labor Law, though the driver by defendant to look after the ma- chinery. Actions fob Negligence 977 plant connected with or used in said business of defendants, to wit, said cars were defective; said cross entry was defec- tive; that said defects arose from, or had not been discovered and remedied, owing to the negUgence of defendants, or of some person in the service of the defendants, and intrusted by them with the duty of seeing that the said ways, works, machinery and plant were in proper condition. (c) Othee Actions under Other Statutes, and under THE Common Law It is important for the pleader to remember that the forms under this subdivision are not framed to comply with the requirements of the N. Y. Employers' Liability Act, although many of them state facts that are sufficient to sustain an action under such statute. In case the benefits of that statute are to be invoked, the additional allegations required must be carefully included. See subdivision (b) supra. 903. Unsafe Place to Work; Injury Caused by Fall of Materials. [Action sustained in Daly v. Schaaf, 28 Hun (N. Y.), 314.] 2" I. That on or about the day of , 19 , and prior thereto, the defendant was the contractor for the erection of a certain building known as No. ' street, in the city of , and as such contractor had the full and exclusive charge, management and control of said build- ing, and of the work thereon.^'* II. That on or about the said day of , 19 , plaintiff was employed by the defendant as a workman '^ In this case it appeared that the "'* A complaint is demurrable which falling of the bricks was caused by neither shows defendant to be the the carelessness of a fellow servant, owner, nor to have had the exclu- but as it also appeared that the mas- sive control in furnishing materials, ter had assured the employee that devising plans and erecting the there was no danger, the court sus- building. HoUenbeck v. Winnebago tained a recovery for plaintiff. County (lU.), 10 Rep. 101. 978 Abbott's Forms op Pleading in and about the erection of said building, and it was the duty of the defendant to provide a good, safe and secure place for plaintiff to perform his work in said building, with a good, safe and secure covering over the place where plain- tiff was at work. III. That yet, the defendant, not regarding his duty, con- ducted himself so carelessly, negligently and unskillfuUy, in this behalf, that he provided an insecure, defective and un- safe place for plaintiff to perform his work in said building, in that he did not place proper and sufficient covering over the place where plaintiff was at work to prevent bricks, or pieces of brick, from falling down upon plaintiff. IV. That for want of due care and attention to his duty in that behalf, on the day and at the place aforesaid, while plaintiff was working in the cellar or basement of said build- ing as a workman for the defendant, as aforesaid, a brick fell from the fourth story of said building, and by reason of the aforesaid unsafeness, defectiveness and insecurity of the said place where plaintiff was at work, and the absence of a proper and sufficient covering over the place where plaintiff was so at work, said brick struck plaintiff on the head, whereby [stating injury; see Forms 973-980]. V. That said defendant had due and proper notice of the danger of plaintiff, and was duly requested and notified to provide such covering, guard or protection. [VI. That the said injuries were sustained and brought about without any fault or want of care or negligence on the part of the said plaintiff.] Wherefore [etc., demand of judgment]. 904, The Same, Fall of Building Through Overloading Floors.2'9 I and II. [Adapt from Form 903.] III. That said defendant, prior to the day of , 19 , negligently and carelessly placed, heaped 29' Adapted from complaint in Weekly Dig. 181, where the action Metzger v. Herrman, 12 N. Y. was sustained. Actions for Negligence 979 and stored such large quantities of heavy material in an upper floor of said building, the weight of which said floor could not bear or carry, all of which said defendant well knew, so that in consequence of the great weight placed on said floor through the negligence of said defendant as afore- said, and owing to the defective condition of the girders and beams thereof, and which the defendant knew and negli- gently omitted to repair, said floor and the girders or beams that supported and upheld the same, broke, so that the said heavy material aforesaid fell to the floor below and upon plaintiff, where he was then and there at work as aforesaid. IV. That plaintiff had no knowledge or information of the quantity of wood and material, nor of the great weight placed on said floor through the recklessness of said defend- ant as aforesaid, nor of the defective condition of said girders and beams, and that plaintiff was injured without negligence or carelessness on his part, but solely through the aforesaid negligence of said defendant. V. [Allege injury; see Forms- 973-980.] Wherefore [etc., demand of judgment]. 905. The Same, Fall of Overhanging Bank.^e" [Sustained in Baccelli v. New England Brick Co., 138 App. Div. 656, 122 N. Y. Supp. 856.] ^" I. That on the day of , 19 , plaintiff was employed by the defendant as a day laborer in mining and taking clay from the defendant's clay bank. II. That the defendant had caused large quantities of clay and earth to be excavated from the clay bed and had thereby constructed and maintained a vertical wall or side about fifty feet high; that said bank had near the top thereof an overhanging face of clay and earth which had several fis- ''" This fonn does not intend to a precedent where such is the situa- cover a situation where the employee tion see Form 913. has made, or has been steadily as- '"^ See, also, Finn v. Cassidy, 165 sisting in making, the condition N. Y. 584, Form 911. which has caused his injury. For 980 Abbott's Foems of Pleading sures running through it, and was in danger of falling any moment. III. That thereafter, OiJid while the said sides or wall and face were in such dangerous condition, the defendant negli- gently required and directed plaintiff to work at the foot of said side or wall and directly under said overhanging face of clay and earth. IV. That defendant was then and there informed of the dangerous condition of said wall, and requested to remove said overhanging face, but negligently omitted so to do, and assured plaintiff that it was safe for him to work thereunder. V. That thereupon plaintiff, having no knowledge of such dangerous and unsafe condition, and relying upon said as- surance of defendant, did enter said excavation and work at the foot of said wall directly under said overhanging face of clay and earth in accordance with defendant's directions aforesaid; that immediately and while plaintiff was so work- ing, and in the exercise of due care on his part, the said overhanging face of clay and earth gave way and fell upon plaintiff, and in consequence thereof, he was injured as hereinafter set forth. VI. That the plaintiff's injuries were caused by the negli- gence of the defendant, in that the defendant failed to pro- vide a safe place to work, in constructing and maintaining said overhanging face of clay and earth, in assuring^plaintiff's intestate that it was safe to work thereunder and in omitting to inspect and examine the wall and the overhanging face. VII. [Allege injuries; see Forms 973-980.] [Notice to defendant, etc., if recovery sought under Em- ployers' Liability Act; see Form 899.] ^"^ Wherefore [etc., demand of judgment]. 906. The Same, Negligent Construction or Operation of Mine, Servant being Ignorant. I. That defendant is a corporation organized and existing '"^Such a clay bank is to be re- Co., 133 App. Div. 483, 117 N. Y. garded as "works" within the mean- Supp. 1072. ing of that act. Palin v. Gary Brick Actions for Negligence 981 under the laws of the State of , and at the times hereinafter mentioned was operating a mine known as the Mine, at in the State of ; and that in the month of , 19 , plaintiff was in the employ of defendant as a miner, and worked in said mine. II. That in the operation of its said mine, defendant main- tained a shaft down to and a tunnel in said mine, and plain- tiff, during the course of his said employment, was obliged to pass down said shaft and work within said tunnel. III. That said tunnel was negligently and carelessly con- structed and maintained, and the roof or arch thereof was improperly and negligently supported; and that while plain- tiff' was at work therein, and in ignorance of such improper construction and negligent support, and without fault or negligence on plaintiff's part, the; roof or arch of said tunnel gave way and fell upon plaintiff. [Or, where the injury was caused by fall of material from wall:] III. That while plaintiff was so engaged at work in said tunnel, and on or about the day of , 19 , a large rock fell from the side wall, or roof, or other portion of said tunnel upon plaintiff; that such rock was permitted to fall solely by reason of the negligence of defendant in [not having the condition of the walls and roofs properly inspected and fissures or cracks therein discovered and the walls at such places supported — or otherwise according to fact]. TV. [Allege damages as in Forms 973-980.] Wherefore [etc., demand of judgment]. 907. The Same, From Fall of Skylight. [Sustained in Shaw v. Feltman, 121 App. Div. 597, 106 N. Y. Supp. 1043.] I. [As in Form 903.] II. That defendant, prior to the time hereinafter men- tioned, negligently and carelessly permitted a skylight, and the frame thereof, and the glass therein, forming part of the permanent construction of defendant's building at number street in said city of , to become in a weak, 982 Abbott's Fokms of Pleading ruinous and defective condition [may state details,^^ as: by reason of the framework having rotted and the putty holding the glass in the frames having fallen or loosened — and state any other possible cause] so as to be extremely dangerous to the hfe and limb of persons under the same. III. That defendant well knew of the defective and dan- gerous condition of said skylight, but that plaintiff was al- together ignorant thereof. IV. That on or about the day of > 19 , while plaintiff, in the course of his emplojonent as aforesaid, was in said building and necessarily under said skylight, and, without fault or negligence on his part, said skylight and the glass therein gave way and fell with great violence upon plaintiff. V. [Allege injury and damage, as in Form,s 973-980.] Wherefore [etc., demand of judgment]. 908. The Same, from Fall of Scaffold. '"^ [Under N. Y. Labor Law, § 18.] ""^ ™' No details would be necessary nate the question of negligence on in order that the complaint be suf- the part of the employer, and puts ficient as against a demurrer. Shaw on the employer and not the em- V. Feltman, supra. But a motion to ployee the risk of a defective scaf- have it made more definite and cer- fold or staging. The section lays tain would probably be granted, and upon the employer a positive lia- a bill of particulars showing in what bility in case the scaffold or other ways the skylight and its parts were apphance within its application was defective would be ordered. Burke not reasonably safe and suitable; V. Frankel, 95 App. Div. 89, 88 N. Y. he does not escape from this liability Supp. 517. because of his own ignorance, or ™'' The first case applying this because of the carelessness of his statute is Stewart v. Ferguson, 164 employees in constructing it. See N. Y. 553; in this case, both in the Caddy v. Inter. R. T. Co., 195 N. Y. Court of Appeals and in the Appellate 415. Division in the same action (par- See next form for precedent when tioularly 34 App. Div. 515, 54 N. Y. the scaffold has been furnished by Supp. 615), may be found a discus- the general contractor, and used by sion of the rules of the common law employees of sub-contractors, with regard to the employer's lia- See Form 910, for a precedent bility, and the effect thereon of this for use in States where the common- statute, law liability remains unchanged. The result of the statute is to elimi- ">^ Amended by L. 1911, ch. 693. Actions for Negligence 983 I. That at the times hereinafter mentioned defendant was engaged in the erection [or, repair — or, painting — or, altera- tion] of a building ^"^ [describe briefly, as] at the corner of and streets, in the city of ; * that plaintiff at said times was in the employ of the defendant as [a painter] and was working upon said building. II. That on and prior to the day of , 19 , defendant negUgently furnished to the plaintiff a scaffold [or, ladder — or other mechanical contrivance within the section],^"'' which was unsafe, unsuitable and im- proper, and which was not so constructed as to give proper protection to the life and limb of a person using the same.'"* III. That on said day of , 19 , while plaintiff in the performance of his said work was upon said scaffold, the same broke and fell,^"' and plaintiff was thrown ™ The statute also covers "struc- tures"; as to what is a structui'e within the statute see Caddy v. Inter. R. T. Co., supra; Chaffee v. Union Dry Dock Co., 68 App. Div. 578, 73 N. Y. Supp. 908. 307 What is a scaffold or other me- chanical contrivance within the stat- ute, see Convey v. Finn, 130 App. Div. 440, 114 N. Y. Supp. 864; Sutherland v. Ammann, 112 App. Div. 332, 98 N. Y. Supp. 574, aff'd 190 N. Y. 514. The Labor Law re- quires not only that such contrivances be of themselves safe and secure, but that they shall be so constructed, placed and operated as to give proper protection. Coleman v. Rug- gles-Robinson Co., 159 App. Div. 268, 144 N. Y. Supp. 272, aff'd 213 N. Y. 683. ™It is not necessary to plead or refer to the statute; an allegation that the scaffold was unsafely con- structed is sufficient. RUey v. Mc- Nulty, 115 App. Div. 650, 100 N. Y. Supp. 985; Haggblad v. Brooklyn Heights R. Co., 117 App. Div. 838, 102 N. Y. Supp. 1039. 3<» The fan of the scaffold, in the absence of evidence of other pro- ducing cause, points to a neglect of duty under the statute. Huston v. Dobson, 138 App. Div. 810, 123 N. Y. Supp. 892. Plaintiff is not required to prove any defect; the defendant, however, may prove that there was no defect, and that the breaking was caused by the negh- gence of a fellow servant. Lorenzo V. Faillace, 132 App. Div. 103, 116 N. Y. Supp. 326. If the fall of the scaffold has been alleged to have been caused by the breaking of a rope "which was defec- tive, and was old and worn out," this allegation permits proof that although the rope was comparatively new it was in bad condition. Summo V. Snare & Triest Co., 166 App. Div. 425, 152 N. Y. Supp. 29. 984 Abbott's Forms of Pleading therefrom and fell a distance of some feet, sustaining the injuries hereinafter mentioned. IV. That the breaking and falling of said scaffold was caused by the aforesaid neghgence of the defendant in fur- nishing un unsafe and unsuitable scaffold as aforesaid. V. [Allege injuries resulting, as in Forms 973-980.] VI. [Allege notice to defendant, as in Form 595.]"° Wherefore [etc., demand for judgment]. 909. The Same, Scaffold not Furnished by Plaintiff's Employer. I. [As in preceding form to * ]; that one M. N. was a sub- contractor of the defendant, and engaged in doing the work of '[state particular part of the work he was doing] upon said building, and plaintiff was employed by said M. N. as [a painter— or otherwise] and was at work on said building. II. That the defendant prior to the day of , , 19 , furnished a scaffold [or other appliance within the section] within said building for the use of the employees of said M. N., including plaintiff, and the same was so located by defend- ant that said M. N. and his employees including plaintiff of necessity and for reasonable convenience in the performance of his portion of the work upon said building, used the same, and that defendant knew and consented to such use and furnished the scaffold therefor.^^^ [///, IV, V and VI as in preceding form.] Wherefore [etc., demand for judgment]. "' It will be necessary to invoke Act does not apply. Gmaehle v. the Employers' Liability Act only Rosenberg, 178 N. Y. 147; Williams where plaintiff is relying upon some v. RobUn, 94 App. Div. 177, 87 N. Y. direction, relating to his use of the Supp. 1008. scaffold, by a person who at common '" Adapted from Quigley v, law would be only a fellow servant, Thacher, 207 N. Y. 66. So a sub- but under that act is made a repre- contractor may be held liable to an sentative of the employer. The employee of a general contractor, or notice is not necessary where the of another sub-contractor, who was complaint merely charges the em- invited to use a scaffold furnished by ployer with furnishing a defective the former. Huston v. Dobson, 138 scaffold, the Employers' Liability App. Div. 810, 123 N. Y. Supp. 892. Actions for Negligence 985 910. The Same, Under Common-Law Liability.^^^ [Adapted^ from DevUn v. Smith, 89 N. Y. 470, 11 Abb. N. C. 322.] "3 I. [As in Form 90S.] II. That prior to the day of , 19 , defendant erected or caused to be erected in the , a scaffold upon , for the purpose of enabling workmen to paint said building; that said scaffold was upwards of [ninety] feet in height; that the defendant knew the use to which said scaffold was to be put, and it became and was his duty to erect, or cause to be erected, a proper and safe scaffold, upon which men could work in safety; but not re- garding his duty in that behalf, he erected, or caused to be erected, a portion of such scaffold in a negUgent and im- proper manner, and unfit for the uses to which it was to be put. III. That on or about said day of , 19 , plaintiff, a painter by trade, had been employed by de- fendant to assist in painting said building, and went upon said scaffold pursuant to his employment; that while so en- gaged in discharging his said duties, and necessarily standing upon said scaffold, and without any fault or neghgence upon his part, but solely owing to the aforesaid • neghgence of defendant, said scaffold gave way, and plaintiff was thereby precipitated a great distance below. . IV. [Allege injury and damage, as in Forms 973-980.] Wherefore [etc., demand of judgment], "2 See Form 908, for use in New but Stevenson was held liable with- York under the Labor Law, and out privity of contract with plaintiiT, note explaining the effect of the for the thing was imminently danger- statute in extending the common ous; and see Parry v. Smith, 16 law liabihty. L. T. R. (N. S.) 93. Compare Schu- '" In this case, however, it appear- bert v. J. R. Clarke Co. (Minn., 1892), ing by the evidence that Smith was 51 N. W. Rep. 1103; Heaver v. the sole employer, and had procured Pender, L. R., 11 Q. B. D. 503; the co-defendant Stevenson to build Mulchey v. Methodist, etc., Soc, the scaffold, Smith was held not 125 Mass. 487. liable without notice of the defect, 986 Abbott's Forms of Pleading 911. The Same, Master Having been Requested to Guard Against Threatened Danger, but Giving Assurance of Safety,^'* or Promise to Remedy Defect.'^* I. [Allege defendant's operation of mine and plaintiff's em- ployment, as in Form 906.] II. That directly above the place where plaintiff worked in said mine was an overhanging cliff or rock, which had several fissures running through it, and was in imminent danger of falling at any moment. III. That defendant was then and there informed of the dangerous condition of said rock, and was requested to re- move the same, but negligently omitted so to do and assured plaintiff that it was safe for him to continue to work there- under [or, promised that said rock should be removed within a reasonable time]. IV. That relying upon said assurance [or, induced by said promise to remove said rock], plaintiff continued to work under said rock, but that in consequence of defendant's said omission, and without fault or negligence on plaintiff's part, thereafter, to wit, on or about the day of 19 , said rock fell upon plaintiff. V. [Allege damage as in Forms 973-980.] 912. The Same, Danger which was of Plaintiff's Risk, but Enhanced by Defendant's Neglect, Plaintiff Being Ignorant of Unusual Danger."* I. [Allege defendant's ownership and operation of mine as in 3" See Leddy v. Carley, 78 Misc. Co., 115 App. Div. 739, 100 N. Y. 546, 139 N. Y. Supp. 227, and cases Supp. 1054, aff'd 193 N. Y. 623. cited. See also notes to Form 921. "' Under such circumstances the ^'» Action sustained in Trihay v. employee is justified in remaining Brooklyn Lead Co., 4 Utah, 469. at his work for such time. Rice v. If defendant's neglect consists in the Eureka Paper Co., 174 N. Y. 385; non-performance of some statutory Citrone v. O'Rourke Eng. Const. duty, the doctrine of assumption of Co., 113 App. Div. 518, 99 N. Y. obvious risks wiU not be applied when Supp. 241, rev'd on another point in such neglect is the cause of the in- 188 N. Y. 339; Tannhauser v. Upti- jury. Fitzwater v. Warren, 206 grove, 114 App. Div. 764, 100 N. Y. N. Y. 355; Welch v. Waterbury Co., Supp. 245; Swarts v. Wilson Mfg. id. 522; N. Y. Labor Law, § 202. Actions for Negligence 987 Form 906, and continue as thus] and plaintiff then was, and for some time previous had been, in the employment of defend- ant as one of a number of timber men, and in his service as such was required to enter newly-worked drifts and stopes, for the purpose of securing the same with braces and timbers for the protection of said mine and the security of defend- ant's officers and servants. II. That at the time hereinafter mentioned, and for some weeks . prior thereto, defendant, by its servants and em- ployees, was and had been at work excavating in a certain stope in said mine, and that the ground in which said work was proceeding was very heaA^^ and dangerous, involving more thaii the usual risk of falling and caving in, and that it was necessary, in consequence thereof, that said stope should be braced and timbered as fast as the work of excavation progressed, and that such danger was known to the defend- ant, and its superintendent and foreman in charge of said work. III. That defendant, on or about the day of ,19 , caused large quantities of earth and rock to be excavated from said stope, and negligently and care- lessly omitted to cause it to be braced and timbered when newly worked, and allowed it to remain in an unusually unsafe and dangerous condition, for want of prompt and sufficient bracing and timbering; and that thereafter and while the same was in such unusually dangerous condition, the defendant negligently required and directed plaintiff to enter said stope and brace and timber the same; and there- upon the plaintiff, having no knowledge and being given no warning of such unusually dangerous and unsafe condition, did enter the same for the purpose of bracing and timbering it as aforesaid, in accordance with defendant's directions; that immediately large quantities of earth and rock fell from the upper part of said stope upon plaintiff, all of which was without any fault or negligence on plaintiff's part. IV. [Allege damage as in Forms 973-980.] Wherefore [etc., demand of judgment]. 988 Abbott's Forms of Pleading 913. By Falling of Material in Excavation, which Plaintiff was Engaged in Making."'' I. That at the times hereinafter mentioned, plaintiff was employed by defendant as [a laborer], and engaged in the digging of a [trench] at [briefly describe place and character of construction, in which defendant was engaged]. II. That in the process of the digging of said trench it was necessary from time to time to remove huge stones therefrom, as the defendant well knew; that such stones were of- a size and weight as to be too heavy to lift or move by hand, with- out the aid of many men, or by means of tools and imple- ments suitable therefor, and that to attempt to remove them by hand and with a small number of men was unnecessarily dangerous, all of which defendant also well knew. III. That on the day of , 19 , it be- came necessary in the prosecution of plaintiff's work to remove a huge stone from the said trench; that the defendant and his employee entrusted with superintendence of the work negligently and improperly directed that such removal should be undertaken by plaintiff and an insufficient number of helpers, and without any tools or implements to assist therein; that while plaintiff and the other laborers were thus engaged in such effort, and without any neghgence or care- '" The negligence involved here Fonn 911, and notes. He will also does not arise from the employer's be liable if he knows that one set failure to provide a safe place to work; of fellow servants have so negligently that principle has no application done their work as to occasion where the prosecution of the work danger to a fellow servant. Henry itself makes the place and creates its v. Hudson, etc., R. Co., 201 N. Y. danger, and the injury is caused by 140. The employer will be liable the manner in which the employee if he, or his alter ego, or vice principal, prosecutes the work. Citrone i;. or one clothed with control and for O'Rourke Eng. Cons. Co., 188 N. Y. whose act the statute makes him 339. The employer's negligence liable, directs the doing of the work must therefore be predicated upon of excavation in an unnecessarily some other fault. If he gives specific dangerous manner. See O'Brien v. assurance of safety, with respect to Buffalo Furnace Co., 183 N. Y. 317. method or condition, and the em- The precedent is adapted from ployee relies on such assurance and Tribastoni v. Rodgers, etc., Inc., 72 is injured, liability will follow; see Misc. 76, 129 N. Y. Supp. 402. Actions for Negligence 989 lessness on their part, said stone fell upon plaintiff and caused the injury hereinafter set forth. rV. That such injiu"y was caused solely by defendant's negligence in not furnishing a sufficient number of employees to aid in the performance of the work in which plaintiff was engaged, and in not supplying proper tools and implements with which to do such work without unnecessary danger. V. [Allege injury; see Forms 97S-980.] VI. [Allege notice to defendant; see Form 899.\ "^ Wherefore [etc., demand of judgment]. 914. Defective Tools and Appliances; Allegation of Defec- tive Elevator Car.^i* I and II. [Adapt from Form 918.] III. That said elevator on which plaintiff was riding, in the performance of his duties under said employment, and which he had been directed to enter by defendant, and which defendant furnished and then had imder its supervision and control, was in an insecure, dangerous and unsafe condition, in that there were no guard-rails around the same, and the floor or platform of the car of said elevator was improperly secured, and was loose and worn out, as defendant well knew.'^" IV. That by reason of such improper construction and defective and unsafe condition of said elevator, a heavy ^'' If recoveiy is sought under the 20 S. W. Rep. 297, the complaint Employers' LiabiUty Act. was held bad against demurrer where '1' From Boehm v. Mace, 28 Abb. the only negligence alleged was that N. C. 138, 45 N. Y. St. Rep. 285, 18 defendant failed to provide suitable N. Y. Supp. 106. Held, error, to rules for the running of the elevator, allow reading to jury of a statute but nothing was alleged to show regulating the inclosure of elevator that defendant had any authority or shafts, and to submit to jury whether control ovjer the elevator, defendant had not been negligent in '™ The faUing of the elevator car not complying with the statutory will establish that it was out of order, requirements. See complaint in but will not of itself warrant a find- Harris V. Balto., etc., Works, 188 ing that this was due to any negli- N. Y. 141, where the charge was of gence of the defendant. See Lemik insufficient supports causing it to fall. v. Am. Sugar Ref. Co., 176 App. Div. In Troth v. Narcrosa, 111 Mo, 630, 378, 162 N, Y. Supp. 1016. 990 Abbott's Forms of Pleading truck, which was on said elevator at the time, was rolled by the motion of said elevator against and upon the plaintiff, thereby forcing him over the side of the elevator, etc. [stating injury as in Forms 973-980]. 915. The Same, Allegation of Defective Elevator Shaft. [After allegations of plaintiff's employment hy defendant as a workman in defendant's building.] That owing to the gross carelessness and negUgence of the defendant, and without any fault or negUgence on plaintiff's part, said plaintiff while in the performance of his duties as such employee received the injuries hereinafter alleged by falling into and through an unguarded and improperly con- structed elevator shaft on defendant's premises.'^^ 916. The Same, Allegation of Explosion of Steam Engine. That while said steamship was lying at her said wharf, and while the plaintiff was properly in the starboard engine- room,' the valve-box, or the neck thereof, near the athwart- ship bulkhead in the starboard engine-room exploded; that the defendant provided and used unsafe, defective and insecure piping and other machinery, including the said valve-box and the neck thereof.^^^ 917. The Same, Allegation of Supplying Machine with an Unusual and Unnecessary Appliance of a Dangerous Character.^2^ I and II. [Adapt from Form 918.] '" Sustained against demurrer in might be regarded as only charging Rupprecht v. Mills, 27 App. Div. 77, that something wa^ lacking and 50 N. Y. Supp. 157. therefore it was unsafe, etc., and not ^^'^ Sustained in Manning v. Inter- sufficient to let in evidence that it national Navigation Co., 24 App. was dangerous in having upon it Div. 143, 49 N. Y. Supp. 182, as suf- teeth or spikes which were unneces- ficiently definite as against defend- sary. See Anderson v. Northern ant's application for a bill of par- Pac. Lumber Co., 21 Oreg. 281, 28 tioulars. Pa. Rep. 5, from which this form is '2' An allegation that a roller "was adapted, defective, unsafe and dangerous," Actions for Negligence 991 III. That the said [roller] by which plaintiff was caught and injured, as hereinafter set forth, was unsafe and dan- gerous in having upon it teeth or spikes which were and are unusual, and wholly useless and unnecessary, which fact was well known to defendant, but of which fact and of the use of said roller plaintiff was wholly ignorant; that the defendant had neglected and refused to put said roller in a proper and safe condition. 918. The Same, Failure to Guard Machine as Required by Statute.324 [Under N. Y. Labor Law, § 81.] I. That at the times hereinafter mentioned defendant [was the owner and] engaged in the operation of a [sawmill] at in the State of New York. II. [Allege plaintiff's employment, and character of the machine upon which he was at work, as:] That at the times hereinafter mentioned plaintiff was employed by defendant as a [laborer] in his said sawmill, and it became plaintiff's duty in his said employment to operate a saw; that said saw was set in motion by the use of a belt, connecting said saw with a pulley upon a revolving shaft feet below; that defendant had permitted said belt to become loose and out of repair, so as to often run off the pulley on said shaft, and that when said belt ran off it was plaintiff's duty to replace it upon the pulley; that said shaft at said place had two set screws extending from its general surface. III. [Charge defendant's duty with relation to proiriding guards or coverings, asi\ That it was the duty of the defendant to provide said set screws and shaft with a guard or covering; that a guard or covering was usual on shafts having set ^^* Adapted from complaint in tory requirement was shown; see, Fitzwater v. Warren, 206 N. Y. 355, also, Welch v. Waterbury Co., 159 where it was held that the question App. Div. 509, 144 N. Y. Supp. 688, of assumption of obvious risk was afE'd 217 N. Y. 604; Grady v. Nat. not to be disposed of as a matter of Conduit & Cable Co., 153 App. Div. law, where the violation of the statu- 401, 138 N. Y. Supp. 549. 992 Abbott's Forms of Pleading screws of that character thereon, and was necessary in order that the same could be safely used and operated.'" IV. That defendant, not regarding his said duty, and in violation of the requirements of the Labor Law, failed and omitted to provide said set screws or shaft with any guard or covering, and knowingly caused and permitted said shaft and set screws and belt to be used and operated by plaintiff without guard or covering although such use and operation thereof was unsafe and dangerous to plaintiff, of which de- fendant had knowledge and notice. V. That on the day of , 19 , whila plaintiff in the discharge of his duty was engaged in replacing said belt upon said pulley, and without fault or negligence on his part, his left foot was caught by the set screw nearest to said pulley, while said shaft was revolving at a rapid rate, and his foot was drawn under said shaft, and injm-ed. VI. That said injury was caused by defendant's negligence in not providing said set screws and shaft with proper guard or covering, and permitting and requiring plaintiff to replace the belt without such safeguards, notwithstanding the fact that the use of said shaft and set screws and other machinery might have been made reasonably safe if the same had been properly guarded and covered in the manner required by the Labor Law. VII. [Allege character of injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. 919. The Same, Lack of Safety Appliance, which Master Promised to Supply. '^^ I. [Allege defendant's business as in preceding forms.] II. That at and before the times hereinafter mentioned, plaintiff was m the employ of defendant, and in such em- ployment was [describe briefly the line of employment, as thus] '2* The burden of showing that it guards shows presumptively a viola- was impracticable to guard a ma- tion of the statute. Scott v. Intern, chine is on the employer; a machine Paper Co., 204 N. Y. 49. that is maintained wholly without '"^ See notes to Form 911. Actions for Negligence 993 running a steam hoister at defendant's coal yard at , and it was the duty of defendant to provide safe and proper covering for the gear, apparatus and machinery connected with said hoister, [which covering was usual upon machinery of this character, and necessary in order that the same could be safely operated '^']. - III. That defendant, not regarding his duty as aforesaid, carelessly and negligently failed to provide a safe and secure covering for said gear, apparatus and machinery [of which he had notice]. IV. That plaintiff complained to defendant of said un- guarded and dangerous condition of said machinery, and requested that guards be placed thereon, and that thereupon, and within [a week] prior to the injury hereinafter mentioned, defendant promised plaintiff, that he would within [a week] place upon said gear, apparatus and machinery a safe and proper covering. V. That defendant failed to fulfill said promise, prior to the day of , 19 , and that solely from his negligence as aforesaid, and without fault or negligence on plaintiff's part, and on said day of , 19 , while plaintiff was so running said steam hoister for defend- ant, his left hand was caught in said gear so negligently left uncovered by defendant and drawn between the cogs of the wheels thereof -and crushed. VI. [Allege damage as in Forms 973-980.] Wherefore [etc., demand of judgment]. 920. The Same, from Defect in Machinery from Failure to Keep in Repair, and Unknown to Servant. '^^ I. [Allege defendant's business, and the line of plaintiff's service, as iit Form 903.] '" This allegation was held neces- may be had on another ground, such sary in Torongo v. Salliotte (Mich.), as failure to warn plaintiff of danger 57 N. W. Rep. 1042. of which he was ignorant. Brodsky 328 If the only change is that the v. Kronenberg, 145 App. Div. 594, machine was defective, no recovery 130 N. Y. Supp. 251. 994 Abbott's Forms of Pleading II. That it was the duty of defendant to provide safe and suitable machinery for plaintiff's use m his said employment, and keep the same in proper repair; but that defendant, disregarding his duty, negligently and carelessly permitted a machine known as [a card cutter], which it was plaintiff's duty to use, to become defective and out of order [because of: here set forth in a general way the character of the defects]; '^® that such facts were known to defendant, [or could have been discovered by the defendant upon a proper inspection of said machine] ^^° but were unknown to plaintiff.^" III. That on or about the day of , 19 , while plaintiff was using said machine in the ordinary dis- charge of his said duty, and without fault or negligence on his part, one of the knives of said machine, in consequence of defendant's said negligence, became violently detached, and was thrown upon plaintiff's left hand. IV. [Allege injury and damage, as in Forms 973-980, ac- cording to the fact.] Wherefore [etc., demand of judgment]. 921. The Same, Employee Induced by Promise to Repair or Replace, to Continue Use of Defective Appliance.'^^ I. That on and prior to the day of , 19 , 3» Defendant is entitled to have a buckle, 80 App. Div. 465, 81 N. Y. hill of particulars of the respects in Supp. 133, where it was held that which the machinery is claimed to the gravamen of the action is the mas- have been defective. Heslin v. Lake ter's negligence, and not his promise Champlain & R. Co., 109 App. Div. to compensate for injuries received. 814, 96 N. Y. Supp. 761; Wilson v. The effect of the promise to repair Am. Steel, Etc. Co. 66 App. Div. is a waiver of his right to assert the 527, 67 N. Y. Supp. 508. servant's assumption of risk incident ''" Byrne v. Eastmans Co. of to using the defective appliance with N. Y., 163 N. Y. 461. knowledge of its condition, and may ''' Allegations, both of defendant's be proved although not alleged in knowledge and plaintiff's ignorance, the complaint, as it is merely re- are necessary in some jurisdictions; buttal of the master's defense that in others, the servant's knowledge the risk was assumed. Carron v. is matter of defense. See general Standard Refrig. Co., 138 App. Div. note at beginning of this chapter. 723, 123 N. Y. Supp. 682. "'^ Adapted from Obanhein v. Ar- See, also, Forms ^911 and 919, Actions for Negligence 995 plaintiff was in the employ of the defendant, and was en- gaged in running a circular saw in defendant's planing mill at II. That defendant, in violation of his duty, furnished plaintiff with an unsafe and defective saw, which was liable to wabble or buckle. III. That the defendant knew of such defective and unsafe condition, and on said day of , 19 , both personally and through his superintendent in charge of said mill [or, through a person who was entrusted by defendant with authority to direct, control and command plaintiff in the performance of his duties,] ^'^ directed plaintiff to go on with the use of said saw, that another saw had been ordered with which to replace said defective saw, but that it would be safe and all right for plaintiff to continue the use of said defective saw until the other one was received, [and that if any harm should come to plaintiff from such continued use of said defective saw while in the performance of his duties that the defendant would be responsible for the damage suffered by him]. IV. That plaintiff relied upon defendant's said assurances, and continued the use of such defective saw, and that on said day of , 19 ,^^* while plaintiff in the performance of his duties was using said saw, it buckled because of its said defective condition, and threw a piece of wood in such a way as to strike plaintiff and to cause the injuries hereinafter alleged. V. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. wherein similar promises by the add to the form an allegation of master regarding the servant's safety giving notice of the injury to de- are relied upon, and the cases cited fendant, as in Form 899. in the notes thereto. ''* The promise or assurance of "' If the direction -to continue safety will only protect the servant use was given by a person who at during such time as the master in- common law would be held a fellow dicates or the law implies from the servant, but under the Employers' language of the promise. See Rice Liability Act be held a representative v. Eureka Paper Co., 174 N. Y. of the master, insert this clause, and 385. 996 Abbott's Forms of Pleading 922. The Same, Where Injury Occurs from Two Defects in Safety Appliances for Machinery, or from One of Them.s35 I. [Allege nature of defendant's business, and plaintiff's line of service, as in Form 903.] II. That it was defendant's duty to provide a soft wood floor in front of said saw, in order that said plaintiff might stand thereon without sUpping; that it was also defendant's duty to place guards over the knives of said saw, so that the person of the workman engaged in operating said machine would be protected from injury. That said soft wood floor and said guards are usually supplied as aforesaid, and are reasonable and necessary apphances to insure the safe opera- tion of a saw of this character. III. Yet defendant, disregarding his duty as aforesaid, negligently and carelessly placed a hard wood floor in front of said saw, which was and continued to be shppery and unsafe, and neghgently and carelessly permitted said knives to remain wholly without guards. [IV. That within days before the mjury herein- after mentioned, plaintiff complained to defendant of the dangerous condition of said floor and of said machine as aforesaid; that defendant thereupon promised plaintiff that he would within a reasonable time remedy said defects, and each of them, and plaintiff was thereby induced to continue in his said employment with the expectation that said de- fects would .each of them be so remedied.] ^'* V. That [defendant did not fulfill his said promise prior to the day of , 19 , which was within a reasonable time after the promise was given; and that] on the [said] day of , 19 , while plaintiff was 33S Where the complaint alleges two page 843; Weber Wagon Co. v. Kehl or more particulars of negligence, (111. Sup. Ct.), 29 N. E. Rep. 714, plaintiff may recover if he prove any from which this form has been one of them which in itself actually adapted. did cause the injury, although the "' See Forms 911, 919 and 921, others remain unproved. See note and cases cited in notes thereto, as at commenoement of this chapter, to effect of such promise to remedy. Actions for Negligence 997 engaged in the course of his said employment, and without fault or AegUgence on his part, he sUpped upon said floor by- reason of the slippery character thereof, and fell upon and against said saw, and by reason of defendant's said negligence in not providing said saw with guards, he came in contact with the knives of said saw. VI. That thereby plaintiff's hands were much cut and lacerated [continue according to fact; see Forms 973-980]. Wherefore [etc., demand of judgment]. 923. From Incompetent Fellow Servant.'" I.* [Allege defendant's business and line of plg,intiff's service, as in Form 903.] II. That it was the duty of defendant'to provide plaintiff with competent and skillful fellow servants, but that de- fendant, disregarding his said duty, negligently and care- lessly employed and allowed one M. N. to run the engine and boilers in his said distillery; [state facts showing servant's incompetence, as thus:] that said M. N. was not a licensed or a skilled engineer, and by reason thereof and of his intem- perate habits was wholly unfit and incompetent to run said engine and boilers. That defendant, and his superintendents, well knew or should have known M. N.'s said unfitness and lack of skiU and intemperate habits [and had promised plaintiff that said M. N. would be discharged and requested plaintiff to continue work],''^ but that plaintiff was wholly ignorant thereof.'^" "' Who are fellow servants within but should also contain the added the common-law principles is ably allegations necessary in an action discussed in Murray v. Dwight, 161 under that statute. See Form 899; N. Y. 301. See, also, Larssen v. Wesel v. Powers Co., 147 App. Div. D., L. & W. R. Co., 59 App. Div. 167, 132 N. Y. Supp. 134. 202, 69 N. Y. Supp. 352 (marine ^ss gge Ginsburg v. Wolf, 78 Misc. service). 563, 139 N. Y. Supp. 920, rev'd on If the employer's liability can be another ground in 159 App. Div. rested upon the modification of these 412, 144 N. Y. Supp. 678. principles under the N. Y. Em- This promise and request may not ployers' LiabiUty Act, the complaint need to be alleged. See note 332. should not be framed only on the ''' Negligence in the selection of fellow servant theory of liabihty, the servant or in his retention after 998 Abbott's Forms of Pleading III. That on or about the day of , 19 , while plaintiff was performing his said duties [as- fireman] said M. N., by reason of his lack of skill and his intemperate habits/^" so recklessly and neghgently managed said engine and boilers ^^^ that one of the boilers exploded,'^^ shattering the building, and thereby plaintiff, without fault or negli- gence on bis part, was violently thrown down and bruised and crushed by the falling debris.'^' IV. {Allege injury according to faot; see Forms 973-980.] V. [Notice to defendant in proper case.] ^** Wherefore [etc., demand of judgment]. 924. AllegatioA of Failure to Supply Sufficient Employees.'^* [After showing the- character of plaintiff's work, revealing that the work was necessarily carried on in combination with other employees.] knowledge, actual or constructive, of his unfitness, is of the gist of the action, and must be proved. Mc- Evoy V. Manhattan Ry. Co., 12 N. Y. State Rep. 73. An allegation of negligence in continuing in em- ployment after knowledge of unfit- ness cannot be supported by proof of employment without reasonable inquiry as to fitness. Union Pac. Ry. Co. V. Young, 8 Kan. 658. Mere negligence of the fellow servant is not enough to allow recovery. Moss V. Pacific R. Co., 49 Mo. 167. Under an allegation that defend- ant employed "unskillful, incom- petent and improper servants," plaintiff may show the servant's in- toxication on the day of injury and that he was addicted to intemperance. Lyons v. N. Y. Central, etc., R. R. Co., 39 Hun (N. Y.), 385. As to the rule in California regard- ing the necessity of alleging and proving that the superintendent who hires an incompetent fellow servant was himself negligently selected by defendant, see Collier v. Steinhart, 51 Cal. 116. '*° The incompetency must have a causal connection with the negligent act. Burnos v. Am. Sugar Ref. Co., 107 App. Div. 286, 94 N. Y. Supp. 1104. ^" The complaint should charge or show that the servant was acting within the scope of his employment. Fisher v. Brooklyn Jockey Club, 60 App. Div. 446, 64 N. Y. Supp. 69. '^2 It may be that particulars of the explosion may be required if plaintiff knew more facts concerning it. See note to Form 920. Fitts v. Waldeck, 8 N. E. Rep. 635. '*^ See other forms, included in actions against railroad companies, numbers 799 and 802. '" See note 337, supra. '^^ This is a common-law duty of the master. See Pantzar v. TiUy Foster Iron Mining Co., 99 N. Y. 368; O'Connell v. Thompson-Starrett Co., 72 App. Div. 47, 76 N. Y. Supp. 296. Actions for Negligence 999 That the defendant negligently and carelessly omitted to furnish a suflBcient number of competent employees to aid plaintiff in the performance of his said work, and to render the same reasonably safe. 925. Failure of Employer to Promulgate Rules.^^^ I. That the defendant at the times hereinafter mentioned was engaged in the business of [manufacturing and selling , and had a factory at in the State of New York], and that plaintiff was employed by defendant as [state character of employment]. II. [Show facts from which it will appear that rules were reasonably necessary in order to avoid accidents to employees, as:] That during plaintiff's employment, defendant furnished and maintained an elevator for the use of its employees in- cluding plaintiff, while discharging their duties, but defend- ant negUgently failed to provide an operator to take charge of and guard and control the movement of said elevator, and failed to equip said elevator with any bell or other signal device whereby the intent to move it could be announced, or to provide the entrance to said elevator with any barrier to prevent entrance therein by an employee at the time such elevator was being set in motion by some other employee ; and defendant in furnishing said elevator without an operator and in such condition was negligent in failing and omitting to make, promulgate and enforce rules [state character, as:] for the operation of said elevator by employees, and for signalling and indicating intended movements thereof. III. That on or about the day of , 19 , while plaintiff was engaged in the duties of his employment '*" Adapted from complaint in ing Co., 216 N. Y. 173, the court Knickerbocker Trust Co. v. General held that when an employee's act may Ry. Signal Co., 209 N. Y. 404, where make the work of another dangerous a recovery for plaintiff was upheld, which would otherwise be safe, a The court held that a situation was case is made for the making of presented which revealed the neces- rules to promote the safety of the sity for the making and enforcement employee, of rules. See Form 797, for another prec- In Dzkowski v. Reynoldsville Cart- edent, and the general notes thereto. 1000 Abbott's Forms of Pleading and was about to go upon said elevator, the same was started without signal or warning to plaintiff and plaintiff was thereby caused to fall, and by the movement of said elevator was caught between the floors and injured as here- inafter alleged; that said injuries were caused solely by de- fendant's said negligence and without fault on plaintiff's part. IV. [Allege injury, as in Forms 973-980.] Wherefore [etc., demand of judgment.] 926. From Ignorance in the Management or Use of Dan- gerous Machine or Tool, Where Employee was Young or Without Experience and was not Instructed.^*^ I. [Allege defendant's business as in Form 903.] II. That plaintiff, who is an infant of the age of years,'''* was, on [and prior] the day of , 19 , employed by defendant [as a — ^laborer — ; that on said day defendant directed plaintiff to change the character of the work theretofore being done by him, and] to [cut steel with a cold chisel;] that plaintiff had never before been employed to do work of that character, and was whoUy ignorant of the proper tools with which the work might be performed with safety, and wholly inexperienced m the use of said tool. III. That defendant, wholly disregarding his duty, negU- gently and carelessly permitted plaintiff to engage in said work, without informing him that said work was in any wise dangerous to an unskilled or inexperienced workman, nor did he instruct plaintiff as to the proper maimer in which to do said work, all of which it was defendant's duty to do.'*^ "' See, as to defendant's duty, '^ If the employee is immature, the and his habiUty for the act of a fore- employer's duty to instruct may be man in changing the character of sufficient without the work being plaintiff's work to one of a hazard- Inherently dangerous. See Corbett ous nature, Mahoney v. Cayuga Lake v. St. Vincent's Indus. School, 79 Cement Co., 208 N. Y. 164; Pelow App. Div. 334, 79 N. Y. Supp. 369, V. Oil Well Supply Co., 194 id. 64; aff'd 177 N. Y. 16. Simone v. Kirk, 173 id. 7. '49 Collins v. Waterbury Co., 144 Actions for Negligence 1001 IV. That said work is dangerous and requires skill and knowledge on the part of the workman in order that it may be safely performed,'^" and was not and is not such work as an employee of plaintiff's [age and] experience ought prop- erly to be required to do. V. That on or about the [said] day of , 19 , while plaintiff was engaged in said work, and without fault or negUgence on his part, a fragment of steel, cut off by plaintiff with his cold chisel, pierced and became embedded in plaintiff's right eye. VI. [Allege injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 927. Failure to Instruct Regarding Danger not Known Without Special Knowledge or Actual Experience.^" I. That at all times hereinafter mentioned, the plaintiff was in the employ of the defendant as a driver of a two-horse wagon. II. That on premises known as in the City of , there was constructed a large iron tank about ten feet from the grovmd, which contained about gallons of oil, which was highly explosive, which fact was known to the defendant. That on or about the of , 19 , the defendant purchased the oil in the said tank, and directed plaintiff to enter upon said premises for the purpose of removing the said oil. III. That the defendant had knowledge that the plaintiff had no experience in handling oil and no knowledge of its App. Div. 670, 129 N. Y. Supp. 661. App. Div. '433, 137 N. Y. Supp. If the master delegates the duty of 287. instniction to another servant, he An allegation that a machine was is Uable for his negligence or omis- defective does not permit proof that sions in giving the instructions. its use was inherently dangerous and Brennan v, Gordon, 118 N. Y. that plaintiff was not warned. Brad- 489. sky v. Kronenberg, 145 App.' Div. 'soA bill of particulars may be 594, 130 N. Y. Supp. 251. properly ordered of the respects in ''^ Adapted from complaint in which the work was dangerous. Cooper v. FideUty Devel. Co., 146 Wojtczak V. Am. Mfg. Co., 152 App. Div. 637, 131 N. Y. Supp. 457. 1002 Abbott's Forms of Pleading explosive qualities; that the defendant failed to instruct the plaintiff as to the dangerous and explosive quaUties of the said oil, and failed to instruct him as to the proper and care- ful manner of handling said oil and permitted him to handle the said oil at night without such instructions. IV. That the defendant directed the plaintiff to pump the oil contained in the said tank from the tank to his wagon, and then to cart it away and sprinkle the roads thereabouts with the oil, and to continue so to do during the night, and fur- nished him an iron suction pump with which to pvunp said oil. V. That on the evening of the said day of ,19 , by reason of the handling of said oil, an explosion occurred by reason of which plaintiff was injured as herein- after alleged; that the plaintiff was injured through no negligence or fault on his part, but solely by reason of the aforesaid negligence of the defendant. VI. [Allege injury as in Forms 973-980.] Wherefore [etc., demand of judgment]. 928. By Infant, Employed in Factory, in Violation of Labor Law.352 [Under N. Y. Labor Law, § 70.] I. That defendant at the times hereinafter mentioned was engaged in the manufacture of [state], at , in the State of New York, and operated and conducted a factory ^^' at said place. II. That on or about the day of , 19 , plaintiff was an infant of the age of [less than fourteen] years; that on said day and prior thereto plaintiff was employed by defendant in his said factory in violation of § 70 of the Labor Law of the State of New York, and permitted by defendant to assist in the manufacture of therein.^^* ^'^ Adapted from complaint in '** A tugboat is not within the Koester v. Rochester Candy Works, statute. Shannahan v. Empire Eng. 194 N. Y. 92; Lee v. Sterling Silk Corp., 204 N. Y. 543. Mfg. Co., 115 App. Div. 589, 101 ^^* Such employment is evidence N. Y. Supp. 78. of negligence. Marino v. Lehmaier, Actions for Negligence 1003 [Or, in a proper case:] II. That on or about the day of , 19 , plaintiff was an infant between the ages of fourteen and sixteen, viz., of the age of years, and was employed by defendant in his said factory in violation of § 70 of the Labor Law of the State of New York, without having any employment certificate thereto- fore filed in his office as therein required.^'''' III. That on said day plaintiff was wrongfully, unlawfully and negligently set to work by defendant in his said factory to operate a certain machme therein, of which the motive power was (steam) and such operation was accompanied by peril and danger of bodily injury; that plaintiff was not in- structed in the use of said machine, or warned of the peril connected with his work. IV. That on said day while plaintiff was operating said machine and engaged in [assisting in the removal of the rollers thereof] his right hand became caught between the rollers and the fingers of his hand mangled. V. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. VIII. FOR MALPRACTICE, ETC. 929. Against an Attorney for Negligent Delay in Prosecu- tion of a Suit.^^^ I. That at all the times hereinafter mentioned defendant 173 N. Y. 530; Danaher o. Am. Mfg. exercise its duties in behalf of an- Co., 126 App. Div. 385, 110 N. Y. other, for hire and reward, he must Supp. 617 (allowing recovery by be held to employ in his undertak- parent although he permitted the ing a reasonable degree of care and employment in violation of the skill. If injury results to the client, statute). , for the want of such a degree of rea- 356 A violation establishes a prima sonable care and skill, the attorney facie case of negUgence in the em- must respond in damages, to the ex- ployer. Solomon v. Royal Art Glass tent of the injury sustained. Byrnes Co., 83 Misc. 53, 144 N. Y. Supp. v. Pahner, 18 App. Div. 1, 45 N. Y. 590; Dragotto v. Plunkett, 113 App. Supp. 47p, aff'd 160 N. Y. 699; Div. 648, 99 N. Y. Supp. 361. Montrose v. Baggott, 161 App. Div. 356 When a person adopts the pro- 494, 146 N. Y. Supp. 649. But it fession of the law, and assumes to must not be understood that an 1004 Abbott's Forms of Pleading was an attorney at law, engaged in the practice of his pro- fession at II. That the plaintiff, in or about the month of , 19 , retained and employed defendant as such attorney, for attorney is liable for every mistake that may occur in practice, and held responsible for the damages that may result. If he acts with a proper degree of attention, with reasonable care, and to the best of his sl^ill and knowledge, he will not be held re- sponsible. Byrnes v. Palmer, supra; 2 Watts & S. (Pa.) 103, 3 How. (Miss.) 314, 5 Smed. & M. (Miss.) 268, 21 Ala. 647, 8 Mass. 61, 45 111. 151. An attorney is not liable for errors of judgment, or for failing to apply to the litigation principles of law which are neither elementary nor conclusively settled by authority. Montrose v. Baggott, 161 App. Div. 494, 146 N. Y. Supp. 649. The courts have emphatically ruled that no attorney can be held to infallibility of judgment, or to a warranty of the result of his work. This must necessarily be so because of the difficulties and uncertainties that surround his work, and that are uncontrolled by him. In Bow- man V. Tallman, 27 How. Pr. (N. Y.) 274, the court say: "There is no implied agreement in the relation of counsel and client, or in the em- ployment of the former by the latter, that the former will guarantee the success of his proceedings in a suit, or the soundness of his opinions, or that they will be ultimately sus- tained by a court of last resort. He only undertakes to avoid errors which no member of his professipn of or- dinary prudence, diligence and skill would commit. On one hand practi- tioners are bound to possess the skill and exercise the diligence and atten- tion of prudent members of their profession, and on the other hand they are released from aU liabilities or consequences which, considering the fallibility of human reason, must necessarily be sometimes unfore- seen. They are only charged with utter incompetency or want of or- dinary care in a particular case." The Supreme Court of the United States says, in Savings Bank v. Ward, 100 U. S. 198: "It must not be understood that an attorney is liable for every mistake that may occur in practice, or that he may be held responsible to his client for every error of judgment in the conducting of his client's case. Instead of that, the rule is that, if he acts with a proper degree of skill and with rea- sonable care and to the best of his knowledge, he will not be held re- sponsible. Attorneys do not profess to know all the law, or to be in- capable of error or mistakes in ap- plying it to the facts of every case; as even the most skillful of the pro- fession will hardly be able to come up to that standard." See, also, cases cited previously in this note. The mere fact that a demurrer was sustained to the pleading drawn by the attorney does not necessarily import negligence on his part; the facts must be stated from which it will appear that its insufficiency was due to a want of that degree of knowledge an attorney is required to possess. See Kissam v. Bremer- man, 44 App. Div. 588, 61 N. Y. Supp. 75. Actions for Negligence 1005 a compensation to be paid him therefor, to * prosecute and conduct an action in the Court for the county of , on behalf of this plaintiff against one M. N., for [the recovery of the sum of dollars due from him to this plaintiff for money loaned], and the defendant under- took to prosecute said action in a proper, skillful and diligent manner, as the attorney of the plaintiff. III. That at the time of said employment, and thereafter until after the day of , 19 , said M. N. was solvent, and was the owner of real estate within the said county, and unincumbered, of a value exceeding dollars; that the defendant might, in case he had prosecuted said action with due diligence and skill, have obtained final judgment therein for this plaintiff before the said day of , 19 , yet he did not do so, but so negligently delayed instituting, and so unskillfuUy and tardily conducted said action, and permitted the same to be so delayed, that by his negligence, delay and want of skill, he did not obtain judgment for plaintiff until the day of , 19 ; '^^ that meanwhile said M. N. had sold and transferred his said real estate, and had become insolvent.^^^ IV. That by reason of the aforesaid negligence of defend- ant said judgment was and is worthless and uncollectible, and the plaintiff has been hindered and deprived of the '" If no judgment was obtained So where the attorney did not on plaintiff's claim he must allege bring an action until after the Statute facts showing that this was due to of Limitations had run, a recovery defendant's negligence, and allege may not be had against him without and show the value of the claim proof that the client had had a good thus lost. Vooth V. McEachen, 181 cause of action. Zeitlin v. Morrison, N. Y. 28; Lamprecht v. Bren, 125 167 App. Div. 220, 152 N. Y. Supp. App. Div. 811, 110 N. Y. Supp. 128. 1000. If the attorney did not finally ob- '** Plaintiff must show affirmatively tain a judgment, then sufficient facts that the damages sought have re- must be alleged in the complaint to suited from the negligence com- show that plaintiff had had a good plained of; e. g., that the judgment, cause of action, on which the attor- if obtained without delay, would ney would have recovered judgment, have been collectible. Joy v. Mor- See Schmitt v. McMillan, 175 App. gan, 28 N. W. Rep. 237. Div. 799, 162 N. Y. Supp. 437. 1006 Abbott's Forms of Pleading means of recovering said sum of money, by defendant's negligence as aforesaid, to his damage ■ dollars. Wherefore [etc., demand of judgment], 930. Against the Same, for Negligent Conduct of Litiga- tion.^'*'' I. [As in preceding form to *, continuing:] defend on behalf of this plaintiff an action brought against him by M. N., then pending in the Court for the recovery of dollars, falsely claimed by said M. N. to be due from this plaintiff, and the defendant undertook to defend said action in a proper, skillful and diUgent manner as the attorney of plaintiff. [Or otherwise describe defendant's undertaking ac- cording to fact.] II. That such proceedings were thereafter had in such action that it became the duty of the defendant as the at- torney of this plaintiff to interpose an answer on his behalf to the complaint therein, on or about the day of ,19 ; * that defendant wholly neglected so to do, and by reason thereof, and through his said neglect, judg- ment by default for dollars was obtained against the plaintiff in said action, and by reason thereof this plain- tiff was compelled to and did pay to the said M. N. dollars, the sum so recovered by him, and also paid to the defendant herein for alleged costs and disbursements in de- fense of such action, and for a retainer, the additional sum of dollars, amounting in all to the sum of dollars. [Or where the negligence consists in failure to interpose or to properly plead ^^^ a claim or defense:] '*' See notes to preceding form. on its face constituting the offense In Cleveland v. Cromwell, 110 App. charged, and when the Statute of Div. 82, 96 N. Y. Supp. 475, the Limitations had run in plaintiff's court held that the attorney was favor. negligent as matter of law when on ''" An attorney is to be held liable his advice plaintiff had pleaded only for those mistakes as a pleader guilty to an indictment against which reveal a lack of the knowledge plaintiff which did not state facts commonly possessed by practitioners, Actions for Negligence 1007 II. [As above to * ]; that at and prior to such time plaintiff had fully informed defendant [set forth the facts regarding existence of the claim or defense, as:} that the agreement re- ferred to in said complaint was an oral one; that defendant negligently failed and omitted to plead the defense of the Statute of Frauds in the answer prepared and interposed by him for this plaintiff to said complaint. III. That more than [six] years had elapsed since the al- leged cause of action against this plaintiff and in favor of said M. N. had accrued and prior to its commencement, and that the alleged cause of action was thereby wholly barred and would have been defeated and dismissed but for defend- ant's negligence as aforesaid [or otherwise show that plaintiff would have succeeded in his defense]. [Or: III. That on the trial of said action, this plaintiff was unable to avail himself of the defense of the Statute of Frauds, because such defense had been so negligently omitted from his answer by defendant as aforesaid, and judgment was obtained in said action against him for dollars which this plaintiff has since paid.] Wherefore [etc., demand of judgment]. 931. Against an Attorney, or Title Company,^" for Negli- gence in Examining Title. I. [As in Form 929 if against an attorney.] [If against a title examining company: I. That the defendant is a domestic corporation, organized for the purpose, among other things, of examining and guar- anteeing titles to real estate for hire and profit; that in all depending upon settled principles or does not necessarily import negli- final authority. See Rapuzzi v. gence. Kissam v. Brennerman, 44 Stetson, 160 App. Div. 150, 145 App. Div. 588, 61 N. Y. Supp. N. Y. Supp. 455; Patterson v. Powell, 75. 31 Misc. 250, 64 N. Y. Supp. 43, '".The duties and obligations of aff'd on opinion , below in 56 App. such a company are identical with Div. 624. those of an attorney. See Ehmer v. The sustaining of a demurrer to Title Guarantee & Trust Co., 156 a pleading drawn by the attorney N. Y. 10. 1008 Abbott's Forms of Pleading matters relating to conveyancing and searching titles it holds itself out to the public and assumes to discharge the same duties as individual conveyancers and attorneys.] II. That on or about the day of , 19 , the plaintiff made a contract with one M. N. for the pur- chase from him of certain real property [very briefly desigrmte the premises], for the sum of dollars, which property said M. N. assumed to have power to convey in fee, [free and clear of all incumbrances]. III. That the plaintiff retained and employed the de- fendant, [as such attorney,] to examine the title of M. N. to said property, to ascertain if said title were good and market- able, and whether any and if so what incumbrances existed thereon, and, if said title was unobjectionable and no incum- brances existed, to secure an estate therein in fee simple and clear of all incumbrance, to be conveyed to the plaintiff; which the defendant for compensation to be thereafter paid [or, in consideration of dollars paid by plaintiff] undertook to do. IV. That the defendant negligently, carelessly and un- skillfully conducted such examination, and negUgently and unskillfully failed to ascertain if said title were good or marketable, and whether any incumbrances existed thereon, and did not use proper diligence in securing a good and suffi- cient title in fee, clear of incumbrance, to be conveyed to the plaintiff; but, on the contrary, defendant wrongfully advised plaintiff that said title was good and marketable and that no incumbrance existed [except, etc., in accordance with the facts], and induced the plaintiff to pay said M. N. the sum of dollars, being said purchase money of the prem- ises. V. That in fact said M. N. had no title to said premises, and said sum of dollars has been wholly lost to plaintiff [or. That in fact said property was subject to incum- brances to the sum of dollars, as follows : '^^ [spedfy- '°2 It is not sufficient to allege that complaint must show how the prop- the property was incumbered. The erty was incumbered. Elder v. Actions for Negligence 1009 ing them] ^** and the plaintiff, in order to release the premises from said incumbrances, was compelled to and did pay the holders thereof the sum of dollars— or, That after plaintiff took said title he discovered that the stoop, door cap and pilaster of the building adjoining said premises on the east encroached nine inches or more thereon, that said encroachments had existed for over twenty years and that such encroachments rendered the title of said premises un- marketable '**]. VI. That by reason of the premises, plaintiff has been damaged dollars.'^"^ Wherefore [etc., demand of jvdgment]. 932. Against Attorney for Negligent Investment on Mort- gage. I. That the defendant at all times hereinafter stated was an attorney and counsellor at law, engaged in the practice of his profession at , and was at times employed by plaintiff as such attorney to loan money upon the security of bond and mortgage; that in or about the month of , 19 , plaintiff delivered to the defendant the sum of dollars, which the said defendant undertook safely and se- curely to invest upon bond and mortgage. Bogardus, Hill & D. Supp. (N. Y.) '"' For precedents in allegation of 116. The law implies that an attor- incumbrances, see ante, Form 584. ney in searching records and exam- ^* From complaint in Glyn v. ining titles possesses the knowledge Title Guarantee & Trust Co., 132 and skill requisite for the busi- App. Div. 859, 117 N. Y. Supp. ness, and that he will use ordinary 424. care; and for a failure in either of Only actual damage may be re- of these respects he is liable to the covered. Kenerson v. Title G. & T. party injured. Byrnes v. Palmer, Co., 100 Misc. 723, aff'd by App. 18 App. Div. 1, 45 N. Y. Supp. 479, Div. on opinion below. afif'dieON.Y. 699; Chase w.Heaney, »«' This allegation of damage is 70 111. 268; Byrnes v. Palmer, 18 sufficient to permit a recovery of the N. Y. App. Div. 1, 45 N. Y. Supp. difference between the value of the 479; Watson v. Muirhead, 57 Pa. St. property with the defects and its 161. The action will not lie without value had it been free therefrom, privity of contract. Dundee, etc., Glyn v. Title Guarantee & Trust Co., Co. V. Hughes, 18 Am. L. Rev. 725. supra. 1010 Abbott's Forms of Pleading II. That the said defendant, so acting as the attorney of this plaintiff, negligently and carelessly invested the said sum of dollars upon insufficient, inadequate and improper security, to wit, in a second mortgage upon prop- erty [briefly describe] of the value of not more than dollars, which property was ah-eady incumbered by a prior first mortgage of dollars, and upon the bond of an irresponsible mortgagor, one M. N. [III. That at the time of making such investment the de- fendant well knew that this plaintiff was not possessed of any other means or property than the sum so confided to him, and that he would be entirely unable to protect the investment so made against the heavy mortgage which had priority over that in which he invested said sum.] IV. That thereafter said first mortgage was foreclosed, and upon the foreclosure the premises mentioned were sold, and did not reaUze an amount sufficient to wholly satisfy the first mortgage above Set forth. V. That by the carelessness, negligence and misconduct of the defendant in the premises the said sum of dol- lars, belonging to this plaintiff and iatrusted to the defendant as above set forth, was and is wholly lost to him with the interest thereon from the day of , 19 . Wherefore [etc., demand of judgment]. 933. Against an Attorney for Giving Dishonest Advice.^®® I. That at all the times hereinafter mentioned, defendant was and now is an attorney and counsellor at law of the State of, , engaged in the practice of his profession. II. That on or about the day of , 19 , plaintiffs were the owners, as tenants in common, of certain real estate in the city of , consisting of [briefly de- scribing it]. That plaintiffs, other than the plaintiff A. B., ™« Adapted from complaint in deceit, was reduced by the court to Looff V. Lawton, 97 N. Y. 478, where single damages for malpractice, and plaintiff's judgment for treble dam- the complaint sustained as stating ages, under 2 R. S. 287, § 68 (now facts showing a breach of duty. Penal Law, § 273), for the attorney's Actions for Negligence 1011 were desirous of selling to the plaintiff A. B. their several undivided interests in said property, and plaintiff A. B. was desirous of purchasing the same, at the agreed price of dollars. III. That thereupon plaintiffs duly retained the defend- ant as their attorney to properly conduct the said transfer of' title to the plaintiff A. B., and informed him of their desires as aforesaid; that defendant thereupon advised plaintiffs that they were not competent to convey said real estate, and could not give good title thereto to said A. B., but that the [best, shortest and cheapest] manner of so transferring title was by means of an action of partition and sale of said real estate under a judgment of sale to be obtained in said suit. IV. That plaintiffs believed, and accepted and followed, such advice; that said partition action was, on or about the day of , 19 , begun on their behalf, in the Supreme Court, by defendant, and the same was pros- ecuted to judgment, and the said property sold pursuant to the final judgment rendered therein, and purchased by said plaintiff A. B., under and in pursuance of an agreement au- thorizing him so to do, made and executed by plaintiffs be- fore the commencement of said action of partition, and imder the advice of defendant. V. That said action of partition was unnecessary and needless, and the said advice and counsel so given by the defendant were false, dishonest and untrue, and were so given with the intent to deceive plaintiffs and induce them to consent to an expensive and needless litigation in order that the defendant might receive large and extravagant fees. VI. That by reason of said action of partition, plaintiffs were obliged to, and did pay the sum of dollars as the costs and expenses of said suit, and, in addition thereto, did pay to the defendant the sum of dollars as and for his fees as attorney and counsel therein. VII. That by reason of the premises plaintiffs have been damaged dollars. Wherefore [etc., demand of judgment]. 1012 Abbott's Forms of Pleading 934. Against a Physician for Maltreatment.^*^ I. That at all the times hereinafter mentioned defendant was, and now is, a physician, engaged in the practice of his profession at II. That the plaintiff, in the month of , 19 , em- ployed defendant as such physician to attend the plaintiff and to cure him of a malady from which he then suffered, to wit [briefly stating its general character], for compensation promised by plaintiff to be paid therefor, and for that pur- pose defendant undertook as a physician to attend and care for the plaintiff.'^* III. That the defendant did not use due or reasonable or proper care or skill in endeavoring to cure the plaintiff of the said malady, in this : [describe the character of the malpractice, or neglect, as] that on the day of , 19 , and on the fourteen days next following, defendant unskill- fuUy and neghgently prescribed and administered or caused to be administered to the plaintiff grains of mercury every six hours during that time, the same being excessive and injurious doses, and improperly prescribed and adminis- tered to a person suffering from said malady and which the defendant, if he had used due and proper care and skill, ought not to have administered to the plaintiff. [Or, where the negligence was a failure to properly diagnose plaintiff's illness:] "' It is held in New York (Blair v. called on by the plaintiff, and under- Bartlett, 75 N. Y. 150) that a recov- took as such to administer medicines, ery by the physician for the services, etc. This is sufficient to raise a duty rendered after proof of value, bars a of skill and care on his part. Peck subsequent action for malpractice, v. Martin, 17 Ind. 115. If plaintiff is although no defense of that character an infant the allegation of his em- was set up in the former suit. Contra, ployment of defendant necessarily Kessequie v. Byers, 52 Wise. 651. impUes a contract to that effect be- ^«* Since, in this country, the em- tween his parents and the defendant, ployment of a physician raises an im- and that they had given any neces- phed promise to pay for his services, sary consent to defendant to do the plaintiff in an action for mal- whatever was proper in effecting a practice may allege that defendant cure. Wood v. Wyeth, 106 App. was a physician, and as such was Div. 21, 95 N. Y. Supp. 360. Actions for Negligence 1013 III. That defendant ignorantly or negligently failed to discover the plaintiff's true condition, and that he was suffering from , as aforesaid, but undertook to treat plaintiff for some other malady; that defendant did not possess or negligently failed to exercise the knowledge and skill and diligence, which as a physician he should have possessed and exercised in plaintiff's behalf.'^'' IV. That, by reason aforesaid, the plaintiff was and is greatly injured in his health and constitution, suffered great pain, and was obliged to and did expend the sum of dollars in endeavoring to be cured of the said malady, which was prolonged and increased [and plaintiff's health per- manently impaired] by the said unskillful and improper conduct of the defendant, to the damage of the plaintiff dollars. '■" Wherefore [etc., demand oj judgment].^'' ^ 935. Against Physician, for Negligent Treatment."^ I. That at all times hereinafter mentioned defendant was, and now is, a practicing physician and surgeon. '" A physician and surgeon, by he was employed. He is under the taking charge of a case, imphedly further obligation to use his best represents that he possesses, and the judgment in exercising his skill and law places upon him the duty of applying his knowledge. See Pike v. possessing, that reasonable degree of Honsinger, 155 N. Y. 201. And he learning and skill that is ordinarily must indemnify his patient against possessed by physicians and sur- any injurious consequences result- geons in the locality where he prac- ing from his want of the proper tices, and which is ordinarily re- degree of skill, care or diligence in garded by those conversant with the the execution of his employment, employment as necessary to qualify Craig v. Chambers, 17 Ohio St. 253; him to engage in the business of Carpenter v. Blake, 60 Barb. 488, practicing medicine and surgery. 50 N. Y. 696, 75 id. 12; Sotherms v. In addition to possessing the req- Hanks, 34 Iowa, 286; O'Hara v. uisite skill and knowledge, it be- Wells, 14 Neb. 403. comes the duty of a physician or "" See Purcell v. Jessup, 99 App. surgeon, upon undertaking to treat Div. 556, 91 N. Y. Supp. 165. a patient, to use reasonable care and "' See Forms 973-980, and notes. diligence in the exercise of his skill ''^ From De Hart v. Hann, 126 and the application of his learning Ind. 378, 26 N. E. Rep. 61, where it to accomplish the purpose for which was held that the complaint was 1014 Abbott's Forms of Pleading II. That on or about the day of , 19 , plaintiff, by a fall from a horse, had dislocated, bruised and injured his right shoulder and arm; that on said day plaintiff employed defendant to give him medical and surgical aid, and the defendant, as such physician and surgeon, undertook faithfully, skillfully and diligently to set and endeavor to cure and heal said arm and shoulder.'" III. That the said defendant conducted himself in and about his endeavoring to set said arm and shoulder, and in and about curing the same, so unskillfully, negligently and unprofessionally that, by reason of the improper treatment and unskillful and negligent conduct of the defendant, said arm and shoulder were not set, nor healed and cured, but were permitted to remain out of place for the space of [four] weeks, until it became impossible to properly set and cure the same. [Where neglect is claimed:] III. That defendant failed and neglected to continue to give plaintiff proper and necessary attention [after fi!tst setting plaintiff's shoulder], but for a space of weeks so negligently and carelessly neglected to observe the condition thereof that [state defective results].^''* IV. That by reason of the premises plaintiff has per- manently lost the use of his said arm, and has suffered great bodily injury and mental anguish, to his damage doUars.'^^ Wherefore [etc., demand of judgment]. 936. Against a Surgeon, for Malpractice.^'^ I. That at all the times hereinafter mentioned defendant framed in tort, and that the word treatment would' not cover subse- " undertook" was used in the sense quent neglect or negligence. See of "entered upon," and not "prom- Brown v. Goffe, 140 App. Div. 353, ised" or "agreed." 125 N. Y. Supp. 458. '" See note to paragraph II of pre- ^" See precedents in Forms 973- ceding form. 980, and notes. '" See Gerken v. Plimpton, 62 "« gee note 368 to Form 934 as to App. Div. 35, 70 N. Y. Supp. 793. character of a surgeon's implied obli- A charge of negligence in the initial gation. Actions for Negligence 1015 was, and now is, a physician and surgeon, engaged in the practice of his profession at II. That the plaintiff, in the month of , 19 , employed defendant as such physician and surgeon [to set and heal the leg of the plaintiff, which was broken], and for that purpose defendant undertook, as a surgeon, to attend and care for the plaintiff. III. That the defendant thereafter so negligently and unskillfuUy conducted himself [in setting and attempt- ing to heal the same as to bring on inflammation, and make it necessary to have the leg of the plaintiff am- putated]. [Or where negligence is charged in performance of an opera- tion:] [After alleging employment:] That defendant advised plaintiff that it was desirable and necessary to perform upon him the operation of [state character], and on the day of , 19 , defendant performed such operation. That by reason of the carelessness, negligence and unskillf ul- ness of defendant in conducting and performing said princi- pal operation, and other operations, which he performed on plaintiff's body at different times thereafter, which were occasioned and necessitated by defendant's negligence, care- lessness and unskillfulness aforesaid, plaintiff became [briefly describe effect of mistreatment].^'^'' TV. That by reason of the defendant's said neghgence, plaintiff's leg was amputated, and he was permanently dis- abled and made sick, and kept from attending to his business for months, and was put to great expense, to wit, the sum of dollars, paid by him to other surgeons in making said amputation, to the damage of the plaintiff doUars.^'^^ Wherefore [etc., demand of judgment]. 5" Such allegation of negligence in Goffe, 140 App. Div. 353, 125 N. Y. performing an operation does not Supp. 458. permit recovery for subsequent neg- "' See Forms 973-980, and notes, lect or mistreatment. Brown v. on alleging injury and damages. 1016 Abbott's Forms of Pleading 937. The Same, More Specific Allegation of Maltreat- ment."' I and II. [As in preceding forms.] III. That the defendant so negUgently, carelessly and unskillfuUy behaved and governed himself ui and about the care of said plamtiff and care of his said leg, in not properly setting the same, and in not using the proper care, attention, medicaments, appliances and skill in the treatment of said leg, that by and through such neglect, carelessness, default and unskillfuhaess of the said defendant, as such physician and surgeon, plaintiff was and is still caused to suffer great pain and anguish, and his said leg was caused to become greatly swollen, inflamed and diseased to an unnecessary extent, the bones of said leg caused and allowed to over-ride and overlap, and the said leg to become greatly shortened, blackened and diseased, and does still so remain, the general health of the plauitiff gi-eatly impaired, weakened and ruined to such an extent that he has been unable to do any kind of labor, and unable to move or to use said leg without great pain and suffering, and without the aid of crutches. 938. Against Examiner in Lunacy for Negligently Giving Certificate of Insanity.''** I. [As in Form 934] and was an examiner in lunacy. II. That on or about the day of , 19 , plaintiff was committed to and was thereafter for a period of about months confined in an insane asylmn at , upon her husband's petition, to which was an- nexed a certificate of the defendant as an examiner in lunacy that she was insane and was a proper subject for custody and treatment in some institution for the insane. III. That the defendant prior to the making by him of such certificate had made a false, pretended and grossly neg- '™ /feM-sufficiently specific against ™ Adapted from complaint in special demurrer, in Hauselman v. Warner v. Packer, 139 App. Div. 207, Carstens, 60 Mich. 187, 27 N. W. 123 N. Y. Supp. 725. Itep. 18, Actions for Negligence , 1017 ligent examination of her as to her mental condition; that she was not insane at the time of such examination by de- fendant, or at any time; that the defendant willfully failed and neglected to use or to exercise reasonable and ordinary care, skill and diligence in such examination to ascertain her true mental condition or to make a prudent and careful in- quiry and to obtain proof whether she was sane or insane, and failed to exercise his best or any reasonable and proper judgment as to her sanity, but with gross and culpable neg- ligence based his opinion upon false and interested state- ments made to him by plaintiff's husband, and thereupon and upon such examination and opinion made and delivered said certificate.- IV. That plaintiff has been damaged by reason of the premises in the sum of dollars. ^*^ Wherefore [etc., demand of judgment]. 939. Against Hospital Superintendent • for Neglect of Patient. [Complaint sustained in Drefahl v. Connell, 85 Wise. 109, 55 N. W. Rep. 160.] ^^^ I. That between and the defendant held the office of superintendent of the county hospital of the county of ; that during all said time plaintiff was lawfully an inmate of said hospital, and was afflicted with a disease affecting his legs. II. That it was the duty of said defendant, as such super- intendent, to furnish to the plaintiff, as such inmate, a physician of reasonable and sufficient skill, and such skillful and appropriate medical treatment as the nature of the plaintiff's case demanded, and to furnish plaintiff with food '" Also allege any special damages Orphan Asylum, 178 App. Div. 682, resulting; see Forms 973-980, and for a discussion of the principles pro- notes, tecting eleemosynary institutions '** The court held that the action from liability for negligence, and was not based on breach of contract, holding that they are liable for the but for breach of duty. employment of incompetent serv- See Goodman v. Brooklyn Hebrew ants. 1018 Abbott's Forms of Pleading of the best kind suited to his debilitated condition; that during all said time, the defendant, as such superintendent, was well and suiBciently provided with all the assistant physicians, nurses, cooks, attendants and servants, and food and medicines required for the performance of his said duties, and had full control over them, and full control over the furnishing of the supplies of every kind for said hospital, and was in every way able to perform his said duties as such officer and toward the plaintiff. III. That disregarding his duties, the defendant neglected to give to plaintiff sufficient and proper medical attendance, but knowingly permitted plaintiff to be attended by incom- petent physicians and employees; that he failed and neglected to provide for the plaintiff sufficient or suitable food, but fur- nished him food of a very coarse and indigestible kind, wholly unsuitable for his condition, and frequently furnished him ill-cooked and unwholesome food, by the use of which plaintiff became greatly debilitated and suffered great pain; that defendant wholly failed and neglected to exercise a proper supervision over his subordinates, but suffered them to grossly neglect their respective duties toward plaintiff. IV. That by reason of such neglect by defendant, the disease with which plaintiff was afflicted grew much worse; that he suffered great bodily pain and mental anguish; that his disease has become so seated that he can never be cured, and will remain an invalid, etc., to his damage dollars. ^^^ WHEREroRE [etc., demand of judgment], 940. Against Public Hospital for Injuries Caused by Incompetent Employees. [From Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. (N. Y.) 682.] [The allegation showing defendant's liability was as follows:] That the defendant, in disregard of its duties, negligently, carelessly and recklessly hired and furnished to the plaintiff '*' See, for other precedents, Forms 973-980. Actions for Negligence 1019 incompetent, unskillful and careless superintendents, agents, teachers, guides and employees, and that plaintiff's injuries as hereinafter set forth were sustained by reason of such negligence, recklessness and wrongful conduct of the de- fendant. 941. Against Dentist. ^^^ I. That at the times hereinafter mentioned, defendant was a dentist, regularly engaged in the practice of his pro- fession at II. That on or about the day of , 19 , plaintiff employed defendant to treat him professionally, and to do whatever was necessary with respect to the condition of his teeth. III. That defendant thereupon, and during a period of weeks thereafter, performed certain dental work upon plaintiff's teeth; that such work so done by defendant was negligently, unskillfully and carelessly performed in the following particulars: (a) defendant negligently removed two of plaintiff's teeth which were not in a condition to re- quire their removal; (b) that in attempting to remove said teeth, defendant negligently permitted portions thereof to remain in plaintiff's jaw; (c) that defendant performed cer- tain bridge work which was defectively and improperly fitted. IV. That the defendant's negligence and lack of skill as aforesaid has resulted in the production of abscesses in plaintiff's mouth, and in necrosis of the jaw bone. V. [Allege damages other than above; see Forms 973-980.] Wherefore [etc., demand of judgment]. 942. Against Corporation Conducting Dentistry.^^' I. That at the times hereinafter mentioned defendant was '" From Brown v. Cady, 91 App. had been charged terminating in a Div. 415, 86 N. Y. Supp. 959, where single injury, which was properly a motion to compel a separate state- alleged in one count, ment of different causes of action ^'^ projjj Hannon v. Siegel-Cooper was denied, on the ground that a Co., 167 N. Y. 244. course of professional mistreatment 1020 Abbott's Forms of Pleading and now is a domestic corporation [conducting a department store in the City of ], and represented and adver- tised itself as carrying on the practice of dentistry [in one of its departments]. II. That on or about the day of , 19 , plaintiff employed defendant to render the necessary pro- fessional service in the treatment of plaintiff's teeth, and paid defendant therefor. [Ill, IV and V as in preceding form.] Wherefore [etc., demand of judgment]. 943. Against Stockbroker, for Negligence in Operating a " Straddle.'''^" I. That at all the times hereinafter mentioned the defend- ant was a broker and dealer in stocks, doing business as such in the city of II. That on or about the day of , 19 , the plaintiff employed the defendant as such broker, and the defendant as such broker undertook and agreed with the plaintiff, for a certain commission or reward agreed to be paid to him by the plaintiff, to procure for the plaintiff and on his account a certain contract, privilege or option, commonly known as a "straddle," which contract should be and was to the effect that the person with whom the said contract should be, and was entered into, would upon any demand that might be made upon him by or on account of this plaintiff, at any time within [sixty] days from the date of such contract, either purchase, receive and take from this plaintiff at a price therein mentioned, shares of the capital stock of some corporation therein mentioned, or, at the option of this plaintiff, sell and furnish to this plaintiff at the same price, shares of such capital stock, and that the person with whom the said contract should be made should be some person of undoubted responsibility, and that the stock mentioned in said contract should be such '" The action was sustained, and plaint in Harris v. Tumbridge, 83 plaintiff recovered upon this com- N. Y. 92, aff'g 8 Abb. N. C; 291. Actions for Negligence ^ 1021 stock as in the reasonable judgment of the defendant would be likely to prove remunerative as an investment [and that the said contract, privilege or option should be lodged with, and remain with the defendant, for the purpose of operating, as hereinafter mentioned]. III. And it was further agreed upon between the plaintiff and the defendant, that upon the purchase and procurement of the said contract, the defendant should, for and in con- sideration of the usual and regular commissions of brokers in such cases, agreed to be paid to him by the plaintiff, either buy or sell for and on account of the plaintiff within sixty days from the date of the said contract, shares of the stock mentioned therein [retaining the said contract, privilege or option as security therefor, and as a means of furnishing stock for delivery in case of sale, and as a means of disposing of said stock in case of purchase]. IV. And the defendant further agreed that in such pur- chases and sales for and on account of the plaintiff, he would use the usual and ordinary care and diligence and prudence used by brokers in such matters, as to purchasing or selling stock, and as to the time and manner of doing the same, and as to the price at which the same should be purchased or sold. V. That pursuant to such employment the defendant did, on the day of , 19 , purchase for and on account of this plaintiff, with certain money, to wit, the sum of dollars furnished to him for that purpose by the plaintiff, a contract, privilege or option of the char- acter hereinbefore mentioned, dated on that day, with some person or persons unknown to this plaintiff, in the capital stock of the Company, a stock selected by the de- fendant, the price mentioned therein at which said stock was to be furnished or taken being dollars per share [and the defendant did hold and retain the said contract, privilege or option for the purposes before mentioned. VI. That on the ; and days of , 19 , the market price of the said stock was and remained at or about said sum of dollars per share. 1022 Abbott's Forms of Pleading VII. That on the day of , 19 , the de- fendant, without the knowledge or authority of the plaintiff, sold on her account shares of the said stock at the price of dollars per share, and did thereafter, with- out the knowledge or authority of the plaintiff, call for and obtain from the person with whom the said contract, privi- lege or option was made, shares of the said stock at the price aforesaid, and did, with the stock so obtained, cover the aforesaid sale, and did not otherwise purchase or sell or operate in stock for and on account of this plaintiff. VIII. That the aforesaid acts and omissions of the de- fendant on account of the plaintiff, subsequent to the pur- chase of said contract, were negligent and unauthorized, and unwarranted and unusual, and not according to the Visual custom and course of proceedings of brokers in such cases, and without ordinary diligence or care. That within the period of [sixty] days from the date of the contract aforesaid, the said stock rose to a much higher price, to wit: to the price of dollars per share. That had the' defendant acted in a prudent manner and with ordinary diligence and care, and according to the usual custom and course of busi- ness of brokers, he might have gained for and on account of the plaintiff large returns and profits from the said invest- ment, to wit: the sum of dollars, but by the afore- said negligent, unauthorized, unwarranted and unusual pro- ceedings of the defendant, this plaintiff has failed to earn any profit or return whatever from the said investment, and has wholly lost the said sum of dollars invested by her in the contract, privilege or option aforesaid, to her damage dollars. Wherefore [etc., demand of judgment], 944. Against Officer of Corporation, for Negligent Manage- ment of its Affairs. '^'^ I. That at the times hereinafter mentioned, plaintiff was *" Such an action survives against ceased officer; it is not necessary that the legal representatives of the de- it be shown that the officer profited Actions for Negligence 1023 a [domestic banking corporation], and the defendant was the [president] thereof. II. That the defendant, on or about the day of , 19 , while acting as such officer of plaintiff, loaned to one M. N. dollars of the money of the plaintiff; that said loan was made negligently and impru- dently, and without any adequate or proper security being taken therefor, and to a person of no financial responsibility. III. That the securities deposited as security upon said loan consisted of [state], which were unmarketable and less in value than the amount of said loan and wholly insufficient to secure the same, and that the unmarketable and com- paratively valueless character of said securities and their insufficiency as security for said loan was well known to the defendant when he made said loan. IV. That of said loan only the sum of dollars has been repaid by said M. N., and the sum of dollars has been received from a sale of said securities, and that no other or further sum can be collected or realized upon said loan or from said M. N. V. That by reason of the premises plaintiff has been dam- aged by the defendant's negligence in the sum of dollars. Wherefore [etc., demand of judgment]. 945. By One Having no Contractual Relation with Defend- ant, to Recover for Injury from an Article Manufac- tured by Defendant Constituting a Thing of Danger.'*^ I. That the defendant was at the times hereinafter men- tioned and now is [a domestic corporation] and engaged in the manufacture of automobiles known as the Automobile. by the transaction. Seventeenth from which the precedent is adapted. Ward Bank v. Webster, 67 App. See, also, Quaokenbush v. Ford Motor Div. 228, 73 N. Y. Supp. 648, from Co., 167 App. Div. 433, 153 N. Y. which the above precedent has been Supp. 131; Statler v. Ray Mfg. Co., adapted. 195 N. Y. 478; Torgeson v. Schultz, '** Action sustained in McPherson 192 N. Y, 156; Field y. Empire Case V. Buick Motor Co., 217 N. Y. 382, Goods Co., 179 App. Div. 253. 1024 Abbott's Forms of Pleading II. That at and on or about the day of , 19 , plaintiff purchased of one M. N., who ^ had the agency at said place for the sale of defendant's auto- mobiles, and who was suppHed by defendant with cars of its manufacture for the purpose of sale thereof to purchasers, one of the cars manufactiu-ed by defendant known as [model 10 runabout]. III. That the defendant was careless and neghgent in the manufacture of said automobile, and failed to use due care in its construction and in testing the same, and the materials of which it was made; that it was constructed for the purpose of running at high speed upon ordinary high- ways, and for that purpose it was necessary that good and strong and proper materials should be used in its wheels and that such materials used in the wheels should be suf- ficiently inspected and tested to show that they were strong and durable and safe, and that the defendant negligently and without making proper tests and inspection thereof put wheels upon said machine in question the spokes of which were of inferior and unsuitable and unsafe timber and which material was not sound but was brittle or brash. IV. That while plaintiff was carefully running and operat- ing said machine, the spokes of one of the wheels of said machine gave way and broke, and the machine was let down and overtm-ned because of the breaking of said spokes, and the plaintiff was thrown out and injured. V. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. 946. The Same, Another Form, Against a Wholesale Dealer who Sells an Explosive Oil to a Retailer, who in Turn Sells to Plaintiff, ^s* [Action sustained in Welhngton v. Downer Kerosene Oil Company, 104 Mass. 64.] '''This action does not lie upon any cles. See Wellington v. Oil Co., privity of contract, but upon the duty 104 Mass. 64; Thomas v. Winchester, cast upon a dealer in dangerous arti- 6 N. Y. 397. ACTIONS FOR NEGLIGENCE 1025 I. That the defendants are manufacturers of and dealers in oils, including those oils and fluids which are burned in lamps for illuminating purposes; and that one M. N., of , is a retail dealer in such illuminating oils and fluids. II. That the defendants, knowing said M. N. to be such retailer, sold and dehvered to said M. N. a quantity, to wit, one barrel, of a very dangerous and explosive liquid, called naphtha, for the purpose of being retailed and resold to be burned in lamps for illuminating purposes; the defendants well knowing it to be the purpose of said M. N. to retail and resell the same to the public to be burned as aforesaid, and well knowing that said Uquid was explosive and dangerous to life when so used. III. That said M. N., not knowing the same to be dan- gerous and explosive, retailed and resold a pint thereof to plaintiff for the purpose of being burned in a lamp for illuminating purposes, as aforesaid. IV. That while plaintiff was using the same in a lamp for such pxu-pose of illumination, and not knowing the same was naphtha, or dangerous and explosive, the same ignited and exploded, and dangerously burned, wounded and in- jured the plaintiff in his face and other parts of his body [etc., according to the fact], to plaintiff's damage dollars.''" Wherefore [etc., demand of judgment]. 947. Against Compotmder of Drugs, for Negligence in Selling to Retailer Poisonous Drug, under Wrong Label.'" [Adapted from Thomas v. Winchester, 6 N. Y. 397.] I. That the defendant, prior to and at the times herein- after mentioned, carried on the business of preparing and selling certain vegetable extracts to be used as medicines, '»" See Forms 973-980. shown. Thomas v. Winchester, 6 N, "' The hability does not arise out Y. 397. of contract, and no privity need be 1026 Abbott's Forms of Pleading among which were those known as "Extract of Dandelion," which was a mild and harmless medicine, and the "Extract of Belladonna," which was a deadly vegetable poison, and which, if taken in such quantity as might be safely adminis- tered of the former would greatly impair the health or de- stroy the life of any person so taking. II. That at some time prior to the date hereinafter men- tioned defendant put up and sold to one L. M., a druggist in , a jar of the extract of belladonna, which had been labeled by defendant as extract of dandelion, and was purchased of him as such by said L. M.; that said L. M., relying on said label, so affixed by defendant, sold said jar of belladonna to one O. P., a druggist at , as the extract of dandelion. III. That on or about the day of , 19 , plaintiff being sick, a portion of the extract of dandelion was prescribed for him, by his physician, and the said O. P., relying upon the label affixed by defendant to said jar of belladonna, and believing the same to be extract of dande- lion, did sell and deliver to plaintiff from said jar a portion of its contents, which was taken and administered to and taken by plaintiff, under the beUef that it was extract of dandelion. IV. That by reason thereof plaintiff was greatly injured, etc. [state how injured; see allegations of injury, Farms 973- 980]. V. That plaintiff's said injmy was caused wholly by the negligence and unskillfulness of the defendant in so putting up and falsely labeling the said jar of belladonna as the ex- tract of dandefion, whereby this plaintiff and said druggists, and all other persons through whose hands it passed before being administered to plaintiff as aforesaid, were induced to believe and did beheve that it contained the extract, of dandelion. VI. That by reason aforesaid, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. Actions for Negligence 1027 948. Against Druggist, for Negligently Furnishing to Plain- tiff a Wrong Drug.^^^ [See WiUson v. Faxon, WilUams & Faxon, 208 N. Y. 108; Davis V. Guarnieri (Ohio), 15 N. E. Rep. 350; Beckwith v. Oatman, 43 Hun (N. Y.), 265.] I. That at the time hereinafter mentioned defendant -was engaged in the business of a druggist in the city of , and State of II. That on or about the day of , 19 , plaintiff requested defendant, at defendant's drug store, in aforesaid, to put up and sell to plaintiff [desig- nate drug called for, as thus, an ounce of epsom salts or, a laxative known as cascara sagrada — or otherwise according to fact]. III. That defendant undertook to fill said order, and pretended so to do, but negUgently and carelessly put up for plaintiff a certain poisonous drug known as [designate it] and sold and delivered the same to plaintiff as and for such epsom salts. Or: III. That defendant negligently and carelessly in- formed plaintiff that certain medicinal pills known as — name — , and which defendant represented were manufac- tured by it, were the same as said laxative except in tablet form, and that their ingredients were piirely vegetable; whereas in fact said medicinal pills contained a dangerous mineral poison, and that defendant did not know the nature of the ingredients thereof arid had negligently failed to as- certain such ingredients. IV. That defendant neglected to mark or label said [poisonous drug, or the] package containing the same, [as such drug], and neglected in any way to indicate thereon, or in connection therewith, its poisonous character. V. That plaintiff, believing said [poisonous drug] so de- "^ Where there was no privity of Same principle, Bishop v. Weber contract the action may yet lie. (Mass.), 1 East. Rep. 7. (Tort Thomas v. Winchester, 6 N. Y. 397; against caterer for furnishing un- and see Form 946. wholesome food.) * 1028 Abbott's Forms of Pleading livered to him as aforesaid to be [epsom salts], and without fault or negligence on his part, [partook of the same,] and was thereby made sick and ill [add particulars as to the ex- tent of injury; see Forms 973-980]. , Wherefore [etc., demand of judgment]. 949. For Delivering to Common Carriers Dangerous Mate- rials without Disclosing Their Character. ^^^ [From Boston & Albany R. R. Co. v. Shanley, 107 Mass. 568.] I. That plaintiffs are a corporation and owners of a rail- road and are common carriers between the city of and the city of in the State of , and inter- mediate towns, and are lessees of a railroad and common carriers between , a town on said first-m-entioned railroad, and , a town in said State of II. That said defendants, W. X. and Y. Z., manufactured for one M. N., at his request, as well as for other persons, a new, dangerous, explosi\'e, combustible and inflammable compound, recently discovered and manufactured, called by a new name, not generally known, new in the market, and the qualities were and are not generally known; made in part of nitro-glycerine, itself an exceedingly dangerous, explosive and combustible substance. That the defendants, the Powder Company, and the said [names of its officers] officers or agents of said powder company also manufactured for said M. N., at his request, as well as for other persons, certain dangerous articles or con- trivances called exploders, designed to be used to set on fire and explode said new compound. III. That said W. X. and Y. Z. packed and caused to be packed, not in a proper or safe, but in an improper, unsafe '" The obligation of the shipper to a matter entirely obvious, hence no state the nature of the goods shipped liability for negligence can be predi- obtains only where those goods are cated upon a misstatement of weight of a dangerous nature not discover- causing damage to the carrier. Hanna. able on inspection. Goods are not v. Pitt & Scott, 121 App. Div. 420, Wangerous by reason of mere weight, 106 N. Y. Supp. 145. Actions for Negligence 1029 and dangerous manner, a large quantity, to wit, ten cases of said new compound, to be sent to said M. N. over the plain- tiffs' said railroads and in said cars, and delivered the same to the plaintiffs, well knowing that the same were dangerous as aforesaid, as ten cases of dualin, a new name not known in the market, nor generally known, which the plaintiffs aver neither they nor the persons employed in their behalf to re- ceive or transport goods for them as common carriers, knew or could reasonably be expected to know were of a dangerous nature or were not properly packed, and without giving due and sufficient notice to the plaintiffs or said persons that the same were of a dangerous nature, but on the con- trary declaring and averring that they were safe and not of a dangerous nature, so that said plaintiffs and persons neither could exercise the option to refuse to accept and carry the same, nor if accepted stow and carry the same so as not to endanger or injure persons or property. IV. That said defendant, the Powder Company and their said officers and agents, packed and caused to be packed, not in a proper or safe, but in an improper, unsafe and dangerous manner, a large quantity, to wit, pounds of said exploders in one box to be sent to said M. N. at said in accordance with their request, over the plaintiffs' said railroads and in said cars and delivered the same to the plaintiffs, well knowing that the same were dangerous as aforesaid, as "one box" which the plaintiffs aver neither they nor the persons employed in their behalf to receive or transport goods for them as common carriers aforesaid knew or could be reasonably expected to know were of a dangerous nature or were not properly packed, without giving due and sufficient notice to the plaintiffs or the said persons that the same were of a dangerous nature so that said plaintiffs and persons neither could exercise the option to refuse to accept and carry the same, nor if accepted stow and carry the same so as not to endanger or injure persons or property. V. That said new compound and said exploders being in 1030 Abbott's Forms of Pleading their nature dangerous, combustible and inflammable as aforesaid, and being improperly packed as aforesaid, did, by reason of such nature and such improper packing, and on or about the day of , 19 , at , take fire and explode; that said exploders, so taking fire and exploding, did cause said dualin to take fire and explode, and that said dualin taking fire and exploding caused said exploders to take fire and explode, and that the taking fire and explosion of said exploders and the taking fire and ex- plosion of said dualin, both separately and by the combina- tion thereof, destroyed sundry cars and other property be- longing to the plaintiffs as well as a large amount of goods in said cars in their care and possession, for the safe delivery of which the plaintiffs were responsible to the shippers thereof and to whom they have been obliged to make and have made good the loss, to plaintiffs' damage dollars. Wherefore [etc., demand of judgment]. U.. MISCELLANEOUS 950. For Keeping a Dangerous Animal,'" by which Plaintiff was Injured. I. That at the time hereinafter mentioned, the defendant ''■' The owner of a wild animal of a animal. If a dog was of ferocious dis- dangerous character, or the owner of position, and accustomed to bite man- a domesticated animal known to be kind, and defendant knew this, and of a vicious disposition, is absolutely plaintiff has been bitten, there is a liable for injuries done by such ani- right of action without showing spe- mal, unless provoked by the injured cific negUgence in the custody of the person's conduct; the liabihty exists dog, on the ground that the owner without the owner's fault, and with- of such a dog should destroy him, or out regard to the owner's care in pre- at least is absolutely bound to con- venting such injury. Molloy v. fine him safely; and if he neglects to Starin, 191 N. Y. 21; Gropp v. Great do this, he is liable for any injury the Atl., &c., Tea Co., 205 N. Y. 617; animal may do. (Cases supra.) But Pilburn v. Peopfe's Palace & Aqua- to maintain the action on this ground, rium Co., L. R., 25 Q. B. Div. 258. the owner must be shown to have Therefore, the action does not draw known that the animal was wont to in question the adequacy of defend- do mischief of the kind suffered by ant's precautions for guarding the plaintiff; and the duty of destroying Actions for Negligence 1031 or of absolutely confining the animal, seems to arise only where it is of a disposition dangerous to the lives or safety of human beings. See Smith v. Pelah, 2 Strange, 1264; Buehler v. Kerr, 170 App. Div. 962, 155 N. Y. Supp 310; Gardner v. Bohack Co., 179 App. Div. 242, and cases cited. To hold the owner of domestic or other animals not necessarily inclined to commit mischief, as dogs, horses and oxen, liable for any injury com- mitted by them to the person or per- sonal property, it must be alleged and proven that he previously had notice of the animal's mischievous propensity, or that the injury was attributable to some other neglect on his part; it being in general necessary in an action for an injury committed by such animals, to allege and prove the scienter.- Gardner v. Bohack - Co., supra; Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888; Tahnage v. Mills, 80 App. Div. 382, 80 N. Y. Supp. 637, 1 Chit. PI. 70; Lyke v. Van Leuven, 4 Den. (N. Y.) 127, affirmed, 1 N. Y. (1 Comst.) 515; Tifft V. Tifft, 4 Den. (N. Y.) 175; Vrooman v. Lawyer, 13 Johns. (N. Y.) 339; Auchmuty v. Ham,! Den. (N. Y.) 495; Kinion v. Davies, Cro. Car. 487; Mason v. Keeling, 1 Ld. Raym. 606; Beck v. Dyson, 4 Campb. 198; Dunckle v. Kocker, 11 Barb. (N. Y.) 387; FairchUd v. Bentley, 30 id. 147. But the common law holds a man answerable not only for his own tres- pass, but also for that of his domestic animals; and as it is the natural and notorious propensity of many of such animals, such as horses, oxen, sheep, swine and the like, to tove, the owner is bound at his peril to confine them on his own land; and if they escape and commit a trespass on the lands of another, unless through defect of fences which the latter ought to re- paii-, the owner is liable to an action of trespass qu. cl., though he had no notice in fact of such propensity. And in declaring against the defend- ant in an action for such trespass, it is competent for the plaintiff to allege the breaking and entering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff; and upon proof of the allegation, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that the defendant had notice that his animals had been accustomed to do such or similar mischief. The breaking and entering the close is, in such action, the substantive allegation, and the rest is laid as matter of aggravation only. Van Leuven v. Lyke, 1 N. Y. (1 Comst.) 515; Beckwith v. Shor- dike, 4 Burr. 2092; Angus v. Radin, 2 South. 815; Dolph v. Ferris, 7 Watts & S. 367; Dunckle v. Kocker, 11 Barb. (N. Y.) 387. And in an action for killing a dog, when the defense is that the dog was ferocious and accus- tomed to bite and attack mankind, it is not necessary, in order to main- tain this defense, to prove that plain- tiff had knowledge of the animal's propensity. Maxwell v. Palmerton, 21 Wend. (N. Y.) 407. An animal of this description allowed to run at large is a public nuisance, and may be destroyed by any one. Putnam v. Payne, 13 Johns. (N. Y.) 312; Hinck- ley V. Emerson, 4 Cow. (N. Y.) 351; Loomis V. Terry, 17 Wend. (N. Y.) 496. And so of a dog which has been lately bitten by a mad dog. Putnam V. Payne, 13 Johns. (N. Y.) 312. The rule is not so strong, however, where the vicious habit of the dog ex- tends only to the worrying of other 1032 Abbott's Forms of Pleading wrongfully kept [a dog] well knowing him to be of ferocious, vicious and mischievous disposition, and accustomed to attack and bite mankind.^"' [II. That the defendant wrongfully and negligently suffered such dog to go at large, without being properly guarded or confined.] ^*^ III. That on or about the day of , 19 , at , the said dog,"" attacked and bit the plaintiff.'** IV. [Allege injury; see Forms 973-980]. Wherefore [etc., demand of judgment]. 951. For Injury from Vicious Horse.''' I. That on and prior to the day of ,19 animals or to similar mischief not affecting human safety. Compare on this subject Gardner v. Bohack Co., 179 App. Div. (N. Y.) 242, and cases cited; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Brill v. Flagler, 23 Wend. (N. Y.) 364; Wadhurst v. Damme, Cro. Jac. 45; Barrington v. Turner, 3 Lev. 28; Wright v. Ram- scott, 1 Saund. 84. ™' One exhibition of vicious or dan- gerous characteristics will suffice. Talmage v. Mills, 80 App. Div. 382, 80 N. Y. Supp. 637. The fact that the owner kept him for a watch dog charges him with knowledge of his character, and even if no proof be given of any prior at- tack, the owner may be liable. See Brice v. Bauer, 108 N. Y. 432; Lagut- tuta V. Chisolm, 65 App. Div. 326, 72 N. Y. Supp. 904. The owner of a dog suddenly af- flicted with rabies is not liable for damages caused by him in the ab- sence of any proof of knowledge of the animal's condition in time to prevent the hann. Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888. ™' Under the New York author- ities this allegation is unnecessary. 397 Where a mischief is done by two dogs, owned by different persons, the owners cannot be jointly sued. Each is liable for the mischief done by hia own dog, but not for that done by the dog of another, unless he himself had some agency in causing the dog to do it. Van Steenbergh v. Tobias, 17 Wend: (N. Y.) 562; RusseUu. Tomlin- son, 2 Conn. 206; Adams v. Hall, 2 Vt. 9. "' There of course need be no re- lation of master and servant, or the like, between the parties. The lia- bility is to any member of the com- munity suffering injury. Talmage v. Mills, 80 App. Div. 382, 80 N. Y. Supp. 637. Cases in which the injury has been to an animal owned by plain- tiff, instead of to the person of plain- tiff, are Lyke v. Van Leuven, 4 Den. (N. Y.) 127, affirmed, 1 N. Y. (1 Comst.) 515; Tifft v. Tifft, 4 Den. (N. Y.) 175; Wiley v. Slater, 22 Barb. (N. Y.) 506; Wheeler v. Brant, 23 id. 324; Earl v. Van Alstine, 8 id, 630. ^'The owner is liable without Actions foe Negligence 1033 defendant was the owner of a horse, which had a vicious propensity to [kick and bite], of which defendant had full knowledge and notice/™ - II. That on said day and while plaintiff was passing by said horse at , said horse kicked [or, bit] .plaintiff and caused the injuries hereinafter set forth. III. [Allege injury as in Forms 973-980.] Wherefore [etc., demand for judgment]. 952. Against Owner of Vicious Horse, for Leaving it Unattended and Insecurely Tied Upon Public Street.""^ I. That at the time hereinafter mentioned, the said de- fendant was, and for a long period prior thereto had been, the owner and possessor of a certain horse of a malicious and mischievous disposition, and accustomed to attack and injure mankind, and known to be and to do so by the said defendant. ^"^ proof of negligence. See note to pre- ceding form. A charge of negligent driving caus- ing plaintiff's injury will not support a recovery on proof that the horse was vicious, easily frightened and unmanageable, and ran away; nor can an amendment be allowed at the trial to permit such a recovery. Gropp V. Great Atl., etc., Tea Co., 205 N. Y. 617. ^°° That an ordinarily gentle and manageable horse had once run away from fright does not of itself constitute a vicious propensity so as to fix liability for injury upon the owner without proof of negligence. See Benoit v. Troy, etc., R. Co., 154 N. Y. 223. A further charge that the horse was left unattended and unfastened, in violation of traffic rules, does not add another cause of action. See Blyn V. Foster & Co., 90 Misc. 360, 153 N. Y. Supp. 177. "1 From Dickson v. McCoy, 39 N. Y. 400, where the plaintiff re- covered. See, also, Form 954. ^o^ It is unnecessary, in addition to charging negligence of the owner in leaving the horse loose and un- attended, to also allege or prove the viciousness of the horse, in com- mitting the injury, and defendant's knowledge, except in cases where, but for the vice of the animal, the owner would be free from fault. Dickson v. JVIcCoy, supra; Farber v. Roginsky, 123 App. Div. 38, 107 N. Y. 755; Mills v. Bunke, 59 App. Div. 39, 69 N. Y. Supp. 96. See notes to Form 950, and Quarman v. Burnett, 6 M. & W. 499. A com- plaint is demurrable if it fails to al- lege that defendant was the owner of the horse, or show that he was in control of it. Hart v. Washington Park Club, 157 lU. 9, 29 Lawy. Rep. 492. 1034 Abbott's Forms Of Pleading II. That on or about the day of > 19 > said defendant wrongfully and negligently suffered the said horse to be at large in and upon a public street of the city of , known as street, without being properly attended or tied. III. That on said day plaintiff was passing along upon said public street, 'upon the sidewalk thereof, and in a thickly settled and much traveled part of said city; that the said horse was then standing nearby the said sidewalk on which the said plaintiff was then walking as aforesaid, with- out being in any manner guarded or tied; that the said horse then and there suddenly rushed upon the said plaintiff, upon the said sidewalk, and kicked him, the said plaintiff, with great violence. ^"^ IV. [Allege injury and damage; see Forms 973-980.] Wherefore [etc., demand of judgment]. 953. Against Owner of Dog for Injury to Sheep and Goats. I. That at the time hereinafter mentioned, the defendant kept a dog [well knowing him to be mischievous and dis- posed to worry and kill sheep and lambs],"* which said dog, on or about the day of , 19 , and on other days between that and the commencment of this action [wrongfully came upon the plaintiff's land, and there] hunted, chased, bit and worried sheep and lambs of the plaintiff, being of the value of dollars. II. That by means thereof of the said sheep and lambs of the plaintiff, being of the value of dollars, *" Where there is no proof of the upon private premises and caused animal's vicious tendencies, it is not injury. Mills v. Burke, 59 App. Div. sufficient to prove the negUgent 39, 69 N. Y. Supp. 96. leaving of the animal unattended and *>* These words in brackets are un- untied; it must also be shown that necessary in an action in New York, this negUgence was the proximate proof of notice being dispensed with cause of the injury, e. g., that the in such cases by the County Law, horse ran away. Martin v. Althaus, § 117. The killing of cattle is not 139 App. Div. 622, 124 N. Y. Supp. within this statute. Van Etten v. 83. Same principle, where a horse, Noyes, 128 App. Div. 406, 112 N. Y, turned loose by its owner, strayed Supp. 888. Actions for Negligence 1035 died, and became of no value to the plaintiff, and the residue of the said sheep and lambs of the said plaintiff, being also of great value, were injured, and rendered of no value to the plaintiff, to his damage dollars. Wherefore [etc., demand of judgment]. 954. Injury from Runaway Horse.^"^ I. That on or about the day of , 19 , plaintiff was [driving with due care along a public highway known as at ] when the vehicle in which he was driving was overturned by being struck by a horse and vehicle owned by defendant. II. That defendant's said horse at the said time and place was running away and was wholly unattended; that such running away was caused by the negligence of the defend- ant in not keeping said horse under proper control and in driving said hOrse upon and along a railroad where as de- fendant well knew the proximity of moving engines and cars would cause said horse to be and become frightened and unmanageable [or otherwise according to fact]. [Or, if the negligence consisted in having the horse unfastened, substitute:] II. That said running away of defendant's said horse was caused by defendant's negligence in leaving said horse untied and unattended, and the vehicle attached also- un- fastened in any way, upon said public highway.] ^°^ [Or, if the horse was insecurely tied: II. That said running away of defendant's horse was caused by defendant's negli- gence in leaving said horse upon the public highway tied and fastened only by means of a defective and insufficient tether *^ Proof that a horse was running ^" The fact that the horse was away unattended on a public ,busy left in such condition requires sub- city street is prima fade evidence of mission to the jury of defendant's negligence on the part of the owner, negligence. Dooling v. City of New Hollaran v. City of New York, 168 York, 148 App. Div. 713, 132 N. Y. App. Div. 469, 153 N. Y. Supp. 447; Supp. 1012. See, also, Form 952, Kelly V. Adelmann, 72 App. Div. 590, and notes. 76 N. Y. Supp. 574. 1036 Abbott's Foems of Pleading and in an improper and insecure manner, by reason whereof said horse broke loose and ran upon the said highway un- attended, and upon plaintiff.]^"' III. [Allege injury, as in Forms 973-980.] Wherefore [etc., demand of judgment]. , 955. Against Owner of Horse Negligently Driven by Serv- ant upon Pedestrian/"^ I. That on or about the day of , 19 , the plaintiff was upon [and walking across] a public street known as street, near the corner of street, in the city of II. That defendant was on said day the owner and in control *•" of a certain truck or vehicle, and two horses, which were then passing along said street engaged in defendant's business, and in possession of defendant's servant, who was driving the same in and about the discharge of his duty and in the scope of his employment."" III. That defendant and his said servant so carelessly, recklessly and negligently drove and managed said horses and truck that by reason thereof said horses and wagon struck the plaintiff with great violence.*" ™ From Thomas v. Plath, 44 App. ant was either the owner or had the Div. 291, 60 N. Y. Supp. 621. custody of a horse which causes in- Against proper objection a com- jury through running away. Hart v. plaint alleging that the horse was Washington Park Club, 157 lU. 9. left unsecured would not permit *'" The mere allegation that plain- proof that it was inadequately se- tiff was injured by a horse negli- cured. See Furlong v. Winne, etc., gently driven "by the agent and Co., 166 App. Div. 882, 152 N. Y. servant of the defendant," without Supp. 245. Of course if plaintiff is allegation of defendant's ownership in doubt, the charge may be that of the horse, or that the driver was the horse was left either unfastened engaged in defendant's business and or insecurely tied. acting within the scope of his em- ^"^ A municipal ordinance regulat- plojrment is insufficient to show ing the speed and manner of driving defendant's liabUity. Cullen v. of vehicles is admissible without Thomas, 153 App. Div. 797, 138 N. being pleaded. See Meyers v. Bar- Y. Supp. 600. rett, 167 App. Div. 170, 152 N. Y. "i Under such a general allegation Supp. 921. any evidence tending to show such *™ It must be alleged that defend- negligent and careless driving will Actions for Negligence 103? IV. [Allege injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 956. The Same, Negligently Driven against Plaintiff's Vehicle. I and II. [As in preceding form.] III. That the defendant then and there carelessly and negligently drove and managed his said horses and vehicle,* behind the plaintiff's vehicle and horse, and that by reason of his said negligence, and without fault or negligence of the above-named plaintiff, said defendant's vehicle and horses struck plaintiff's vehicle with great force and violence; "^ that by reason of such negligent act of said defendant, plaintiff was thrown out. IV. [Allege injury; see Forms 973-980.] Wherefore [etc., demand of judgment]. 957. The Same, for Negligent Driving where the Damage Occurred in Plaintiff's Endeavor to Avoid a Collision."* [As in preceding form to*, continuing:] and so unskillfuUy be admissible. Meyers ». Barrett, a public street; nor may the com- supra. plaint be amended at the trial to so Such a general allegation is good as charge. Grapp v. Great Atl., etc., against demurrer, or motion for Co., 205 N. Y. 617. judgment on the pleadings. Old- *^^ This allegation is sufficiently field V. N. Y., etc., R. Co., 14 N. Y. definite against a motion. Hanson v. 310, aff'g 3 E. D. Smith, 103; Hicks Anderson (Wise), 62 N. W. Rep. V. Serano, 74 Misc. 274, 133 N. Y. 1055. Where the complaint alleged Supp. 1102, aff'd 149 App. Div. 926. that defendant "negligently, reek- It has been also held that the lessly, and willfully so drove and man- specific act of negligence is suf- aged his horses" as to cause the injury ficiently shown as against a motion complained of, and the case was tried to make the complaint more def- on the theory of negligence, held, that inite. Agnew v. Brooklyn CityR. the words, "recklessly and willfully," Co., 20 Abb. N. C. (N. Y.) 235; were mere surplusage, and the ques- Hanson v. Anderson, 62 N. W. Rep. tion whether defendant's conduct 1055. was wiUful could not be submitted to But under such allegations proof the jury. Moore t). Drayton, 40 N. Y. is not admissible to show that the State Rep. 933, 16 N. Y. Supp. 723. horse was vicious and non-manageable ^" A charge in the complaint that and therefore dangerous to drive on plaintiff was violently thrown out of 1038 Abbott's Forms Of Pleading and improperly conducted the said wagon and horses that the same would then necessarily and inevitably have been driven upon and forced against the said carriage and horse of the plaintiff and have damaged them, if the said carriage and horse of the plaintiff had then continued and remained upon the said highway as aforesaid. IV. That thereupon the plaintiff, in a reasonable and necessary endeavor under the circumstances to avoid said damage, necessarily and with proper and reasonable care and skill in that behalf, guitled his said carriage and horse to and off one side of the said highway, and in so doing his said carriage and horse, without any negligence, unskillfulness or default of the plaintiff, but solely and immediately in consequence of the negligence, violence and improper con- duct of the defendant as aforesaid, and plaintiff's endeavor to avoid damage therefrom, were upset and injured. V. [Allege injury as in Forms 973-980.] 958. Negligently Driving High-spirited Horse Where it^ Would Become Frightened and Unruly.*^* I. That at , and on or about the day of ,19 , the defendant, knowing that a horse owned and then being driven by him was nervous, high-spirited and unaccustomed to the cars,*" negligently drove it within a few feet of a moving train, and negligently attempted to compel it to remain there while the train was passing, and that after defendant knew that said horse was greatly fright- ened and becoming unmanageable he negligently omitted his wagon by reason of a defect in the upon which plaintiff recovered, con- highway is not supported by proof sisted in attempting to drive an un- that he voluntarily leaped from the trained and spirited horse up and wagon through imminent peril and in down a city block, despite his unruly endeavor to avoid'the accident. Lund conduct. V. Tyngsboro, 11 Cush. (Mass.) 563. *'* This allegation does not show a ^" Adapted from West v. Wood- ground for recovery, but states a ruff, 112 App. Div. 133, 97 N. Y. circumstance tending to show de- Supp. 1054. In Conway v. Rheims, fendant's negligence. West v. Wood- 107 App. Div. 289, 95 N. Y. Supp. ruff, supra. 119, the negligence charged, and Actions for Negligence 1039 to drive it away but persisted in trying to compel it to remain beside said cars and the engine attached thereto. II. That by reason of defendant's said negUgence, said horse ran away, and struck and ran over plaintiff. III. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. 959. For Negligent Driving of Automobile. ^^^ [Sustained in Hicks v. Serano, 74 Misc. 274, 133 N. Y. Supp. 1102.] «^ I. That heretofore and on or about the day of , 19 , while plaintiff in the exercise of due care was proceeding in an automobile belonging to plaintiff upon the highway leading from to in County, State of New York, said defendant so carelessly and negligently managed and operated an auto- mobile owned by him *^* that the same was violently pro- *'° See, also, next form. *!' Affirmed without opinion in 149 App. Div. 926. The court sustained the complaint against a motion for judgment on the pleadings. It is also sufficient under the decision in Peter- son V. Eighmie, 175 App. Div. 113, 161 N. Y. Supp. 1085. "8 If the owner was not operating the car at the time, nevertheless the charge of negligence in operation may be made as that of the defendant. Harris v. Baltimore, etc.. Works, 112 App. Div. 389, 98 N. Y. Supp. 440, aff'd 188 N. Y. 141. If the allegation charges that the negligent operation was by another than the owner, then to hold the owner responsible the driver must be alleged to have been the employee or agent of defendant owner and engaged in his business, as in paragraph II of Form 955. Cullen V. Thomas, 153 App. Div. 797, 138 N. Y. Supp. 600. If owner and operator are sued together, the complaint should allege the ownership by the one, and that the car was being op- erated by the other as the employee or agent and engaged in the business or under the direction of the owner. See Form 955, paragraph II; Stein v. Lyon, 98 Misc. 687, 163 N. Y. Supp. 380; Laks v. Keller, 172 App. Div. 205, 15§ N. Y. Supp. 514; Potts v. Pardee, 220 N. Y. 431; Panjburn v. Buick Motor Co., 151 App. Div. 756, 137 N. Y. Supp. 37, rev'd on another ground in 211 N. Y. 228. Since the owner's hability for the negligence of the operator is of a purely derivative character, a jury cannot render a verdict in favor of the operator and against the owner. Panjburn v. Buick Motor Co., 211 N. Y. 228. In the absence of statute imposing liability, the* head of a family, who is the owner of a motor car, is not liable for a casualty resulting from its use and operation, for pleasure, 1040 Abbott's Forms of Pleading pelled against plaintiff's said automobile, whereby plain- tiff's said automobile was severely damaged."^ II. [Allege character and amount of damage; and if any personal injury, allege as in Forms 973-980.] Wherefore [etc., demand of judgment. 960. The Same, Another Form, with Specific Allegations of Character of Negligence. ^^" I. That while plaintiff was crossing street, a pubUc highway in the [city] of , on or about the day of , 19 , the defendant, and its servant, agent, or employee, so recklessly, negligently and carelessly conducted it and himself toward the plaintiff herein in the conduct, operation, management or control of one of de- fendant's automobiles, in that the said automobile was driven at a high, reckless and unlawful rate of speed, and in that there was no gong, whistle or any other notice or warning whatsoever given plaintiff of the approach of said automobile, that said automobile was caused and permitted to strike, knock down and run over the plaintiff herein; that plaintiff was free from contributory negligence, and that the injm-ies which he sustained as hereinafter alleged were caused solely by reason of the recklessness, negUgence and carelessness of the defendant, and its agent, servant or employee in control of said automobile. by a member of his family who oper- prima facie evidence of the owner's ates negUgently. Farthing v. Strouse, responsibiUty for an accident caused. 172 App. Div. 523, 158 N. Y. Supp. by the driver's negUgence. Potts v. 840; Potts V. Pardee, supra. Contra, Pardee, 220 N. Y. 431; Stewart v. Birch V. Abercrombie, 74 Wash. 486, Baruch, 103 App. Div. 577, 93 N. Y. 133 Pac. Rep. 1020; Kayser v. Van Supp. 161; McCann v. Davison, 145 Nest, 125 Minn. 277. For other de- App. Div. 522, 130 N. Y. Supp. 473. cisions on this general subject, see ^2° Of course if plaintiff alleges spe- Bourne v. Whitman, 209 Mass. 155, cific acts of negligence his general 172; Missell v. Hayes, 86 N. J. L. allegations of negligence will be lim- 348, 91 Atl. Rep. 322; Campbell v. ited thereby, and he may not prove Arnold, 219 Mass. 160,. 106 N. E. or recover upon other grounds. See Rep. 599; Guignon v. Campbell, 80 Capell v. N. Y. fransp. Co., 150 Wash. 543, 141 Pac. Rep. 1031. App. Div. 723, 135 N. Y. Supp. ^1* Ownership of an automobile is 806. Actions for Negligence 1041 II. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. 961. For Injuring Borrowed or Hired Chattels. I. That on or about the day of , 19 , defendant had in his possession and use [a yoke of oxen] belonging to plaintiff. II. That defendant, while using and working said [oxen] carelessly and neghgently [state character of negligence com- plained of, as:] rolled a stump upon, and thereby broke a leg of one of them, and afterwards killed the same, to plain- tiff's damage dollars. Wherefore [etc., demand of judgment]. 962. Negligently Watching Fire which Spread to Plaintiff's Land.*'' I. That on the day of , 19 , plaintiff was the owner of and in possession [or, was tenant in pos- session] of about acres of land in [briefly describe]. Hi That on said day defendant, negligently kindled a fire on land next adjoining plaintiff's, and although the surface of the groimd where he kindled the fire and thence to and over plaintiff's land ^^^ was strewn with dry and combustible material ^^' defendant so neghgently and care- lessly watched and tended said fire ''^^ that, without fault or negligence on plaintiff's part, said fire spread to plain- tiff's said land and consumed tons of hay and *^^ See note on liability for spread held, that plaintiff could recover on of fire in 22 Abb. N. C. (N. Y.) 377. proof of negligence only. Richter v. If the fire was set by a third person, Harper, 95 Mich. 221. the defendant must be shown . re- *^' It is safer to state thus or other- sponsible for his act. Herrmann v. wise facts showing defendant's duty Sarles, 42 App. Div. 268, 58 N. Y. of care, though proof of such a con- Supp. 1017. dition of defendant's land was admit- *^^ Although the complaint alleged ted without an allegation thereof in that on a day specified defendant Lucas v. Wattles, 49 Mich. 380. "did then and there willfully, negU- ^^^ This allegation was held suffi- gently and unlawfully cause to be set cient as against an objection at the fire to the said pile of rubbish," etc., trial in Keating v. Brown, 30 Minn. 9. 1042 Abbott's Forms op Pleading bushels of wheat belonging to plaintiff, and of the value of dollars, and destroyed plaintiff's grass growing upon acres of said land,^^^ of the value of dollars, in all to his damage dollars. Wherefore [etc., demand of judgment]. 963. By Electric Shock from Improperly Charged Wires. *^^ [After allegations of defendant's corporate capacity, and that it was engaged in the business of furnishing electricity to the public in the city of , and that it had constructed and maintained poles, wires and fixtures upon the city streets and in and upon houses of its various customers:] II. That prior to and on or about the day of ,19 , defendant had a contract with plaintiff whereby defendant agreed to furnish to plaintiff such elec- tricity as might be necessary for his use in and upon the premises occupied by him as his residence at , in said city, and that in pursuance of said contract defendant had placed and was maintaining its wires and other appU- ances in and upon plaintiff's said premises. III. That by reason of the carelessness and negligence of said defendant in furnishing said electricity to plaintiff under said contract, and by reason of the careless, impropef, imperfect and negligent condition of the poles, wires, fix- tures and other appliances of defendant used and main- tained by it for the purpose of so furnishing such electricity, the wiring in and upon plaintiff's premises on said day be- came charged with a high, intense and dangerous volume "5 Injuries to realty and to per- Witmer v. Buffalo, etc., Power Co., sonalty from the single wrongful act 112 App. Div. 698, 98 N. Y. Supp. give rise to two causes of action, and 781; aff'd 187 N. Y. 572, where a re- if united it must appear that they covery by plaintiff was sustained. It do not require different places of was held that a provision in the con- trial. Jacobus V. Colgate, 217 N. Y. tract that defendant should not be 235. The commingling in the form hable in any event for damage to is only ground for motion, not for person or property arising, accruing demurrer. See note 3 to Form or resulting from the use of the light, 209. did not relieve it from liabiUty for *'^ Adapted frosa complaint in its own negligence. Actions for Negligence 1043 and current of electricity, far in excess of that necessary or proper for the purposes of plaintiff's use under his said con- tract, and that plaintiff, while in the exercise of due care and without negligence on his part, came in contact with one of said wires upon which electricity was being delivered in his premises as aforesaid by said defendant, and was shocked and injured as hereinafter alleged. rv. [Allege resulting injuries as in Forms 973-980.] Wherefore [etc., demand of judgment]. 964. Against Gas Company for Explosion Caused by Leakage into Private Premises. [Sustained in Neuwelt v. Cons. Gas Co., 94 App. Div. 312, 87 N. Y. Supp. 1003.] ^" I. That at the times hereinafter mentioned the defend- ant was and now is a domestic corporation, engaged in the manufacture and distribution through mains and supply pipes throughout the city of , of illuminating gas. II. That on or about the day of , 19 , in the premises known as street, in said city, an explosion of illuminating gas so manufactured by defend- ' ant and distributed by it as aforesaid, which had leaked and escaped from its mains and supply pipes into said premises, suddenly occurred without any negligence on the part of plaintiff, and wholly in consequence of the negligent and improper manner in which- the gas» pipes, gas mains, and supply pipes of the defendant in said premises, had been and were constructed, maintained and managed by the defendant, its agents and servants; [that the defendant had notice and knowledge of such leakage, and was given by plaintiff an opportunity to remedy such leakage]. ^^^ III. That the gas which so exploded leaked from such pipes and mains into said building, and had been ignited *" The court refused to direct ^^ Necessary if the leakage was plaintiff to furnish a bill of particu- upon the private premises. Mowers lars as to the particular negligence v. Munic. Gas Co., 142 App. Div. 169, which plaintiff claimed caused the 126 N. Y. Supp. 1035. explosion. % 1044 Abbott's Forms of Pleading by other gases or other substances, and the explosion which resulted as aforesaid caused plaintiff's injuries and damage as hereinafter alleged. IV. [Allege injuries as in Forms 973-980.] Wherefore [etc., demand for judgment]. 965. Against Two or More Persons Whose Separate Negligent Acts Contribute to Injury.^^^ [Sustained in Lynch v. Electron Mfg. Co., 94 App. Div. 408, 88 N. Y. Supp. 70.] I. That on or about the day of j 19 , plaintiff was in the employ of the defendant, Y. Z., as a workman [assisting in instalhng electrical appliances in the elevator in the Hotel in the City of New York]; that the defendant, W. X., had the contract for building, furnishing and equipping said [elevators] and as such con- tractor had the full and exclusive charge, management and control of said building, furnishing and equipping, and of the work in connection therewith. II. That the defendant, Y. Z., plaintiff's employer, had the contract for the installation of the electrical apphances in said elevators, and as such contractor had the full and ex- elusive charge, management and control of said installation and of the work in connection therewith. III. That it was the duty of the defendant, W. X., to exercise care in the operation of. said elevators, so as not to injure plaintiff while at work in and around the same, and '''' Held, in the case above cited, and though there may be differing that under such circumstances the degrees of negligence by each. Stem- defendants are joint tort feasors, and fels v. Met. St. Ry. Co., 73 App. as such Uable to be sued together. Div. 494, 77 N. Y. Supp. 309, aff'd See, also. Form 891. 174 N. Y. 612; see, also, cases therein An action may be maintained cited, against two joint tort feasors whose The complaint should link the de- negligence contributes to produce fendants together as joint tort feasors, plaintiff's injury, even though the and allege that the negUgence of both same obligations do not rest upon caused the plaintiff's injury. Croaley each with respect to plaintiff. This v. Schwarzchild, etc., Co., 141 is so even though one may owe to App. Div. 473, 126 N. Y. Supp. the other a higlj^r degree of care, 301. Actions for Negligence 1045 that it was the duty of the defendant [employer] to provide a safe place for plaintiff to work, and to take all necessary- precautions to guard against injury to him while in the per- formance of his duties. IV. That in violation of their respective duties toward plaintiff, as aforesaid, and on the day aforesaid, the defend- ant, W. X., negligently put an elevator in operation whUe plaintiff was working in the shaft thereof, and the defend- ant, Y. Z., negligently failed to furnish plaintiff a safe place to work, and to take necessary precautions to prevent injury to him, and negligently failed to give notice to those having the right to use said elevator of plaintiff's presence in the shaft. V. That by reason of such failure on the part of the de- fendant Y. Z. to notify the defendant W. X. that plaintiff was working in said shaft, and his negligence in failing to furnish plaintiff a safe place to work, and through the negli- gence of defendant W. X. in failing to exercise care in the operation of said elevator, the elevator on said day and while plaintiff was so woi-king in the shaft thereof was put in motion, and struck and crushed plaintiff, and caused him the injm-ies hereinafter alleged. VI. [Allege injuries, as in Forms 973-980. \ Wherefore [etc., demand for judgment]. 966. Injury Received When Attempting to Rescue Another from Danger.^'" I. [Allege circumstanced of plaintiff's injury, as:] ^^"^ That "» The fact that plaintiff volun- v. L. I. R. Co., 43 N. Y. 502; Gibney tarily placed himself in danger to v. State, 137 N. Y. 1; Linnehan v. prevent possible injury to another Sampson, 126 Mass. 506; Manthey is relevant only upon the matter of v. Rauenbuehler, 71 App. Div. 173, his contributory negligence. If the 75 N. Y. Supp. 714; Furlong t). Winne, situation be such as shows imminent etc., Co., 166 App. Div. 882, 152 danger of serious injury, or death, N. Y. Supp. 215; Hollaran v. City the law will not impute negligence of N. Y., 168 App. Div. 469, 153 N. Y. to another's effort to avert it, unless Supp. 447; Spooner v. D., L. & W. R. made under such circumstances as Co., 115 N. Y. 22. to constitute rashness in the judg- "' It is probably not essential to ment of prudent persons. See Eckert allege the circums^nces under which 1046 Abbott's Forms of Pleading on or about the day of , 19 , plaintiff was injured as hereinafter alleged in attempting to stop a run- away horse belonging to defendant, which was then upon a public highway known as street in , and was menacing the hves and safety of plaintiff's afid other children who were playing at or near the roadway toward which said horse was running. II. [Allege defendant's negligence as in appropriate form; if for permitting his horse to run away, see Form 954-.] III. [Allege injury as in Forms 973-980.] Wherefore [etc., demand for judgment]. X. TO RECOVER OVER AGAINST ONE WHOSE FAULT CAUSED THE INJURY 967. By Municipal Corporation, for Recovery Over Against the Creator of Obstruction or Defect in Highway.*'^ [Adapted from Village of Port- Jervis v. First National Bank of Port Jervis, 96 N. Y. 550.] plaintiff acted, unless the other facts / alleged show that he had voluntarily placed himself in a position of dan- ger; for example, if the plaintiff is injured whUe attempting to rescue a fellow workmen from death, under conditions produced by the employ- er's negligence, the complaint will undoubtedly suffice to permit the introduction of proof of the circum- stances attending plaintiff's injury although such circumstances are not detailed. Such seems to have been the condition of the complaint in O'Brien v. Erie R. Co., 139 App. Div. 291, 123 N. Y. Supp. 1040. Never- theless an allegation of the circum- stances under which plaintiff acted is proper, and may prevent a claim of surprise at the trial. "^ The generally accepted theory of these actions by the one liable per infortuniam to recover over from the one liable by his own fault is subrogation, that is to say, that they are actions for tort, in which the recovery against plaintiff is the measure of damages, rather than actions on constructive contract for money paid to defendant's use. See Wash. Gas Co. v. District of Colum- bia, 161 U. S. 316; City of N. Y. v. Corn, 133 App. Div. 1, llf N. Y. Supp. 514; Mayor, etc., v. Brady, 151 N. Y. 611; Trustees, etc., v. Foster, 156 N. Y. 354; City of Rochester v. Campbell, 123 N. Y. 405; Village of Port Jervis v. First National Bank, 96 N. Y. 550; Prescott v. Le Conte, 83 App. Div. 483, 82 N. Y. Supp. 411, aff'd 178 N. Y. 585. The former judgment is conclu- sive in the second action, on the de- fendant, if he had notice to defend, of the amount of damages, the ex- istence of the obstruction or defect Actions for Negligence 1047 I. [Allegation of corporate capacity of parties; see Forms U, 54 and 836.] II. That in the year 19 , the defendant was the owner of premises abutting on street, in the said city of ; that on or about the day of , 19 , the defendant caused the following obstructions to be made in or upon said street [description] ; that it was the duty of said defendant to cause said obstruction to be covered or guarded and to have suitable barriers and warn- ings to prevent passers-by on said street from falling therein; that the defendant neglected and failed to perform such duty, and such obstruction was wrongfully and negligently suffered and permitted to be and remain uncovered and with- out any proper or suitable guards, barriers or warnings to prevent passers-by or over said street from injury thereby, "^ so that on the day of , 19 , one M. N., in the street, and that the injured party was free from negligence. Cases, supra. But the exact character and loca- tion of the defect may still be an open question. See City of Ithaca V. Crozier, 148 App. Div. 493, 132 N. y. Supp. 863. Also, whether the defendant created or was responsible for the defect. City of N. Y. v. Lloyd, 148 App. Div. 146, 133 N. Y. Supp. 118; Scott V. Curtis, 195 N. Y. 424. A complaint by the city against the property owner, alleging that the person injured commenced an action against the plaintiff and recovered a judgment, and that the injuries for which the judgment was obtained were caused by the negligent act of the defendant, is sufficient, ■ on de- murrer, although it does not allege all the facts which would justify a recovery ^ by the person injured against the city, such as notice to the city of the defegt. Mayor, etc., of N. Y. V. Dimmick, 20 Abb. N. C. (N. Y.) 15. *^' Necessary, even when the one who created the obstruction, or caused the defective condition, was given notice of the action against the city, with opportunity to defend it. Scott V. Curtis, 195 N. Y. 424;' Mayor, etc., v. Brady, 151 N. Y. 611; City of N. Y. v. Corn, 133 App. Div. 1, 117 N. Y. Supp. 514; Prescott V. LeConte, 83 App. Div. 482, 82 N. Y. Supp. 411, aff'd 178 N. Y. 585. Where plaintiff failed to establish on the trial that the defendant had been notified of the previous action against the city. Held, that the omission to give such notice did riot go to the city's right of action, but simply changed the burden of proof, and imposed upon the city the neces- sity of again litigating and estab- lishing all of the actionable facts. Port Jervis v. First Natl. Bank of Port Jervis, 96 N. Y. 550. 1048 Abbott's Forms op Pleading while exercising reasonable care and prudence in" traveling along said street, fell into the said obstruction and thereby- received great bodily injury [and was made and has been ever since and still remains sore, sick and disabled, and has ever since suffered great pain and has been put to great expense in trying to be cured of such injuries]/^* III. That on or about the day of , 19 , said M. N. duly commenced an action against this plaintiff, said city of , in the Court of the State of , to recover damages for such injuries; that the aforesaid court duly rendered a judgment against plaintiff and in favor of said M. N. for the sum of dollars [and that said judgment was sustained on appeal by the Court]. That on or about the day of , the said plaintiff was forced to, and did pay, to said M. N. the whole amount of said several judgments with the interest accrued thereon to said date, being the sum of dollars *^^ [and that in addition to said sum so paid said plaintiff had, on and prior to that date, necessarily and for defendant's benefit and at his request expended the sum of dollars for its necessary disbursements in defense of said action]. ^^® IV. That the defendant in this action was notified by this plaintiff of the commencement of said action against said plaintiff, and was required and given opportunity by this plaintiff to defend said action; that the defendant knew or should have known that the damages therein claimed were caused by the wrongful and negligent acts of the defendant engaged in creating such obstruction, and that the defendant was liable over to plaintiff for any sum recovered therein, and that it was within the right and power of said defendant to intervene in said action and assume the defense thereof; "* Unnecessary when the former **' Such disbursements would be judgment is conclusive. recoverable upon principles similar *'* An allegation that the judgment to those applied between a surety recovered has been paid is essential, and his principal. Clinton v. Boehm, 139 App. Div. 73, 124N.Y.Supp.789. Actions for Negligence 1049 that the defendant did not defend said action, and has not paid to plaintiff any part of the amounts so as aforesaid paid on said judgment or in defense of said action. V. That previous to the commencement of this action payment of the amount of the judgment in said action, as well as of the several amounts hereinbefore stated as paid, with interest from the time of their respective pajonents, was duly demanded from the defendant, but refused, and no part thereof has been paid. Wherefore [etc., demand of judgment].'^^'' 968. By Joint Tort Feasor for Recovery Over Against the Other Whose Affirmative Act of Negligence Caused the Injury.*^* [Allege, in accordance with the precedents under the par- ticular facts involved, as given elsewhere in this chapter, the relations between the plaintiff and defendant, so as to show that the plaintiff's negligence was passim, while defendant's was affirmative.] *^^ [Allege the injury to some third person, as though in a com- plaint by him.] **" That said injuries so sustained by said M. N. resulted *" See Form 127 for a similar proved construction, but that de- precedent except that it is based feadant's lines were not properly on the theory of money paid to de- erected at a point where they crossed fendant's use. over plaintiff's wires, that defendant *^The precedent is adapted from had failed to obey orders of the the complaint in Fulton Co. Gas municipality to remove them; that & Elec. Co. V. Hudson River Tel. plaintiff's inspection of its own lines, Co.," 200 N. Y. 287; the Court of or of defendant's wires at poiftt of Appeals did not pass upon the suf- crossing, would not have revealed ficiency of the complaint, but it the improper condition that caused was upheld in the Appellate Di- the injury, and that plaintiff had no vision (130 App. Div. 343, 114 knowledge or notice of it. N. Y. Supp. 642). See, also, other **> In the precedent plaintiff al- forms following, and notes to Form leged the falling of one of defendant's 967. wires upon plaintiff's wires, the ^^ In the precedent plaintiff al- charging of the fallen wire with leged that it had erected its poles defendant's electric current, and in- and strung its wires for transmission jury to the person who came in con- of electric power of proper and ap- tact with the fallen wire. 1050 Abbott's Forms of Pleading solely from and were caused and occasioned by the negligent acts and omissions of the defendant herein [state how, as:] in the construction and maintenance of its said lines and wires as and in the manner hereinbefore described, and not by reason of any act, omission, fault, or neglect of plaintiff. That thereafter and on or about the day of , 19 , said M. N. commenced an action against plaintiff and defendant jointly to recover damages for his said in- juries; that said action was defended by plaintiff and de- fendant under separate answers, but said M. N. finally recovered a judgment for dollars against both plaintiff and defendant as defendants therein [which was subsequently affirmed on appeal to with dollars costs of appeal], and that said judgment [and the judgment of affirmance thereof] were collected wholly and entirely from plaintiff [or show the portion paid by plain- tiffV That by reason of the negUgent acts and omissions of the defendant as aforesaid, and by reason of the resultant in- juries to said M. N., and the consequent action brought by him as aforesaid, this plaintiff sustained great damage and injury, and was unjustly compelled to expend and pay out large sums of money, for which expenditures and disburse- ments it is entitled to be indemnified in this action by defendant. That plaintiff's said expenditures and disbursements are as follows: [ dollars paid upon the aforesaid judg- ment; dollars paid for the services of counsel in defending the said action brought by M. N., and dollars of other disbursements therein], amounting in all to dollars. [That plaintiff has no adequate, sufficient or available remedy at law, for the redress of the damage and injuries sustained by it as hereinbefore set forth.] *^^ "1 See Forms 969 and 970, follow- *«The plaintiff's theory in the ing, for allegations where plaintiff precedent was apparently an action was sued alone and gave notice and in equity for reimbursement; this is opportunity to defendant to defend. not the usually accepted theory, Actions foe Negligence 1051 Wherefore, plaintiff demands judgment directing de- fendant to indemnify plaintiff for the damage and injury sustained by it as aforesaid, by paying to plaintiff the afore- said sum of dollars, laid out and expended by it, and for such other and further relief as may be just, with the costs of this action. 969. Another Form, By Contractor, to Recover Over Against Sub-Contractor.**' I. [Allege making of contract by plaintiff, as principal con- tractor, as:] That on or about the day of , 19 , plaintiff made a contract with the Railroad Company, whereby plaintiff agreed to build an extension of its railroad from to II. [Allege making of sub-contract by defendant with plain- tiff, as:] That on or about the day of » 19 j defendant [W. X.] made a sub-contract with plaintiff, whereby he agreed to build the foundations for said exten- sion [the performance of which work said defendant subse- quently transferred to the defendants Y. Z. and X. Z., who actually did the work thereof]. III. [Allege defendants' negligence, as:] That the defend- ants in building said foundations negligently piled and scattered or allowed to be scattered the dirt and stones from excavations made by them, upon the sidewalk at so as to obstruct a large portion of said public highway. IV. [Allege injury to the third person, as:] On information and belief, that on or about the day of , 19 , one M. N., while crossing upon said sidewalk at said place, was thrown down by such dirt and stones so negli- gently left by defendants and negligently permitted to re- main without barrier or other warning or any light thereon. which is an action at law for in- in Corning v. Spelman, 130 App. demnity. See note 432 to Form 967. Div. 767, 115 N. Y. Supp. 366. *■" Adapted from complaint in See, also, Forms 967 and 968, for Phoenix Bridge Co. v. Creem, 185 other precedents, and notes; also N. Y. 580; see, also, the complaint notes to Form 967. 1052 Abbott's Forms of Pleading V. That for his injuries resulting from being so thrown down, said M. N. brought an action against plaintiff in the Court to recover damages, and such proceedings were thereafter had in said action that a judgment was entered against this plaintiff for the sum of dollars, which plaintiff has paid. VI. That plaintiff gave due and timely notice to defend- ants of the commencement of said action, and of the subse- quent proceedings therein, and duly offered to defendants opportunity to take charge of the defense thereof. VII. [Allege 'plaintiff's additional outlays for counsel and disbursements in such action.] WHEREroRE [etc., demand of money judgment]. 970. Another Form, By Owner of Real Property to Recover Over from the one Primarily Liable ; Failure to Replace Cover of Coal-Hole.^" [Allege the facts showing a cause of action for negligence having accrued to the injured person, against both plaintiff and defendant, but for an injury which was caused by defendant's active or affirmative negligence, as:] I. That at the times hereinafter mentioned plaintiff was the owner of premises known as in the city of ; that said premises abut on said street, and that there was a coal-hole or shute in the sidewalk in front thereof, leading into the cellar, and that said coal-hole was appur- tenant to said premises. II. That on or about the day of , 19 , defendant sold to plaintiff some coal, and engaged to deliver **'^ From Scott v. Curtis, 195 N. Y. free from contributory negligence, 424, where a recovery by plaintiff but that in addition it was incum- was reversed because of failure to bent on plaintiff to establish the de- establish defendant's negligence; the fendant's affirmative negligence as court considered that the judgment charged herein. roll in the action against the owner See Forms 967-9, for other prec- might be held to have established edents; also see general note on the that the plaintiff therein was injured character of the action to Form by falling into the coaJ-hole, and was 967. Actions for Negligence 1053 the same at said premises and into said cellar; that while in the act of making deUvery of said coal, and putting the same into the cellar of said premises, defendant secured from plaintiff and assumed control of said coal-hole, and the cover thereof, and removed said cover; that defendant thereafter so neghgently and carelessly omitted to replace said cover, or replaced it so improperly and insufficiently, that one M. N., who was walking along said sidewalk on said day, fell into said coal-hole; that said fall was CEtused wholly by defendant's negligence as aforesaid, and was not caused by the fault or negligence of plaintiff. III. [Allege injury to the third person, as in a complaint by him.] IV. [Show that plaintiff has been compelled to make pay- ment for the injury, as:] That thereafter and on or about the day of , 19 , said M. N. commenced an action against this plaintiff in the Court, that plaintiff interposed an answer therein, and that thereafter the same was tried and a judgment recovered by said M. N. against plaintiff for the sum of dollars, which plain- tiff was compelled to pay and did pay on the day of , 19 ; that plaintiff necessarily expended the further sum of dollars, in and about the defense of said action. V. That defendant herein had due and actual notice and knowledge of said action so brought by said M. N. against plaintiff, and was duly requested and required by this plain- tiff to defend the same, and was duly notified by this plain- tiff that he would be held hable for such damage as plaintiff might be put to on account of such action; that defendant has not paid plaintiff any portion of the said total sum of dollars, so paid and expended, although payment thereof has been duly demanded. Wherefore [etc., demand of judgment]. 1054 Abbott's Forms of Pleading 971. By Insurance Company, Subrogated to Rights of Owner of Injured Property/*'^ I. [Allege plaintiff's incorporation, and business of giving in- surance against damage of the character which is to be shown.] II. [Allege the cause of action against the defendant, -as it originally accrued on behalf of the one insured, and just as though it were being brought by him; see appropriate form else- where in this chapter.] III. That neither this plaintiff, nor said [insured] was guilty of any contributory negligence, but said injury and damage were solely caused by defendant's neghgence as aforesaid. IV. That prior to the occurrence hereinbefore set forth, and on or about the day of , 19 , plaintiff had duly issued to said [insured] a policy of insurance in the usual form [or, the standard form required by the laws of this State], in the sum of dollars, wherein plaintiff had agreed to indemnify said [insured] against loss or damage caused by [fire] to the property hereinbefore described, and that by reason of the legal liability imposed by said poUcy upon plaintiff to pay such damage plaintiff paid to said [insured] on the day of , 19 , the sum of dollars, as and for such damage to said property so caused by defendant's negligence as hereinbefore alleged. V. That before the commencement of this action, and upon consideration of said payment under said policy, said [insured] duly assigned to plaintiff, and plaintiff became subrogated to all rights of said [insured] to recover the amount of said loss so paid under said policy by reason of the negligence of the defendant as aforesaid. Wherefore [etc., demand of judgment]. "5 The aotioa is based upon the Div. 539, 73 N. Y. Supp. 973, aff'd subrogation of the insurance com- 174 N. Y. 508. pany to the rights of the insured, but The precedent is adapted from the the action remains one for negU- complaint in German Am. Ins. Co. gence. German Am. Ins. Co. v. v. N. Y. Gas &c. Co., 185 N. Y. 581, Standard Gas Light Co., 67 App. where a recovery for plaintiff was upheld. Actions for Negligence 1055 972. By State, or Insurance Carrier, AfSinst Third Person Whose Negligence Caused the Injury for which an Employee has Secured Compensation from Employer Under New York Workmen's Compensation Law/** [Under N. Y. Workmen's Compensation Law,§ 29.] I. [If by insurance carrier:] That at the times hereinafter mentioned plaintiff was and now is a domestic insurance corporation, duly authorized to transact the business of workmen's compensation insiirance within the State of New York. II. [Set forth the cause of action for negligence by the injured person against the defendant, in the same method as though the action were being brought by said injured person; see appro- priate forms in this chapter.] III. That heretofore the Workmen's Compensation Com- mission of the State of New York, as authorized so to do by law, duly adopted a rule designated as Rule 51, a copy of which is hereunto annexed marked Schedule A and made part hereof. [Or, the portion of the Rule may be set forth in the complaint, requiring an assignment of the cause of action against the third person in case the injured workman elects to claim compensation under the Compensation Act.] IV. That on or about the day of j 19 , notice of the said injury to said M. N. [injured workman] was duly given by said M. N. to said Commission, and to his said employer, and thereafter and before the commence- ment of this action a claim for compensation therefor was duly presented to said Commission by said M. N. V. That said Commission has heretofore duly adopted a resolution, a copy of which is hereunto annexed marked B, and made a part of this complaint [copy of resolution of the Commission, requiring the filing with the Commission of a "' Adapted from Casualty Co. to a recovery of the amounts already of Am. V. Swett El. L. Co., 174 paid, but may recover the full amount App. Div. 825, 162 N. Y. Supp. 107, " ,of its future liability as well {dictum where the court was of opinion that that if a surplus results, in a death the insurance carrier is not restricted case, it must account therefor). 1056 Abbott's Forms of Pleading notice of election td take compensation under the act, and an assignment to the plaintiff herein oj any cause of action which the claimant may have against the defendant herein for causing the injury through his negligence]. • VI. That heretofore and pursuant to said resolution said M. N. duly executed and delivered an instrument in writing, as required by said resolution, duly electing to take compen- ^ sation under the Workmen's Compensation Law of the State of New York, and duly assigning to plaintiff any cause of action which may exist against the defendant herein arising from the aforesaid injury to said M. N. VII. [Allege payments already made, and plaintiff's full liability for future payments.] Wherefore [etc., demand of judgment]. XI. ALLEGATIONS OF INJURY AND DAMAGE 973. Allegation of Bodily Injury, in General Terms.^^^ That by reason of the defendant's negligence as aforesaid. ^^' This is the allegation with re- spect to bodily injury in the case of Ehrgott V. Mayor, 96 N. Y. 264, where it was held that "these alle- gations are sufficient to authorize proof of any bodily injury resulting from the accident." But the de- cision in the Ehrgott case has been out down and limited in its operation in this important particular: results not necessarily, usually and immedi- ately flowing from the injury re- ceived must be specially alleged in order to be proved. Kleiner v. Third Ave. R. Co., 162 N. Y. 193; Keefe V. Lee, 197 N. Y. 68. ' A general allegation in the form above given, or without partioular- ization beyond referring generally to some portion of the body as having been injured, will permit proof of: (1) details of the immediate bodiljf injury; Fleming v. Tattle, 98 App. Div. 222, 90 N. Y. Supp. 661 (alle- gation of injury to head renders com- petent proof to show- pressure upon and injury to brain); IMogk v. N. Y. &c. Tel. Co., 78 App. Div. 560, 79 N. Y. Sapp. 685 (abnormal thicken- ing of rib cartilages admissible under allegation of serious and lasting bodily injuries); Dix.son v. Brooklyn Heights R. Co., 68 App. Div. 302, 74 N. Y. Supp. 49 (inguinal hernia may be proved under allegations "that plaintiff sustained serious and lasting bodily injuries and injuries to her head, limbs and nervous sys- tem, as well as internal injuries);" Wolf V. Third Ave. R. Co., 67 App. Div. 605, 74 N. Y. Supp. 336 (im- mediate injury to womb competent under allegation that plaintiff re- ceived bruises about her body and limbs, and injuries of an internal nature which may be permanent); Radjaviller v. Third Ave. R. Co., 58 App. Div. 11, 68 N. Y. Supp. 617 Actions for Negligence 105.7 plaintiff suffered great bodily injury, with accompanying pain, that he became and still continues to be sick, sore and (allegation of injury to left side of plaintiff's head and to his entire left side admits proof of an injury to his left ear). (2) Proof of the ■pain and suffering; Abb. Brief on PI., 2d ed., p. 1402, and cases cited; but no recovery allowed for fright (Mitchell V. Rochester R. Co., 151 N. y. 107), unless associated with an actual bodily injury. (Lofink v. In- terb. R. T. Co., 102 App. Div. 275, 92 N. Y. Supp. 386.) (3) Condi- tion up to the time of trial; Carples v. N. Y. &c. R. Co., 16 App. Div. 158, 44 N. Y. Supp. 670. (4) Permanency of injury; only, however, if the al- legation as framed fairly apprises defendant thereof (see form for allegation of permanency of injury, and notes thereto). (5) Secondary or resulting physical and mental in- juries; only, however, when "neces- sarily, immediately and usually" resulting from the primary injury. Keefe v. Lee, 197 N. Y. 68; Kleiner V. Third Ave. R. Co., 162 id. 193; Ehrgott V. Mayor, 96 id. 264. If the complaint contains this general allegation, or, after a par- ticularization adds that other in- juries were received, defendant may have the complaint made more definite and certain as to the inju- ries received, or may have a bill of particulars of the nature and extent thereof, and thus secure more de- tailed information. Greene v. John- son, 126 App. Div. 33, 110 N. Y. Supp. 104 (probably superseding contrary decisions in Steinau v. Met. St. R. Co., 63 App. Div. 126, 71 N. Y. Supp. 256; Enghsh v. Westch. El. R. Co., 69 App. Div. 576, 75 N. Y. Supp. 45.) ^' Effed of inclvding a reference to particular injuries: If plaintiff, in- stead of contenting himself with a general allegation of bodily injuries, makes a specification of particular injuries, he impliedly negatives the existence of injuries other than fairly within the description of those speci- fied. Keefe v. Lee, 197 N. Y. 68. ' If, however, plaintiff attempts to make but a partial specification of his injuries, and adds thereto a gen- eral allegation that he received other bodily injuries, he brings himself within the rule of the Ehrgott case, limited in the way above stated. See Walsh v. Richmond Light &c. Co., 124 App. Div. 533, 108 N. Y. ■* Supp. 950. Proof of Secondaet or Result- ing Physical or Mental Injuries UNDER Particular Allegations: This matter of allegation and proof of secondary or resulting conditions is of great importance, and often dominates the question of the ex- tent of the plaintiff's recovery. The authorities are numerous, and are not all capable of being reconciled; those decisions of the lower courts, which antedate the decision of the Court of Appeals in Kleiner v. Third Ave. R. Co., 162 N. Y. 193, and at- tempt to follow and apply the ruling in the Ehrgott case {supra), may be considered of questionable authority. It must be remembered that a de- cision on the competency and ad- missibility of the proof of the second- ary result may depend upon two considerations, vii.. (1) has the plain- tiff impliedly negatived such result by particularizing others and leaving this one unmentioned, and (2) has proof come in to show that this secondary condition necessarily, im- 1058 Abbott's Forms of Pleading disabled [specially allege: secondary results; permanency of in- jury; medical expenses ;'loss of earnings; etc.; see forms follow- ing]. ' mediately and usually flows from the primary injury; either, or both, of these considerations may be in- volved in a particular decision. I think it will be useful to the pro- fession to present a somewhat ex- tensive review of the more recent holdings of the courts: That plaintiff was injured "in- ternally, externally and permanently about the head" permits proof of injury to any particular organ of the head, and plaintiff allowed a recovery for injuries to ears and brain produc- ing impairment of hearing and mem- % ory. Gilleland v. Greason, 156 App. Div. 46, 141 N. Y. Supp. 136, aff'd 215 N. Y. 744. "That plaintiff is seriously and permanently injured through his head, skull, eyes, and bruises to his right leg and body" does not permit recovery for impairment of hearing. Keefe v. Lee, 197 N. Y. 68. "That plaintiff was greatly shocked and bruised about his body, his spinal cord strained and injured, and his leg bruised, and otherwise in- juring plaintiff and causing him great pain and suffering and he was rendered sick, sore and lame, and now is and ever since has remained sick, sore and lame" permits recovery for diabetes. Eicholz v. N. F. &c. Mfg. Co., 68 App. Div. 441, 73 N. Y. Supp. 842, aff'd 174 N. Y. 519. That plaintiff received severe and painful contusions to her bead, body and arms, and lacerated her scalp, whereby she sustained severe nervous shock and concussion of the brain and injured her eyesight and she was for a time rendered uncon- scious and thereby sustained per- manent injuries and was injured for life, does not permit recovery for heart disease, vertigo, curvature of the spine, and other diseases not necessarily and immediately result- ing from the shock. Kleiner v. Third Ave. R. Co., 162 N. Y. 193. That plaintiff suffered great bodily injury, that he became and still con- tinues to be sick, sore and disabled, and that he was otherwise greatly injured, permits a recovery for a permanent disease of the spine re- sulting from his injuries. Ehrgott V. Mayor, 96 N. Y. 264. (But this case has been expressly limited by the Kleiner and Keefe cases, supra.) That plaintiff was injured "about the head, limbs and body" does not permitproofof falling of womb. Bris- coe V. City of Mt. Vernon, 174 App. Div. 200, 160 N. Y. Supp. 924. Allegation of injuries to leg re- sulting in lameness, does not permit proof of shortening of leg. Fulford V. Lynch, 168 App. Div. 70, 153 N. Y. Supp. 753. Allegation of "deep and severe injury to his head and fracturing of the skull"; bill of particulars stated that an operation had been compelled which required removal of portion of brain. Proof of resulting epilepsy, paralysis and mental impairment in- competent. Long V. Fulton Contr. Co., 133 App. Div. 842, 117 N. Y. Supp. 1118. A specification of particular in- juries, to which was added an allega- tion of injury "to other parts of the plaintiff's body," permits proof of derangement of the uterus and dizzi- ness. Walsh V. Kichmond L. &o. Co., Actions for Negligence 1059 124 App. Div. 533, 108 N. Y. Supp. 950. Allegation of plaintiff's falling "thereby hurting, bruising, wound- ing and injuring plaintiff in his back, head and side, causing him to be made sick, sore and lame, and to be permanently disabled," does not permit proof of an operation for ap- pendicitis. Johnson v. City of Troy, 124 App. Div. 29, 108 N. Y. Supp. 917. That specific injuries alleged "are and will be the cause of plaintiff becoming afflicted with diseases . . . and his physical and mental abili- ties have been impaired," will permit proof of impairment of eyesight, and varicose veins. Rudomin v. Inter. St. R. Co., Ill App. Div. 548, 98 N. Y. Supp. 506. That plaintiff received a lacer- ated wound in the thigh, and that her nervous system received a severe shock and that she is seriously and permanently injured, does not render competent proof that plaintiff has gastritis. Brown v. Manh. R. Co., 105 App. Div. 395, 94 N. Y. Supp. 190. That plaintiff's nervous system received a severe shock, does not permit proof of locomotor ataxia. Wilkins v. Nassau Newsp. Del. Co., 98 App. Div. 130, 90 N. Y. Supp. 678. That plaintiff "was seriously bruised and injured," does not per- mit proof of impairment of sight and hearing. Graham v. Bauland Co., 97 App. Div. 141, 89 N. Y. Supp. 1035. Allegation of injuries to hip and back, and that plaintiff became sick, sore and disabled, does not permit proof of kidney disease. Lockwood V. Troy City R. Co., 92 App. Div. 112, 87 N. Y. Supp. 311. Injury to sight of one eye as the result of an injury to the other eye, is incompetent without specific al- legation of such result. Dittman V. Edison El. L. &c. Co., 87 App. Div. 68, 83 N. Y. Supp. 1078. An allegation of "serious and permanent injuries to plaintiff's head and body, and nervous and physical shock, and that plaintiff has suffered and will continue to suffer grievous pain in the head and body, loss of sleep and loss of memory, and has been permanently weakened in the head," does not permit proof of deaf- ness. Piitz V. Yonkers R. Co., 83 App. Div. 29, 82 N. Y. Supp. 220. Allegation that the accident caused specified bodily injuries to plaintiff "and otherwise dangerously and permanently injuring him," does not permit injury to nerves to be shown. Kappus v. Met. St. R. Co., 82 App. Div. 13, 81 N. Y. Supp. 442. Specification of various injuries "to plaintiff's person," and further allegation of "severe nervous shock'' does not permit proof of dementia. Sealey v. Met. St. Ry. Co., 78 App. Div. 530, 79 N. Y. Supp. 677. Allegation of severe injury "in and about the head and body, by reason of which she was made sick, sore and lame and by reason of the permanent character of the injuries may never recover therefrom," does not permit proof of inability to bear children. Ramson v. Met. St. Ry. Co., 78 App. Div. 101, 79 N. Y. Supp. 588, aff'd 177 N. Y. 578. Allegation of having received a hernia and a femoral hernia aneur- ism, and possibly a sUght concus- sion of the spine, and sprain and in- juries to the muscles and ligaments of plaintiff's back, does not permit proof of injury to plaintiff's sexual organs. Page v. Pres. of D. & H, C. 1060 Abbott*s Forms of Pleading 974. Specific Allegations of Bodily Injury/^* That as a result of being so struck by said car, plaintiff was seriously wounded, bruised and injured, and suffered severe wounds and cuts in his head and face, resulting in his having severe scars thereon, and permanently disfiguring his face and head; he also suffered a fracture of the skull and his left ear was torn from his head, and he was injured as to his head, and has been permanently injured as to his ear, and his sense of hearing has been destroyed ; he also suffered a fracture of his collar bone, breast bone and ribs, resulting in said fractured bones puncturing his lung, and as plaintiff is advised and verily believes, he has been permanently injured internally as to his lungs; he also suffered a fracture of his arm, and has been permanently injured as to the use of his arm; he also suffered injuries to his legs, resulting in a permanent injury to one of his feet and his ankle, and was severely wounded, bruised and injured in and about his body, with the result that he has ever since been incapacitated, and caused to suffer great pain of body and mind. Co., 76 App. Div. 160, 78 N. Y. Supp. v. Third Ave. R. Co., 52 App. Div. 454. 483, 65 N. Y. Supp. 97. Allegations of fracturing the bones Allegation of severe wounds and of her face and body, wounding bruises to plaintiff's head and other _ plaintiff about her head, body, arms parts of his body, that his spine and and limbs, that her health has been brain had been injured, and that greatly and permanently impaired, thereby he had sustained other and her body greatly and perma^ severe internal injuries, does not nently injured, do not permit proof permit proof of impairment of eye- of displacement of womb, impairment sight. Geoghegan v. Third Ave. R. of eyesight, and inability to sleep. Co., 61 App. Div. 369, 64 N. Y. Supp. Lewin v. Lehigh Valley R. Co., 66 630. App. Div. 409, 72 N. Y. Supp. «8Xhe general form of allegation 881. given in Form 973 is good against de- Allegation that plaintiff received murrer, and sufficient at the trial 'to a wound on the forehead, also a admit proof of all general damage, fracture of the skuU, concussion of The defendant, however, is entitled to the brain, and a fracture of the nasal a more specific statement if he seek it bone, all of which gave him severe by motion before trial, and it may, bodily pain and shock to his physical therefore, be advisable to use a more and mental system, does not permit specific statement of the character proof of hystero-epilepsy. Ackman given in this form. See notes to preceding form, Actions for Negligence 1061 975. Secondary Results of Injuries."' [Allege specially, as:] That plaintiff's hearing has become impaired by reason of such injuries, and such impairment will probably continue and progress until he has totally lost his hearing. 976. Permanency of Injury.*^" That as plaintiff is informed and believes his injuries as aforesaid will be permanent and he will be permanently dis- abled and caused to suffer continuous pain and inconven- ience [and humiliation]. **' Where a distinct disease, or an impaired condition, develops from the injury, which may but does not always result from like injuries, it is incumbent on the plaintiff to spe- cially allege it; it is in the nature of special damage, of which defendant must be apprised. See note to Form 973. It will be probably desirable to specially plead any secondary result or disease, as it will then remove from the chance of medical contro- versy whether such result "necessa- rily, usually and immediately" flowed from the injury. A woman may ask compensation for her increased suffering where by reason of her injury she suffered a miscarriage, or her child was still- born. Witrak v. Nassau El. R. Co., 52 App. Div. 234, 65 N. Y. Supp. 257. A child born deformed as the result of an injury to its mother has no right of action. Nugent v. Brook- lyn Heights R. Co., 154 App. Div. 667, 139 N. Y. Supp. 367. "" The defendant should be fairly apprised of any claim on plaintiff's part that his injuries are permanent. This may be the inevitable result, or may be a result to be naturally inferred, from specific injuries al- leged by him to have been received. Ayres v. D., L. & W. R. Co., 158 N. Y. 254. If the allegation of disability is in the present tense, accompanied by allegations that great pain, and ex- pense, and incapacity for labor, will be future consequences, evidence of the permanency of the injury is admissible. Keohne v. Queens Co. &c. R. Co., 32 App. Div. 419, 52 N. Y. Supp. 1088, aff'd 165 N. Y. 603. But if the allegation of injury is in the past tense, and confined to the past effect of the injury, proof of the permanency of the injury is incompetent. Clark v. Met. St. Ry. Co., 68 App. Div. 491, 74 N. Y. Supp. 267; Crow v. Met. St. Ry. Co., 70 App. Div. 202, 75 N. Y. Supp. 377, aff'd 174 N. Y. 539. The matter should be removed from doubt by a specific allegation of the permanency of the results, or of some of the results, of the in- juries received. In Greene v. John- son, 126 App. Div. 33, 110 N. Y. Supp. ■ 104, the court virtually held that such permanency must be specially pleaded in order to be proven, in a case where no particular injuries were specified. Particulars of the injuries claimed 1062 Abbott's Forms of Pleading 977. Medical and Surgical Expense.^" That plaintiff has necessarily paid, and has become liable to pay, expenses for medical [and surgical] attendance, and for nursing, and for medicines, amounting to dol- lars; and plaintiff will hereafter necessarily incur further expenses of a similar character. 978. Loss of Earnings or Income. *^^ That [for a period of from the happening of said *'^ The fact that plaintiff has been unable to continue his work must be alleged, but no definite amount of loss need be alleged. Abb. Br. on PI., 2d ed., p. 1407; €arples v. N. Y. &c. R. Co., 16 App. Div. 158, 44 N. Y. Supp. 670. No recovery can be allowed except upon proof of the character of the occupation, and the extent of the pecuniary loss. See Page v. D., L. & W. R. Co., 34 App. Div. 618, 54 N. Y. Supp. 442, and cases cited. Unless specifically alleged, par- ticulars of the nature of the occupa- . tion, the amount of earnings lost, and the length of time plaintiff was prevented from working will be ordered; but not the name of the . plaintiff's employer. Greene v. John- son, 126 App. Div. 33, 110 N. Y. Supp. 104. Damages may not be allowed for plaintiff's disability to follow any particular pursuit aside from his usual vocation, unless such facts are specially pleaded and unless it was a pursuit in which he earned money. Freeland v. Brooklyn Heights R. Co., 54 App. Div. 90, 66 N. Y. Supp. 321. For cases involving the question whether the damage claimed is loss of profits from investment, rather than loss of earnings, see, Gombert V. N. Y. Central R. Co., 195 N. Y. to be permanent will be ordered unless specified. Biehayn v. N. Y. City Ry. Co., 123 App. Div. 652, 108 N. Y. Supp. 66. ^51 This is special damage, and must be specially pleaded.- Abb. Br. on PI., 2d ed., p. 1411. The allegation may be in very general terms, viz., "that plaintiff was put and will be put to large expense in the treatment of his said injuries," leaving it to defendant to secure a more specific statement if desired. McCready v. Staten Island R. Co., 51 App. Div. 338, 64 N. Y. Supp. 996. Particulars of the outlays will be ordered, on defendant's application, but not the names and addresses of the physi- cians, druggists or nurses, or the num- ber of physician's visits. Greene v. Johnson, 126 App. Div. 33, 110 N. Y. Supp. 104; Steinau v. Met. St. Ry. Co., 63 App. Div. 126, 71 N. Y. Supp. 256. No recovery may be allowed for past expenses without proof of their character, necessity and extent, and their value; no recovery may be allowed for future expenses except upon proof that with reasonable certainty medical services will be needed, their probable duration, their character, their frequency, and their value. Page v. D., L. & W. R. Co., 34 App. Div. 618, 54 N. Y. Supp. 442. Actions for Negligence 1063 injury to plaintiff, or] ever since said injury plaintiff has been, and will be permanently [or, for at least — stating some period], prevented from attending to his usual vocation [of — state what — , at which he was earning an income of dollars per year],^^' and plaintiff's earning capacity has been permanently impaired.*** 979. Expenses Incurred in Employing Substitute.*** That by reason of said injuries and his disability caused thereby, plaintiff was compelled to and did employ one M. N. for the period of weeks from said day of , 19 J to perform plaintiff's duties as [state what], and paid said M. N. the sum of dollars per week therefor. 980. By Married Woman for Loss of Separate Earnings.**^ [After alleging her personal injuries:] 273; Weir v. Union Ry. Co., 188 id. 416; Kronold v. N. Y., 186 id. 40; Fraser v. City of Buffalo, 123 App. Div. 159, 108 N. Y. Supp. .127; Thomas v. Union Ry. Co., 18 App. Div. 185, 45 N. Y. Supp. 920. «' If plaintiff's vocation is one bringing large earnings from the em- ployment of a high degree of skill or learning, defendant should be apprised of its character, and the income derived therefrom. Abb. Br. on PL, 2d ed., p. 1407; Joslyn V. Grand Rapids Ice Co., 50 Mich. 516. *^* Impairment of earning ability may be shown under an allegation that plaintiff will be prevented from attending to his usual vocation. Keiffert v. Nassau El. R. Co., 51 App. Div. 301, 64 N. Y. Supp. 922. No recovery is proper except upon proof of his prior and subsequent earning capacity. Staal v. Grand St. R. Co., 107 N. Y. 626. The jury is not nec- essarily bound by his earning ca- pacity at time of injury, but may properly consider whether it would have increased or diminished. Beecher v. Long Island R. Co., 53 App. Div. 324, 65 N. Y. Supp. 642. "' This expenditure constitutes special damage, and it is error to allow a recovery therefor unless specially alleged. Gumb v. Twenty- third St. R. Co., 114 N. Y. 411. The trial court should not allow an amendment of the complaint so as to permit a recovery. Edge v. Third Ave. R. Co., 57 App. Div. 29, 67 N. Y. Supp. 1002. If plaintiff is allowed a recovery for his own loss of time and loss of capacity to labor, he cannot, in addition thereto, recover for what he had to pay another to supply that loss of labor, for that would be double compensation. Blackman v. Gardiner Bridge Co. (Me.), 17 Rep. 49. ISO This loss of earnings by a mar- 1064 Abbott's Forms of Pleading .That at the times hereinbefore mentioned, plaintiff was, and ever since the day of , 19 , has been, the wife of one M. N. of ; that during a period of months prior to the time of the injury aforesaid plaintiff has been engaged in [here state nature of trade, busi- ness, labor or services, according to the fact, and, if personal services, specify employer other than her husband] upon her own sole and separate account; that by reason of said injury plaintiff has been, and will for a long time to come, be pre- vented from carrying on her said business, has become and still remains sick, sore and disabled [etc., alleging special dam- age as in Forms 975, etc.]. 981. Allegation of Damage to Property. ^^'' That by reason of the defendant's negligence, as aforesaid, plaintiff's [horse], which was of the reasonable value of ried woman is special damage, and must be specially averred in order to be recovered. Uransky v. Dry Dock, etc., R. R. Co., 118 N. Y., 304, 23 N. E. Rep. 451; Hart v. Met. St. Ry. Co., 121 App. Div. 732, 106 N. Y. Supp. 494; Mellwitz v. Manhattan Ry. Co., 17 N. Y. Supp. 112, 43 N. Y. State Rep. 354. A married woman, residing with her husband and performing the usual duties of housewife, recovers in her action for a personal injury for her pain and suffering, and physical and mental impairment both pres- ent and reasonably certain to con- tinue; but she is not entitled to re- cover anything for loss of services, or for expenses of medical or surgical treatment or other expenses of her injury. Becker v. Albany R. Co., 35 App. Div. 46, 64 N. Y. Supp. 395. See, also, note to Form 976. *" In New York an injury to per- son and an injury to property, brought about by the same act of negligence, constitute two causes of action. Reilly v. Sieihan Asphalt Co., 170 N. Y. 40. While these two causes of action may be joined in the same complaint (Mclnerney V. Main, 82 App. Div. 543, 81 N. Y. Supp. 539), if it is alleged or appears that they arose out of the same trans- action (Code Civ. Pro., § 484, subd. 9), they must be separately stated and numbered (id., § 483). Since a violation of § 483 is not a ground for demurrer, but only for a motion to compel the separate statement (Bass V. Comstook, 38 N. Y. 21), there is no prejudice likely to result from putting the claim for the two species of dam- age in the one count, and ignoring, the statutory requirement. See Mclnerney v. Main, supra. The de- fendant's attorney waives the ob- jection unless taken by motion, and no disadvantage ordinarily results to defendant from the commingling. See, also, note 3 to Form 209. Actions for Negligence 1065 dollars/*^ was destroyed, and plaintiff's [wagon] was dam- aged so that plaintiff was required to expend the sum of dollars in having the same repaired; [where the prop- ertyjias a usable value:] '''^ that plaintiff also lost the use of said [wagon] for the period of days, while the same was being repaired [or, before plaintiff could purchase an- other], and that said use was reasonably worth the sum of dollars per day [or, that plaintiff was compelled tp . and did hire another wagon for the purpose of continuing his said occupation, and necessarily expended in such hire the sum of dollars which was the reasonable value thereof], in -all to plaintiff's damage in the sum of dollars. «" 982. Another Form; Injury to Plaintiff's Business.^" [After allegation of destruction of, or damage to, any par- ticular property, as in Form 981, if interference with plaintiff's business has also resulted, may add:] That by reason of the premises plaintiff was unable for a period of weeks to carry on his said business, and was put to great labor and expense in repairing his store and putting his stock of goods in order, to his further damage in the sum of dollars. *^ Unless the value of the property repairs, of storage before repairs, destroyed is alleged it is error against and expenses of removing it from the proper objection to permit proof place of the irijury. Moore v. Met. of its value and a recovei:y therefor. St. Ry. Co., 84 App. Div. 613, 82 Freelaud v. Brooklyn Heights R. N. Y. Supp. 778. Co., 54 App. Div. 90, 66 N. Y. Supp. ■**" See next form for allegation of 321. injury to plaintiff's business. ■"' The usable value of an animal *" From Miller v. Benoit, 29 App. may be alleged, and a recovery there- Div. 252, 51 N. Y. Supp. 368, aff'd for obtained. Buchanan's Sons v. 164 N. Y. 590, where it was held Cranford Co., 112 App. Div. 278, that plaintiff might show his actual 98 N. Y. Supp. 378. The usable daily expenses of carrying on his value of property, during the period store, and recover the amount thereof required for repairs, if alleged may during the interruption of his busi- be recovered-, as well as the cost of ness. 1066 Abbott's Forms of Pleading 983. For Injury to Wife or Minor Child. *«' [Injury to wife:] I. That prior to and at the times hereinafter mentioned, M. N. was, and still continues to be, plaintiff's wife, and as such wife then and ever since has lived and cohabited with plaintiff, her husband, at , in the State of That plaintiff then was, and ever since has been, a house- holder in said [city], and was, and ever since has been, fully- supporting and providing for his said wife; and that prior to the time hereina^er mentioned, she was in good health and fully capable of performing [or, was in sufficient health to perform] and actually did perform all the usual duties of housewife in their dwelling,**' for plaintiff, her said husband, *^ This is an action "for personal injuries," as defined in the New York Code of Civil Procedure, and abates on the death of the wrong- doer. GorUtzer v. Wolffberg, 208 N. Y. 475. The husband, or parent, may recover only special damages for the injury, all of which must be alleged. Fulford v. Lynch, 168 App. Div. 70, 153 N. Y. Supp. 753. In either case the recovery is pecuniary compensation for loss of services (and in the case of injury to the wife, consortium), and also for medical and other expenses incurred, includ- ing the reasonable value of services rendered by plaintiff in caring for his wife or child (Butler v. Manh. R. Co., 143 N. Y. 417; Gorman v. N. Y., etc., R. Co., 128 App. Div. 414, 113 N. Y. Supp. 219; Barnes v. Keene, 132 N. Y. 13) and for the services of his wife in caring for his child (Gorham v. N. Y., etc., R. Co., supra; contra, Goodhart v. R. R. Co., 177 Penn. St. 1), but not for loss of time from his business (Barnes V. Keene, supra; Ceigler v. Hopper- Morgan Co., 90 App. Div. 379, 85 N. Y. Supp. 656). The general character of the evidence in this ac- tion is discussed in Zingrebe v. Union R. Co., 56 App. Div. 555, 67 N. Y. Supp. 554. The term "ser- vices'' in actions of this character includes, for an injury to the wife, any pecuniary injury suffered by the husband from having been de- prived of the aid, comfort and so- ciety of his wife, or which may be expected reasonably to result in the future. Butler v. Manh. R. Co., 143 N. Y. 417. The Massachusetts courts deny to the husband the right of recovery for loss of consortium. Bolger V. Boston El. R. Co., 204 Mass. 490, 91 N. E. 89. «» Where plaintiff alleges that such duties consisted of "housewife in their dwelling," held error to per- mit proof that the wife performed services in connection with the hus- band's work as a janitor. Keman V. Met. St. Ry. Co., 118 App. Div. 56, 103 N. Y. Supp. 61. " Should the wife render services to or for the husband, of peculiar and special value, pecuniary damage for their loss may be recovered by the husband (Blaechinska v. Howard Actions for Negligence 1067 [without requiring domestic or other servants or assistants to aid her in performing her said liousework], and in the care and management of plaintiff's children — or otherwise according to the fact. [Injury to plaintiff's minor child:] That M. N., hereinafter mentioned, is plaintiff's [son], of the age of years. ^^^ [The defendant's negligence, and resulting injury to wife or child, are to be charged as in other forms given in this chapter.] II. That in consequence of defendant's said negligence, plaintiff's said wife [son] was severely and permanently in- jured, and was confined to [her] bed and to plaintiff's house for many weeks, and plaintiff was obhged to and did neces- sarily employ medical aid and attendance for his said wife [son] and did necessarily pay and become liable therefor, and for nursing and medicine, in the total sum of dollars; [that in consequence of said injuries, plaintiff's said wife has been unable to perform the duties aforesaid, which she theretofore had performed for plaintiff, — and if according to fact — and plaintiff was then and ever since has been obliged to employ, and did employ and still does necessarily employ, a servant to aid and assist, and to perform the duties so as aforesaid theretofore performed for plaintiff by his said wife; and that for said employment plaintiff has necessarily ex- pended the sum of dollars]; that in consequence of said injuries, plaintiff also has been deprived of the services of his said wife [son — and in case of injury to wife — and his comfort and happiness in her society and companionship Mission, 130 N. Y. 497) but the fact fered a miscarriage. Butler v. Manh. of such special services must be , R. Co., supra. specially alleged. Abb. Br. on PI., *«* If by means of the same negli- 2d ed., 1410. gent act, bodily injuries are inflicted Under an allegation that he was upon another, his wife and minor deprived of her services the husband child, the entire loss and damage to may not be' permitted to show in- the plaintiff, in his capacities as in- ability to have intercourse with his dividual, husband and father, can wife. Fulford v. Lynch, supra. The be recovered in one action, as they husband cannot recover for loss of constitute but a single'cause of action, the offspring because the wife suf- So held in Cincinnati, etc., R. R. Co. V. Chester, 57 Ind. 297. 1068 Abbott's Forms of Pleading have been impaired], and plaintiff is informed and believes that such deprivation [and impairment] will necessarily continue for a long time to come; all to plaintiff's damage dollars. *«^ Wherefore [etc., demand of judgment]. 984. Special Damages Incurred in Endeavoring to Reduce Damages Anticipated from Defendant's Act/^" IV. That in consequence of the aforesaid negUgence of the defendant [his agents and servants], there was then and there inuninent danger [here state facts which required plaintiff's intervention],^^'' and plaintiff, seeing said danger, and in pur- suance of his duty to make all reasonable efforts to prevent and diminish the damages resulting from defendant's said negUgence, did then and there, necessarily and without fault on his part [here state acts done and injury sustained]. "' This being an action "for dam- It may be safer, in view of this un- ages for personal injuries," notice of certainty, to allege them if recovery intention to sue must be given to a therefor is sought. See, on this municipality. See Form 836; Kel- subject. McKenna w. Brassier (Iowa),. V. Mayor, 15 App. Div. 326, 46 Alb. L. J. 384; Pike v. Grand 44 N. Y. Supp. 39. Trunk R. R. Co., 39 Fed. Rep. 255; *' It seems to be questioned Hinchy v. Manhattan Ry. Co., 49 whether plaintiff can recover for N. Y. Super. Ct. 406. damages sustained by him in en- •»' In Hinchy v. Manhattan Ry. deavoring to avert the results of the Co., 49 N. Y. Super. Ct. 406, it was disaster; and, if so, whether these held that an allegation that his hand are general damages, which he can was burned in his efforts to extinguish prove without pleading, or whether said fire, was not enough without al- they are in the nature of special legation of facts showing danger damages, which should be alleged. justifying his interposition. CHAPTER XXXIII COMPLAINTS IN ACTIONS FOR NEGLIGENTLY CAUSING DEATH [While this chapter might perhaps be more properly included among com- plaints in "Statutory Actions," it is deemed advisable to place the forms for negligently causing death immediately after the chapter on Negligence, owing to the substantial identity of the facts giving rise to the action. Tlus action to recover for negUgently causing the death of another is a statutory action, which had no counterpart at common law. In New York, the right of action is given by Code Civ. Pro., § 1902. The damages awarded for the negligent act are such as result to the property rights of the person or persons for whose benefit the action is given. The statute is not simply remedial; it creates a new cause of action in favor of the personal representatives of the deceased, which is wholly distinct from, and not a re- vivor of, the cause of action which, if he had survived, the injured person would have had to recover damages for his bodily injury. ' If the injury was received outside of fhe State of New York, it is necessary that a statute be shown to exist in the foreign jurisdiction which gives the right of action.^ Inasmuch as the New York courts will not take judicial notice of foreign statutes, the existence of such statute must be pleaded as a fact constituting a part of the right of action.] PAGE 985. General form; injury received in New York State 1069 986. The same, another form, under Federal Employers' Liability Act . 1072 987. Where the cause of action arose in another State, or in a foreign country '. . . . 1073, 985. General Form; Injiuy Received In New York State.' [Under N. Y. Code Civ. Pro., § 1902.] I. [Allege the facts showing that the deceased met his death as a result of the negligent act or omission of the defendant; the appropriate form under "Negligence" may be used, with but slight change.] II. [Show plaintiff's capacity as personal representative to ' Matter of Meekin v. Brooklyn ' Contributory negligence of the Heights R. Co., 164 N. Y. 145; Boffe deceased must be pleaded and proved v. Cons. Tel., etc., C0.717I App. Div. by defendant. Code Civ. Pro., 392, 157 N. Y. Supp. 318. § 841b (added- by L. 1913, c. 228). 2 Gurofsky v. Lehigh Valley R. The burden of proof is placed upon Co., 121 App. Div. 126, 105 N. the defendant by the amendment. Y. Supp. 514, aff'd .197 N. Y. Rinando v. Weeks & Son, 172 App. 517. Div. 319, 158 N. Y. Supp. 365. 1069 1070 Abbott's Forms of Pleading enforce the statutory right of action: * if administrator, allege as in Form 61; if executor, allege as in Form 64; if appointed as successor of a deceased representative, allege as in Forms 68 or 69; if appointed under the laws of another State or country, allege appointment as in Form 73.] ^ III. [It is necessary to allege the existence of widow, husband, or others who are made beneficiaries under the statute,^ as:] That, said M. N. [deceased] left him surviving, his widow, A. N., of the age of years, [and children, viz., J. N., a son, of the age of years, etc. — or, left him surviving no widow, or children, or parents, but a brother, J. N., and a sister, B. N. — his next of kin]f that said * No action accrues until the per- sonal representative has been ap- pointed, and an appointment after action commenced is wholly ineffec- tive. Crapo V. City of SsTacuse, 183 N. Y. 396; Boffe v. Consol. Tel., etc., Co., 171 App. Div. 392, 157 N. Y. Supp. 318. The death of the personal representative does not abate the action, but it may be con- tinued by his successor; if the de- ceased personal representative was also the sole next of kin, the damages when collected belong to his estate. Matter of Meekin v. Brooklyn Heights R. Co., 164 N. Y. 145; Conway v. City of N. Y., 139 App. Div. 446, 124 N. Y. Supp. 660. If no action has been commenced, but the time has not expired, such suc- cessor representative may commence the action within one year after the death of the prior representative. Conway v. City of N. ' Y., supra. ' An executor or administrator duly appointed in any other State, or in any foreign country, may bring this action. Code Civ. Pro., § 1902, as amended in 1915. No action lies by a parent for negligently causing the death of a child; the parent's action is limited to the loss of services and expenses during the interim, if any, between the injury and the death. Ohnmacht • V. Mt. Morris El. L. Co., 66 App. Div. 482, 73 N. Y. Supp. 296. ' The action is only given when a decedent has left surviving a hus- band, or wife, or next of kin; if no children survive, the damages re- covered are for the sole benefit of the surviving wife or husband. Code Civ. Pro., § 1902. Where the limita- tions o( the New York Workmen's Compensation Act do not provide death benefits for the surviving next of kin, because of too remote degree, no action will lie on their behalf against an employer who has com- plied with the requirements of the Act. Shanahan v. Monarch Eng. Co., 219 N. Y. 469. Should the next of kin be fraudu- lently induced to make a settlement, an action lies by them personally to have the release set dside. Rice v. Postal Tel. Co., 219 N. Y. 629, aff'g 174 App. Div. 39, 160 N. Y. Supp. 172. ' The action may be maintained in New York although the widow, and next of kin are all aliens. Alfson V. Brush Co., 182 N. Y. 393. A Actions for Negligently Causing Deaths 1071 M. N. was of the age of years at the time of his death, and prior thereto had been in good health, and in possession of all of his faculties, and was steadily employed at his work as [state] ; that said [widow and] next of kin [were dependent upon said M. N. for their maintenance and sup- port — and education — and that they] have been damaged by his death in the sum of dollars f that the funeral expenses of the deceased amounted to dollars, and the expenses of the administration of his estate and plaintiff's commissions as [executor] will amount to the sum of dollars.' [IV. That this action was commenced within one year after the cause of action accrued, and within two years after the death of said M. N.] i" V. [Notice to municipality, if a defendant, as in Forms 58 and 836.] " similar ruling is made under the statutes of Massachusetts (Mulhall V. Fallon, 176 Mass. 266); Illinois (K. C. Co. V. Petrayteo, 195 lU. 215); Alabama (Luke v. Calhoun Co., 52 Ala. 115); Arizona (Bouthron v.- Phcenix Co., 71 Pac. 941); the right of action under such circum- stances is denied in Indiana (C, C. & St. L. R. Co. V. Osgood, 70 N. E. Rep. 839); Penn. (Deni v. Penn. R. Co., 181 Penn. St. 525); Wisconsin (McMillan u. S., L., etc., Co., 91 N. W. Rep. 979). If the action arose in another State, see notes to Form 987. ' As against demurrer the facts con- stituting the damages need not be alleged. Pizzi v. Reid, 72 App. Div. 162, 76 N. Y. Supp. 306. 9 An allegation of the amount of funeral expenses, as well as medical and surgical expenses caused by the injury, should not be stricken out on motion. Fox v. Chapman, 117 App. Div. 127, 102 N. Y. Supp. 378. See generally, as to the elements. of damage to the next of kin: Coun- tryman V. Fonda, etc., R. Co., 166 N. Y. 201; Lipp v. Otis Bros. & Co., 161 N. Y. 559; Keenan v. Brooklyn City R. Co., 145 N. Y. 348; Ericius V. Brooklyn Heights R, Co., 63 App. Div. 353, 71 N. Y. Supp. 596; Fa- jardo V. N. Y. Central R. Co., 84 App. Div. 354, 82 N. Y. Supp. 912 Austin V. Met. St. Ry. Co., 108 App. Div. 249, 95 N. Y. Supp. 740. '^ These allegations are not essen- tial in the complaint. Sharrow v. Inland Lines, 214 N. Y. 101. The one-year limitation applies to New York City under L. 1886, c. 572. Conway v. City of New York, supra. '' Notice of intention to sue must be served, as well as demand for adjustment, in like manner as when the injured person sues. Conway v. City of N. Y., 139 App. Div. 446, 124 N. Y. Supp. 660. See Forms 58, 836, and notes. A statute requiring notice in "actions for personal in- juries from negligence" embraces this action.* Titman v. Mayor, 57 1072 Abbott's Forms of Px,eading VI. [Allege notice to defendant if action is founded on New York Employers' Liability Act; see Form 899.] ^^ VII. [Allege failure of defendant to procure insurance, if action is brought under circumstances falling within the pro- visions of the New York Workman's Compensation Act; see Farm 89S.] Wherefore, plaintiff demands judgment against the de- fendant for the sum of dollars, with interest thereon from [the day of the decedent's death]. 986. The Same, Under Federal Employers' LiabUity Act." I. [Allege a cause of action against defendant railroad com- pany, which would have resulted in a right of action on behalf of the injured employee had such injury not caused his death; see Forms 792, 793.] II. [Allege plaintiff's appointment as personal representa- tive of the deceased; if as administrator, see Form 61; if as executor, see Form 64; if as successor representative, see Form 73.] III. [Allege existence of persons for the benefit of whom the statute gives the right of action, as:] That the deceased left him surviving, a widow, A. N., of the age of years, and children, of the ages of [or, no widow, or issue, but a father and — or — mother — or, no widow, or issue, or parents, but a brother, J. N., and a sister, B. N.] who are his only next of kin, and who were dependent upon Hun, 469, 10 N. Y. Supp. 689, aff'd holding in 95 App. Div. 336, 88 N. Y. 125 N. Y. 729. Supp. 681. " To be given within 120 days '^ 35 u. S. Stat, at L. 65, c. 149, after the injury was received, or in as amended by 36 id. 291, c. 143. case of the resulting death of the If the deceased was engaged in employee within that period, then interstate commerce at the time of the personal representative may his death, the federal act furnishes give the notice within 60 days after the only ground for recovery. Peder- his appointment. Hoehn v. Lautz, sen v. D. L., & W. R. Co., 229 U. S. 94 App. Div. 14, 87 N. Y. Supp. 921; 146; Seaboard Air Line v. Horton, Randall v. Holbrook, etc., Contr. 233 id. 492; see, also, notes to Co., 195 N. Y. 514, disapproving Form 792. Actions for Negligently Causing Deaths 1073 said M, N.," and who have been damaged by his death in the sum of dollars." Wherefore [etc., demand of judgment]. 987. Where the Cause of Action Arose in Another State or in a Foreign Country.'" I. [Allege the existence of the foreign statute giving the right of action,^'' as:] That at the times hereinafter mentioned it was and now is provided by the statutes of the [State] of "Actual dependency upon the deceased on the part of the next of kin other than children must be shown under the federal statute. Collins V. Penn. R. Co., 163 App. Div. 452, 148 N. Y. Supp. 777; Bitondo v. N. Y. Central, etc., R. Co., 163 App. Div. 823, 149 N. Y. Supp. 339. The recovery should be appor- tioned by the jury to each beneficiary. Gulf, etc., R. Co. V. McGinnis, 228 U. S. 173; Collins v. Penn. R. Co., sujn-a. I'See, generally, the notes to Form 985. '« Under N. Y. Code Civ. Pro., § 1780, an action will not lie in the courts of this State by a non-resident against a foreign corporation on a cause of action arising outside of the State, unless the corporation is doing business within the State. Payne v. N. Y., etc., R. Co., 157 App. Div. 302, 142 N. Y. Supp. 241. Where the deceased was a non-resident, and was killed in the foreign country, his administrator though appointed by the courts of this State being also a non-resident,, our courts have no jurisdiction. See Robinson v. Oceanic S. S. Co., 112 N. Y. 315; English v. N. Y., etc., R. Co., 161 App. Div. 831, 146 N. Y. Supp. 963. But where the deceased was a resident. and two of the three executors are also residents, it is held that the ac- tion will lie. Mallory v. Virginia Hot Springs Co., 157 App. Div. 253, 141 N. Y. Supp. 961. " The cause of action is governed by the foreign statute. Lichtenstein V. Augusta, etc., Corp., post, note 20. It is essential that the foreign statute not only give the right of action, but that such right of action is not only not penal, but is substantially similar to that in our owa State. See Loucks V. Standard Oil Co., 172 App. Div. 227, 159 N. Y. Supp. 282; Zeikus V. Florida, etc., R. Co., 144 App. Div. 91, 128 N. Y. Supp. 933, ano. dec, 153 App. Div. 345, 138 N. Y. Supp. 478 (on the first appeal it merely appeared that by the for- eign statute the personal representa- ' tives had the right of action, but for whose benefit was not shown, and the court declined to take jurisdic- tion; on tlie later appeal, it was shown that the recovery would be for the next of kin subject to the claims of creditors, but that there were no creditors, and the court re- tained the action and upheld the complaint); Strauss v. N. Y., N. H. & H. R. Co., 91 App. Div. 583, 87 N. Y. Supp. 37; Wooden v. W. N. Y., etc., R. Co., 126 N. Y. 10. 1074 Abbott's Forms of Pleading [naming jurisdiction where injury occupied], viz., by [indicate briefly, as] §§ 2902-2906 of the Virginia Code, as follows: [quote so much of the statute as will show the giving of the right of action, and for whose benefit given, and who is authorized to bring the action].'^^ [Or, the substance of the statutes may be given, in the manner following: That the statutes and laws of the State of Florida provide, and at the times hereinbefore referred to, did provide, that where a person is injured and died within said State by reason of the carelessness or negUgence of another, and no action for damage is brought by the person so injiu-ed during his life- time, an action for damages sustained by such injury and death might and could be brought by his widow or minor children, or, if none survived him, by any person dependent upon his support; and if neither widow, minor child, or person dependent upon his support survived him, then by the executor or administrator of his estate.] ^' II. [Allege the cause of action, using the appropriate form under Negligence.] ^^ III. [Allege the appointment of plaintiff as representative when necessary — see paragraph II of Form 985 — or if statute gives the right to bring the action to the individual next of kin, allege plaintiffs' relationship so as to bring them under the pro- '* Howlan v. N. Y. & N. J. Tel. any other fact in the case. Storrs v. Co., 131 App. Div. 443, 116 N. Y. No. Pac. Ry. Co., 148 App. Div. 403, Supp. 316. 132 N. Y. Supp. 954, aff'd 208 N. Y. 1" From Zeikus v. Florida, etc., 629; English v. N. Y., etc., R. Co., R. Co., supra.; but the allegation was 161 App. Div. 831, 146 N. Y. Supp. defective in not further showing 963. for whose benefit the recovery would ^ Where the foreign statute gives inure if action was brought by the a right of action for negUgence, the executor or administrator. word is to be construed as used in See chapter on Pleading a Foreign its ordinary legal sense, and negli- Statute, with the forms given there- gence at common law must be shown under, and the notes as to proper by the allegations of the complaint, method of pleading and sufficiency Lichtenstein v. Augusta, etc., R. thereof. The foreign statute is a Corp., 165 App. Div. 270, 150 N. -Y. fact, to be alleged and proved like Supp. 992. Actions for Negligently Causing Deaths 1075 visions of the statute; ^^ and if any are residents of this State, allege that fact] ^^ IV. [7/ not already shown by allegations in paragraph III, allege the existence of widow, husband, children, or other next of kin — alleging dependency if particular statute benefits de- pendents only — as in paragraph III of Form 985, or para- graph III of Form 986; and if any are residents of this State, so allege; ^* also allege fact, and amount, of damage as in those paragraphs.] V. That the defendant {foreign corporation] is doing busi- ness in this State.^* Wherefore [etc., demand of judgment]. ^' See, for example, Storrs v. statutes and decisions, residence of N. Y., etc., R. Co., supra. If those the beneficiaries at least to the ex- who would take the recovery are tent of negativing alienage may be properly named as the' persons en- essential. See Gurofsky v. Lehigh titled, an omission to name them Valley R. Co., 121 App. Div. 126, all as plaintiffs may be cured by 105 N. Y. Supp. 514, aff'd 197 N. Y. amendment, even after the expira- 517. tion of the time within which the ^4 jf plaintiffs are non-residents, action must have been commenced. and defendant is a foreign corpora- Benyak v. Lehigh Coal, etc., Co., tion, this fact, if existing, will au- 166 App. Div. 829, 152 N. Y. Supp. thorize the courts to entertain the 329. action. Code Civ. Pro., § 1780, as "See EngUsh v. N. Y., etc., R. amended in 1910. Of course the Co., supra. question will still remain as to the "See English w. N. Y., etc., R. substantial similarity of the foreign Co., supra. Or, under some foreign statute upon which the action rests. CHAPTER XXXIV COMPLAINTS IN ACTIONS FOR NUISANCE [See notes to the General Form, No. 988, on the essential elements of the action, as well as the different remedies allowed. A common or public nuisance may be abated by the proper public author- ities, or by a private person specially aggrieved; but witliout special statutory authority a municipality cannot sue unless the nuisance affects the public health, or causes injury to its property rights. Yonkers v. Federal Sugar Ref . Co., 136 App. Div. 701, 121 N. Y. Supp. 494, aff'd 207 N. Y. 724. Where several persons or corporations participate independently in the creation of a nuisance, they may be sued together for an injunction; whether as an incident thereto, damages may be awarded to the plaintiff, and appor- tioned among the defendants, is not clear. See Warren v. Parkhurst, 186 N. Y. 46, and cases cited. The owners and occupants of separate parcels of land, all affected by the same nuisance, may join as parties plaintiff in an action to enjoin the nuisance. Strobel v. Kerr Salt Co., 164 N. Y. 303. Some of them may sue on behalf of themselves and others similarly situated. Greer v. Smith, 155 App. Div- 420, 140 N. Y. Supp. 43. Such separate owners may not, however, unite in the action for an injunction their separate claims for money damages. Burghen V. Erie R. Co,, 123 App. Div. 204, 108 N. Y. Supp. 311.] PAGE 988. General form; against the creator of the nuisance, with demand for damages, or for abatement and damages, or for injunction and damages; slaughter-house 1078 989. The same, against a continuer 1081 990. Allegation of maintenance of powder magazine and explosion thereof 1082 991 . Against plant for manufacture and storing of explosives, to enjoin continuance 1082 992. .Allegation of nuisance from smoke, etc., and injuries therefrom. . . 1083 993. Against gas company 1084 993a. Against proprietor of factory, the machinery of which in operation causes vibration of plaintiff's building, and noise 1085 994. Allegation of operation of electric light plant 1087 995. Against manufacturing carried on upon a floor over plaintiff, caus- ing injury from substances used 1087 996. Allegation of maintenance of improper privies and drains 1089 997. Against proprietor of bowhng alley 1090 998. Against proprietor of gambling hall 1090 999. Against proprietor of house of prostitution, to enjoin continuance and for damages 1092 1000. To enjoin offenses against public decency 1093 1001. For removal of encroachment in highway; by public authorities. . 1094 1002. The same, by private person, suffering special damage 1095 1076 Actions for Nuisance 1077 PAGE 1003. Against creator of dangerous condition in public hignway, causing personal injury 1096 1004. The same, by private owner or occupant, sustaining special damage 1097 1006. For making excavation in dangerous proximity to highway, and failing to guard the same 1098 1006. For erecting and maintaining upon highway a structure calculated to frighten horses 1099 1007. Against city for removal of structure erected by it in public street . 1100 1008. Against municipality for licensing an unlawful and dangerous ifee of highway 1102 1009. For injuries received from maintenance of vault under sidewalk . . . 1102 1010. Obstruction in sidewalk maintained by abutting owner 1104 1011. Against owner of leased premises for fall of material therefrom. . . 1105 1012. Against one using sidewalk unreasonably ' 1105 1013. The same, by means of exhibition attracting crowds ,. . . . 1106 1014. For obstructing a private way 1107 1015. Injury from defective water pipes and drains 1108 lOlG. For flowing water from adjoining roof on plaintiff's premises. . . . 1109 1017. Depriving plaintiff's land of lateral support; land in its natural condition 1109 1018. The same, where foundation of plaintiff's building was injured; de- fendant given license to shore it up and protect it; against both owner and contractor 1110 1019. The same, where plaintiff's building was injured, defendant not attempting to protect it 1112 1020. Against municipality for damages caused by sewer 1113 1021. Against municipality for negligence in maintaining sewer 1114 1022. Against municipality for damages caused by maintenance of insuf- ficient sewer 1115 1023. Pollution of water course by factory wastes 1116 1024. The same, allegation of injury caused by many defendants acting independently 1117 1025. Against municipahty, for pollution of plaintiff's pond 1118 1026. Allegation of laying and maintaining private drain causing injury 1120 1027. Against erector of a dam, causing overflow of plaintiff's premises. 1120 1028. The same, against both erector and continuer, where the land has been transferred 1121 1029. Averment of special damage to plaintiff's land 1122 1030. Allegation of notice to continuer of improper embankment 1122 1031. Against lessee of railroad for continuing insuflBcient sluiceway. . . 1123 1032. For damage caused by bursting of reservoir 1124 1033. For unreasonably retaining or diverting water from natural stream 1125 1034. Allegation of right by prior appropriation 1127 1035. For diverting water which plaintiff had theretofore used for pur- poses of irrigation 1127 1036. Interfering with plaintiff's underground percolations, by artificial means 1128 1078 Abbott's Forms of Pleading 988. General Form; Against the Creator of the Nuisance, Demand for Damages, or for Abatement and Damages, or for an Injunction and Damages; Slaughter-house.^ I. That the plaintiff is, and at the times hereinafter men- tioned and for years theretofore was, [the owner and] ^ in occupation of the house and lot No. in street, in the city of , in which plaintiff and his family dwelt at the times hereinafter mentioned [and are now dwelling]. II. That the defendant was also at said times [and is now, the owner and] possessed of certain premises adjoining [or, in the immediate vicinity of] those of the plaintiff.^ III. That the defendant in the month of , 19 , erected and thereafter maintained on his said premises a nuisance,* viz., [describe its character, as:] a slaughter-house ' This form is supported by Comes V. Harris, 1 N. Y. 223, and Clark v. Storrs, 4 Barb. (N. Y.) 562. '^ It is not necessary to allege that the plaintiif is the owner, if he is in occupation, though this is proper with reference to the measure of damages. The owner may sue if he can show an injury to the rever- sion; the tenant alone may sue for a casual or temporary nuisance which is an injury only to his right of pos- session. See Bly v. Edison Electric Light Co., 172 N. Y. 1. The tenant's right is not affected by the fact that the lease was made during the ex- istence of the nuisance. Id. Priority of ownership is not essential in a nuisance, nor is priority of lease- hold. Bly V. Edison El. L. Co., 172 N. Y. 1; Hoffman v. Same, 87 App. Div. 371, 84 N. Y. Supp. 437. See another form of allegation of ownership of adjacent lands, in Form 991. ' "Owner and in possession" suf- ficiently alleges immediate right and power of control. Pennachio v. Greco, 107 App. Div. 225, 94 N. Y. Supp. 1061. The creator of a nuisance cannot after alienation of the premises be held for an injury due to its negli- gent continuance, unless it was in- , herently dangerous, or he was al- leged to be deriving some benefit from the continuance. See Slavitz V. Morris Park Estates, 98 Misc. 314, 162 N. Y. Supp. 888. * It is not essential that plaintiff should characterize the delict as a nuisance, provided facts are set forth in the pleading from which the court can see that a nuisance exists in legal contemplation. Uggla v. Brokaw, 117 App. Div. 586, 102 N. Y. Supp. 837; Laflin-Rand Powder Co. V. Tearney, 131 lU. 322, 23 N. E. Rep. 389; Campbell v. U. S. Foundry Co., 73 Hun (N. Y.), 576, 57 N. Y. State Rep. 265, 26 N. Y. Supp. 165. But an allegation that something is a nuisance without facts to support it is a mere conclusion. Fabian v. Schinasi, 176 App. Div. 259, 162 N. Y. Supp. 1073. A slaughter- Actions foe Nuisance 1079 and cattle pens, and continuously thereafter* kept and slaughtered [and does now keep and slaughter] therein large numbers of cattle and hogs, thereby causing noxious and offensive odors, and loud and offensive noises, and the tainting and corrupting of the atmosphere, so as to render the said dwelling-house and premises of the plaintiff unfit for habitation and greatly depreciated in [usable] ^ value; to his damage dollars. [If special damages have resulted, such as illness of plaintiff, allege it by way of special damage.] [If damages alone are desired] Wherefore, plaintiff de- mands judgment against the defendant* for the sum of dollars, and the costs of this action.^ [If abatement of nuisance is also desired, continue from*] that the said nuisance be removed, and that plaintiff re- cover of defendant dollars damages, besides the costs of this action.'' house is prima facie a nuisance. Catlin V. Valentine, 9 Paige (N., Y.), 575, 38 Am. Dec. 667; Bushnell v. Robeson, 62 Iowa, 540. Priority of its erection is immaterial. Id. 'A lessee is entitled to recover depreciation in the usable value. Bly ifr Edison Elec. 111. Co., Ill Ai^. Div. 170, 97 N. Y. Supp. 592, aff'd 188 N. Y. 682. That is, the value of the premises to the lessee, as distinct from the rental under the lease. Bates v. Holbrook, 89 App. Div. 648, 86 N. Y. Supp. 673. Or, at his election he may have his damages measured by the deprecia- tion in the rental value of the premises as a whole. See Hoffman v. Ed. El. lU. Co., 87 App. Div. 371, 84 N. Y. Supp. 437. ' Under such a demand a recovery must be limited to damages ac- cruing prior to action commenced, and are measured by diminution of rental value;. the court may not also direct the abatement of the nuisance. Van Veghten v. Hudson River Power Transm. Co., 103 App. Div. 130, 92 N. Y. Supp. 956; Senglaup v. Acker Process Co., 121 App. Div. 4a, 105 N. y. Supp. 470; Cooper v. RandaU, 59 111. 317. ' The action is at law, and triable by a jury, even if the judgment de- mands the removal of the nuisance by the defendant. Heughes v. Galusha Stove Co., 122 App. Div. 118, 106 N. Y. Supp. 606. Abate- ment may be refused in a proper case. Hadcock v. City of Glovers- ville, 96 App. Div. 130, 89 N. Y. Supp. 74. If abatement of the nuisance be also sought, damages to the time of trial may be recovered. Commings v. Stevenson, 76 Tex. 652, 13 S. W. Rep. 656. The de- mand for relief will generally deter- mine whether the action is laid in equity or at law. Lamming v. Galusha, 136 N. Y. 239. 1080 Abbott's Forms of Pleading [// injunction and damages are desired, add to paragraph I an allegation of continuance of plaintiff's term as tenant (if not the owner), and charge in paragraph III defendant's intent to continue operation of nuisance; in demand for judgment, continue from*] that the defendant be enjoined from using said building as a slaughter-house [or, from operating upon or using said premises in such a way as to produce offensive odors and noises, etc.] or permitting it tp be so used; and that plaintiff recover of the defendant dollars damages, and costs of this action, and for such other and further rehef as to the court may seem just.* . In Illinois, it is held that if the damages proven are permanent in character, they can and must be recovered for in a single action. Ottawa, etc., Co. v. Graham, 28 111. 73; Ohio, etc., R. R. Co. o. Wachter, 123 id. 440; Hyde Park, etc., Co. v. Porter, 64 lU. App. 162. * Where the main object of the action is to secure specific equitable relief, an award of damages may be asked as incident to the same wrong. This is not a misjoinder. Ackerman V. True, 175 N. Y. 353; Raymond'^. Trans. Dev. Co., 65 Misc. 70, 119 N. Y. Supp. 655; Grandona v. Lovdal, 70 Cal. 161; Akin v. Davis, il Kans. 580; Trowbridge v. True, 52 Conn. 190; Paddock v. Somes, 102 Mo. 226, 14 S. W. Rep. 746. If an interlocutory judgment, in- volving an injunction pendente lite, is desired, it is necessary in some jurisdictions to ask for it specifically under the principles and authorities hereafter presented under title In- junction. The power of a court of equity to assess the damages, notwithstanding an injunction is refused, is well illus- trated in the cases of Miller v. Edison El. 111. Co., 184 N. Y. 17; McNulty V. Mt. Morris El. Light Co., 172 N. Y. 410. If an injunction is granted damages based on injury to the fee cannot be awarded. Close v. Whit- beck, 126 App. Div. 544, 110 N. Y. Supp. 717. Nor may fee damage in lieu of an injunction be awarded un- less the defendant has the power of eminent domain. Ackerman v. True, 56 App. Div. 54, 66 N. Y. Supp. 6. An injunction may not be denied because the plaintiff's damage will be slight as compared with the de- fendant's expense of abating the nuisance. Whalen v. Un. Bag & Paper Co., 208 N. Y. 1. But it may be refused in the court's discre- tion when the plaintiff's right is merely technical and unsubstantial. See McCann v. Chasm Power Co., 211 N. Y. 301. Several persons, having independ- ent claims to relief, may join in a suit to restrain a nuisance which affects them. Greer v. Smith, 155 App. Div. 420, 140 N. Y. Supp. 43. Murray ;;. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Grant v. Schmidt, 22 Minn. 1; Sullivan v. PhiUips, 110 Ind. 320. Contra, Henchman ;'. Paterson Horse Ry. Co., 17 N. J. Eq. 75. And some may sue on behalf of all. .Greer v. Smith, supra. Actions for Nuisance 1081 989. The Same, Against a Continuer.^ I. [As in Form 988.] II. That ever since the day of , 19 , the defendant has maintained [a slaughter-house] on [his] '" premises contiguous to plaintiff's said premises [or, in the immediate vicinity thereof], and has [continue as in the Form 988 from the*]. III. That on or about the day of , 19 , the plaintiff notified defendant that said slaughter-house was a nuisance, and was causing damage to plaintiff, and re- quested the defendant to remove the said [slaughter-house,] or to cease using the premises for that purpose, but he has not done so." IV. [Special damage, if any.] ^^ Wherefore [etc., demund of judgment, as in Form 988].^^ It is not necessary, in order that a complaint show ground for an in- junction, that it be alleged that a nuisance per se will be continued. Barnard u. Finkeiner, 162 App. Div. 319, 147 N. Y. Supp. 514. ' It has been held that an action against the creator cannot be joined witk one against the continuer of the nuisance. Hines v. Jarrett, 26 So. Car. 480; Greene v. Nunnemacher, 36 Wise. 50. They may be joined in New York and California by statute. N. Y. Code Civ. Pro., §1661;jCal. Civ. Code, §3483. '» Defendant's title need not be set forth; indeed, he need have no title, his liability depending solely upon his maintenance of the nuisance. An allegation that the stable was maintained by the defendant "with the consent by license, lease or other- wise," of the owner, is sufficient to admit evidence at the trial of the character of the tenancy. Horton v. Brownsey, 10 N. Y. State Rep. 800. A charge that defendant "erected and maintained," sustains a recovery upon proof that he was a continuer only. Hyde Park, etc., Co. v. Porter, 64 lU. App. 152. "As against the mere continuer of a nuisance, notice of its existence must be charged, and a demand for its abatement. Orvis v. Cor£land &c. R. Co., 17 App. Div. 187, 45 N. Y. Supp. 367, aff'd 172 N. Y. 656; Uggla V. Brokaw, 117 App. Div. 586, 102 N. Y. Supp. 837; Groff v. Auken- brandt, 124 111. 51; Ahem v. Steele, 115 N. Y. 203; Conhocton Stone Road V. Buflfalo, N. Y., etc., R. Co., 51 N. Y. 573, 10 Am. Rep. 646. No particular form of notice is necessary. Wabash R. Co. v. Sanders, 58 III. App. 213. No notice need be averred where the nuisance is a public one, and its continuance a violation of law. Vaughn v. Buffalo, etc., Ry. Co., 25 N. Y. Supp. 246. 12 See Form 988. " And SCO notes on this point to that form. 1082 Abbott's Forms of Pleading 990. Allegation of Maintenance of Powder Magazine, and Explosion Thereof. [Sustained in Laflin-Rand Powder Co. v. Tearney, 131 111. 322, 23 N. E. Rep. 389.] " [After alleging ownership of contiguous premises, as in Form 988.] III. That it was the duty of defendant to use its said prem- ises so as hot to jeopardize the buildings and premises of the plaintiff, and not to store upon its said premises any danger- ous substance, whereby plaintiff's property might be de- stroyed in case of an explosion; that defendant kept upon its said premises a large quantity of gun-powder, dynamite, and other explosives, that said gunpowder, dynamite, and other explosives so kept upon said premises, on or about the day of , 19 , exploded, and that by means of said explosion the debris of the buildings and material upon said premises were then and there driven with great force and vio- lence upon and against the property of plaintiff hereinbefore described. [Allege resultant damages.] 991. Against Plarit for Manufactiire and Storing of Explo- sives, to Enjoin Continuance.^'' I. [Allege plaintiff's ownership, as:] That the plaintiff is a corporation organized for the purpose of laying 'out and developing lands, and selling lots therein, and doing and engaging in all manner of manufacturing and develop- ing business. That since on or about the day of ,19 , the plaintiff has owned and still owns about acres of valuable land lying in the counties of and , lying along the river between the city of and the town of ; that the greater part of the said land has been laid off into lots, a large por- tion thereof sold, and numerous manufactures are in full operation thereon. "See, also, Prussak v. Button, Powder Co., 40 W. Va. 711, 21 S. E. 30 App. Div. 66, 51 N. Y. Supp. 761. Rep. 1037, where the court held '!■ From complaint in Herrington the powder plant was a nuisance Land Development Co. v. Phccnix per se. Actions for Nuisance 1083 II. That the defendant is the owner of about acres of land, on which it has built an extensive plant for the manufacture of powder, dynamite and other explosive sub- stances, and is engaged -thereon in the manufacture of the same, and keeps stores of such substances in large quanti- ties continually on hand, thereby creating a dangerous and threatening nuisance, which is surrounded on three sides by plaintiff's land aforesaid, and especially that portion which has been laid off and known as the town of ; that said plant has been so maintained and operated since the day of , 19 ; that said plant is situate on the bank of the said Ohio river, within yards of two railroads in continuous operation, and within yards of a public highway known as the road. III. That by reason thereof a large portion of the afore- said land of plaintiff has become valueless- for the purpose for which it was purchased, and cannot be used in safety even for farming,, and is thereby greatly diminished in value and rendered undesirable and unsalable, to plaintiff's great and irreparable damage, for which plaintiff has no adequate remedy at law. IV. If past damages are sought: That by reason of the premises plaintiff has suffered damages in the sum of dollars. Wherefore [etc., demand for injunction and damages. See Form 988.] 992. Allegation of Nuisance from Smoke, etc., and Injuries Therefrom." [From Kirchgraber v. Lloyd, 59 Mo. App. 59.] "See a general discussion of this N. Y. Central R. Co., 161 App. species Of nuisance, and damages re- Div. 201, 146 N. Y. Supp. 288 coverable therefor, in McCarthy (smoke and soot); Campbell v. Sea- V. Natural Carbonic Gas Co., 189 man, 63 N. Y. 568, 20 Am. Rep. 567 N. Y. 40 (soft coal smoke); Syracuse (brick kiln.) Salt Co. V. Rome &c. R. Co., 43 App. See Form 993 against gas com- Div. 203, 60 N. Y. Supp. 40, aff'd pany. 168 N. Y. 650 (cinders); Gibbons v. 1084 Abbott's Forms of Pleading [After alleging plaintiff's ownership of premises situated near the limits of the city of ," and on which he re- sided, the complaint continued:] II. That the defendants at all times hereinafter men- tioned [owned and] occupied certain premises in the im- mediate vicinity of plaintiff's said premises, upon which defendants have carried on the business of [burning brick]. III. That during the years 19 to 19 , the cinders, smoke, soot, fimaes, vapors and gases arising from the burn- ing brick kilns on the said premises of the defendants have injured and destroyed and will continue to injure and de- stroy the crops of grass, grain, vegetables and fruits and orna- mental trees growing on plaintiff's said land; that plaintiff has been and is also injured in the use and enjoyment of the premises as his said place of residence, by reason of such smoke, soot, fumes, vapors and gases passing into his dwell- ing house. IV. That by reason aforesaid plaintiff has been damaged dollars, and will continue to suffer great and irrep- arable damage from the further continuance of said nui- sance. [Judgment was demanded for a perpetual injunction, and for money damages. See Form 988.] 993. Against Gas Company.^^ [After alleging defendant's corporate capacity and occupation, the complaint set forth that plaintiff and defendant owned adjoining premises; see Form 988.] " The municipality cannot, with- struction or maintenance of the work out express statutory authority so or conduct of its business. Held, to do, maintain an action to enjoin that a judgment for plaintiff should such a nuisance, unless injury to its he affirmed where it appeared that property rights is shown. City of the judge had submitted to the jury Yonkers v. Federal Sugar Ref. Co., whether the smells and odors from 136 App. Div. 701, 121 N. Y. Supp. defendant's works constituted a nui- 494. sance. '* From complaint in Bohan v. See, also, Gibbons v. N. Y. Central Port Jervis Gas Co., 122 N. Y. 18, R. Co., 161 App. Div. 201, 146 N. Y. 25 N. E. Rep. 246. Plaintiff gave Supp. 288 (Pintsch gas), no proof of negligence, either in con- Actions for Nuisance 1085 III. That in or about the year 19 , the defendant erected a tank on its said premises for the purpose of its gasworks, the side of which said tank stands within .a few feet of plain- tiff's said premises. That about the year 19 , the de- fendant began, and ever since has, and still does, make its gas therein, and in other buildings of said gasworks, from naphtha, and that said tank was, and is still, used to store said naphtha for purposes aforesaid. That the said naphtha is a noxious, offensive and a sickening mineral substance, and destructive to the health and comfort of those who have to remain in close proximity to it. That [said tank was erected and is maintained in a negUgent and unskillful manner, and by reason of the defendant's said negligence and want of care; and also] by reason of the erection and use of said tank and said works [and the neg- ligent and unskillful manufacture of gas from said naphtha], the defendant has, since the year 19 , and still does, main- tain a nuisance, injurious to the comfort and enjoyment of said plaintiff, and injurious to the rental value of said premises, to plaintiff's damage dollars. Wherefore [etc., demand of judgment, as in Form 988]. 993a. Against Proprietor of Factory, the Machiiiery of which in Operation Causes Vibration of Plaintiff's Building, and Noise." I. [Adapt from Form 988.] 2" II. [As in Form 988.] III. That in or about the month of , 19 , the " This form is mainly adapted from Iron Works, 99 App. Div. 504, 91 McKeon v. See, 51 N. Y. 300, where N. Y. Supp. 129. an injunction against defendant was See next form for similar complaint held proper. The report of the case against an electric company, gives the form of injunction as modi- ™ If plaintiff is not in occupancy of fied and affirmed by the Court of the dweUing, but leases it as such, al- Appeals. lege that fact and change subsequent See, also, Friedman v. Columbia allegations in conformity with the fact. 1086 Abbott's Forms of Pleading defendant erected upon his said adjoining premises a [five- story brick building, placing the southerly wall thereof against and in contact with the northerly waU of plaintiff's said building]. IV. That continuously thereafter defendant used and now uses his said premises for [sawing and cutting stone and marble] by means of heavy and ponderous machinery upon them, propelled by steam; that the operation of said ma- chinery has caused and still causes a loud and offensive noise, which is continued during the day and into late hours of the night, and destroys the peaceful and quiet enjoyment of plaintiff's said dwelling, and disturbs and prevents the repose of members of plaintiff's family; that said opera- tion also causes and has caused a constant shaking and vibration of the plaintiff's dwelling, so as to overturn furniture therein and to greatly injure and destroy the walls, ceiling and plastering thereof, and the quiet use thereof as a dwelUng, thereby rendering it useless for occupancy. [// the injury arise from negligent operation of the machin- ery,^^ may add:] That said vibration and shaking of plain- tiff's dwelling are also caused and enhanced by the negligent operation of defendant's said machinery [state in what general respect]. ' V. That by reason of the premises plaintiff has been damaged dollars. ^' Such an allegation of negligent purpose, or from their cautious use operation does not necessarily change for an unauthorized purpose. Smith the theory of action from nuisance to v. IngersoU, etc., Co., supra. neghgence. Smith v. IngersoU-Sear- So, where negligent operation of a geant Rock Drill Co., 7 Misc. 374, steam hammer is alleged, and plain- 27 N. Y. Supp. 907; Campbell v. tifl proves, without objection, the U. S. Foundry Co., 73 Hun, 576, 57 use of a hammer so ponderous as N. Y. St. Rep. 265, 26 N. Y. Supp. to inevitably interfere with use of 165. It is equally a nuisance if the plaintiff's premises, field, that this interference with the beneficial en- was not a failure of proof, but a va- joyment of one's premises arise from riance, within N. Y. Code Civ. Pro., the negligent use of another's ad- §§ 540, 541. Smith v. IngersoU, etc., joining premises for an authorized Co., supra. Actions for Nuisance 1087 [Or, set forth items of special damage, such as loss of tenant, etc.] Wherefore [etc., demand of judgment, as in Form 988]. 994. Allegation of Operation of Electric Light Plant.^^ That the defendant so wrongfully built, located, con- structed, kept and operated an electric light plant and power station in its said building, and so wrongfully and negli- gently operated the same on its said property adjoining plaintiff's said lot, as to discharge great quantities of smoke, dirt, ashes and cinders upon plaintiff's said property, to fill the air thereabouts with noxious and offensive gases and odors, and to cause his said house and property to shake, tremble, jar and vibrate, to the great annoyance and dis- comfort of plaintiff and his said family, and the great injury of plaintiff's house and the contents thereof. That by reason of the premises, plaintiff's said property has been and is greatly and permanently damaged and de- preciated in value and he has otherwise been damaged in his enjoyment thereof, in all to his damage in the sum of dollars.^' 996. Against Manufacturing Carried on Upon a Floor Over Plaintiff, Causing Injury from Substances Used. [Sustained in Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. Rep. 85.] ^' I. That the plaintiff is engaged in the manufacture and ^2 From Pritchard v. Edison El. by the appellant was sufficiently III. Co., 179 N. Y. 364; Bly v. Same, averred and proved. 172 N. Y. 1; Hyde Park Thomson- 23 gge various demands of judgment Houston Co. V. Porter, 64 111. App. in Form 988, and notes. 152. No proof was given, in the "4 jjgi^^ that the bill was sufficient Illinois case, to show defendant's against demurrer, though it did not erection of the plant, but the court allege in terms that the defendants' held that so much of the allegation business was unsuitable to be carried as charged the erection might be dis- on in the building, nor that there regarded; that the gist of this action was any negligence in the mode of was the operation of the plant and carrying it on, nor that the plaintiff not its erection, and its operation had used due care to avoid injury. 1088 Abbott's Forms of Pleading sale of , in the city of , State of ; that on the day of , 19 , the plaintiff leased the floor of the building known as , on street of the aforesaid city, and the terrri of said lease will not expire until the day of , 19 , and plaintiff is in occupation and possession of said premises; that when plaintiff entered said premises and took possession thereof he caused to be erected therein and placed thereon delicate and expensive machinery necessary for its business; that plaintiff has ever since the aforesaid date carried on its said manufacturing, business on the premises aforesaid. II. That the defendants were and are engaged in manu- facturing and polishing mirrors and other glassware, and subsequent to plaintiff's said occupancy, and in the summer of 19 , they leased the floor from the owner thereof, took possession and established their business therein; that in carrying on their business the defendants conducted the same in such a manner, and in the materials used in the manufacture of their wares, the plaintiff's ma- chinery was damaged as hereinafter alleged. III. [Allege the facts from which the nuisance arises, e. g., as in paragraphs III and IV.] That power to run the ma- chinery of plaintiff and defendants was and is obtained from engines situated in the building below the floor thereof, and was and is conveyed to their premises respectively by means of belting; that in order that the belting might run from one floor of said building to an- other, suitable holes were made in the floors through which said belting passed; that several of such holes existed in the flooring separating the premises occupied by plaintiff and defendants, and also numerous smaller cracks and crannies therein; that the belting and holes in the floor were at all times and are in essentially the same position and condition as at the times plaintiff and defendants respectively took possession as aforesaid. IV. That in carrying on its said manufacture defendants Actions for Nuisance 1089 have used and use large quantities of sand and acids, and allow, and have for a long time allowed the same, and the fumes of said acids, to sift and come through said holes, cracks and crannies and fall upon the plaintiff's said premises, thereby causing great damage to the machinery, materials and goods manufactured and in process of manufacture, particles of said sand getting into the machinery and injur- ing and ruining it, and the acids and fumes of acids cor- roding said machinery and materials, to plaintiff's damage dollars. V. That defendants well knew when they entered into occupation of said premises the character of plaintiff's said business, and thereafter defendants have been by plaintiff frequently notified of said damage, and requested to pre- vent a continuance thereof, but that defendants continued to allow said sand, acids and fumes to come upon plaintiff's said premises. VI. That plaintiff's business was suited to the locality and building where same is situated, and that plaintiff is without adequate remedy at law, and has heretofore been damaged in the sum of dollars. [An injunction and damages were asked; see Form 988.] 996. Allegation of Maintenance of Improper Privies and Drains.^" That since about the day of , 19 , de- fendant has failed to keep the privies, drains and drain pipes connected with his said premises in proper repair, and has suffered the same to remain out of order so that water and filth have escaped therefrom and have percolated through the wall of plaintiff's said house and into the cellar thereof in such quantities as to soak and cover the floor of such cellar and to render it unfit for use and also to greatly injure the walls and. other portions of plaintiff's said building, and to create such an offensive stench and smell as to deprive plaintiff of the use of said premises [and interfere with the 2' From Jutte v. Hughes, 67 N. Y. 267. 1090 Abbott's Fokms of Pleading leasing thereof] and that plaintiff has in consequence thereof sustained damage in the sum of dollars. 997. Against Proprietor of Bowling Alley. [From Pape v. Pratt Inst., 127 App. Div. 147, 111 N. Y. Supp. 354.] 2« [After allegation of plaintiff's occupation of specified prem- ises as a residence, the complaint continued:] That defendant since on or about the day of , 19 , has been continuously, and now is, main- taining bowling alleys in the premises known as , and intends to continue such maintenance. That with defendant's permission there is continuous bowUng therein on each week day during the hours of [specify]; that such bowling causes great noise which mate- rially impairs plaintiff's enjoyment of his said dwelling house, and constitutes a nuisance. [Judgment for an injunction, or damages, or both.] ^ 998. Against Proprietor of Gambling Hall.^^ I. That on or about the day of , 19 , one M. N. was the absolute owner in fee simple of the following described property in . , county of , to wit, [description], and thereupon, to wit, on the date aforesaid, said M. N. entered into a lease in writing with the defendant for the premises aforesaid, which leasing was for the term commencing on the day of , 19 , and ending on the day of , 19 , [a copy of which is hereunto attached, marked "Exhibit A," and made a part of this complaint.] 2« HeU (sustaining complaint ^ Complaint adapted from Hill v. against demurrer), that though a Pierson, 45 Neb. 503; 63 N. W. Rep. bowling alley was not a nuisance 835, where plaintiff failed at the trial ■per se, the complaint would permit to maintain his allegations of special evidence to show that it was so lo- damage. It was held, howeverj cated and conducted as to be a that a gambling house is per se a nuisance. public nuisance. " See Form 988. Actions for Nuisance 1091 II. That the defendant thereupon entered m and upon the said premises as the tenant of said M. N. III. That thereafter and on or about the day of , 19 , the said M. N., for a valuable consideration, granted and conveyed the premises aforesaid to plaintiff by good and sufficient warranty deed, through and by which the plaintiff became the owner in fee simple of the premises aforesaid, taking the property aforesaid free and clear of all incumbrances, save only the lease aforesaid; and thereupon defendant did accept and has accepted plaintiff as landlord of the premises aforesaid, and has paid the rent therefor to' the plaintiff. rV. That the said defendant is maintaining a nuisance in and upon said premises, which nuisance consists in this, to wit : That the defendant is keeping and using the said prem- ises as a gambhng place, and is keeping and maintaining thereon and therein gambling tables, and is maintaining thereon and therein. a faro bank, and maintaining other games of chance, the technical names of which are unknown to the plaintiff. V. That the keeping and maintaining upon and in said premises of the aforesaid nuisance has brought the premises into ill-repute, and if permitted to be maintained and carried on in and upon said premises will cause the plaintiff to be- come subject to statutory habilities, which will bring upon the plaintiff great and irreparable injuries and will subject him to public scandal and disgrace. That the keeping and maintaining in and upon the aforesaid premises of the nuisance aforesaid is causing great and irreparable injury to plaintiff's property aforesaid, from the nature and char- acter of which injury redress at law would be uncertain and inadequate and the damages resulting therefrom impossible of ascertainment. Wherefoke [etc., demand of injunction, as in Form 988], 1092 Abbott's Forms of Pleading 999. Against Proprietor of House of Prostitution, to Enjoin Continuance and for Damages.^' I. That the plaintiffs are, and at the times hereinafter mentioned were, lawfully seized of an estate in fee in the following described real property [description], which said real property, so owned by the plaintiffs, lies and is located in the immediate vicinity of the property hereinafter de- scribed as being occupied and maintained by the defendant. II. That said real property, so owned by plaintiffs as aforesaid, is situated in the residence portion of the city of , State of , and is now occupied by plain- tiffs for residence purposes only, and is suitable and valuable for residence purposes only. III. That the defendant was at the times hereinafter stated, and still is the owner and possessed of certain other premises in the vicinity of the premises owned by the plain- tiffs as hereinbefore alleged. The said premises so owned and occupied by said defendant are described as follows, to wit [description]. IV. That ever since on or about the day of , 19 , the defendant has and does now maintain the building on said premises as a house of prostitution, and for the purposes of assignation and prostitution, and has and does maintain and carry on therein said immoral practices and maintain said house as a public resort for immoral, lewd and obscene purposes. V. That at all times subsequent to said day of , 19 , defendant's said premises have been and are the resort, at all times, and of the night especially, of lewd, immoral and dissolute characters, both male and female; that loud, offensive, disorderly and unseemly behavior is constantly attendant thereupon, and assaUs the sight and hearing of plaintiffs and their families and visitors. ^' Adapted from Redway v. Moore, within the rule requiring special 2 Idaho, 1036, 29 Pac. Rep. 104, damages to be shown by the one where it was held that a house of instituting a private action to en- prostitution was a public nuisance join. Actions for Nuisance 1093 VI. That by reason of the premises the comfortable use and enjoyment of said property of plaintiffs has been and is and will be greatly interfered with and destroyed, the real property owned by the plaintiffs is rendered unsuitable for occupation for residence purposes and is thereby greatly depreciated and lessened in value, to plaintiffs' damage to the amount of dollars. Wheeepore, plaintiffs demand judgment: I. That the defendant be restrained and enjoined from maintaining or using said premises and the buildings thereon as a house of prostitution or for other immoral piuposes, or permitting the same to be so used to the injury of plaintiffs. II. That the plaintiffs recover from defendant dollars damages and the costs of this action, and have such other and further relief as may be just. 1000. To Enjoin Offenses Against Public Decency. [Sustained in Barnard v. Finkbeimer, 162 App. Div. 319, 147 N. Y. Supp. 514.] [After alleging the occupation by plaintiff and defendant of adjoining premises.] That for several months prior hereto, defendants daily while upon their said premises, or in the street in front thereof, [state improper conduct, as:] have indulged in loud and profane swearing and vile and obscene language; that such profane swearing and obscene language can be clearly heard by plaintiff and his family in his said adjoining prem- ises. That such conduct on defendant's part materially impairs plaintiff's enjoyment of his said premises and render them imfit for comfortable and respectable occupation, and unfit for a residence. On information and belief that defendant intends and threatens to continue said improper and wrongful conduct. That plaintiff has sustained dollars damages. Wherefore [prayer for an injunction and past damages, as in Form 988]. 1094 Abbott's Forms of Pleading 1001. For Removal of Encroachment in Highway; by Public Authorities.'" I. [Allege plaintiff's official character; if municipality, see Form 55.] II. [Allege plaintiff's authority to abate nuisance, if depend- ing on private statute, or ordinance.] III. [Allege public character of highway in which encroach- ment exists, as:] That street, within the limits of said city of , has existed as one of the public streets of said city for more than years, and has during all of said time been constantly used by the traveling pubhc as a public street, and that during all of said time said street has been eared for by [plaintiff], which has continuously main- tained the roadway and sidewalks thereof. [If there was a formal dedication and acceptance, this mny be alleged, as:] That said street, more than years prior to the commission of the wrongful acts herein- after set forth, was laid out and established by the owners of the lands over which it extended, that the owners of said lands duly dedicated said street as so laid out and estab- lished by them to public use as and for a public street, with all the rights and privileges appertaining thereto; that [plaintiff] through its proper officers duly accepted the ded- ication of such street, and has since such acceptance con- tinuously maintained the same as a public street. IV. [Allege defendant's ownership of premises abutting on the street.] V. [Allege encroachment, as:] That in the month of , 19 , defendant wrongfully commenced to and did make an excavation in front of his said premises, and in the said street, extending feet into said street, and erected therein and thereon [state what, as:] a foundation wall and the front wall and northerly portion of a buUding, the re- maining portion of which being placed upon defendant's said premises. ™ Adapted from complaints in N. Y. 162, and Village of Haver- Village of Oxford V. Willoughby, 181 straw v. Eckerson, 192 id. 54. Actions for Nuisance 1095 VI. That said excavation and erection in said street were unlawfully made, withaut plaintiff's permission, and against its objection and notification to the defendant that the same was an encroachment within the street and a nuisance. VII. That such encroachment is a public nuisance, and interferes with and prevents the free use of the said street by the public; that it causes and will continue to cause irreparable injury to said street; that said encroachment and erection are intended to be permanent in character, and to remain in said street unless restrained. Wherefoee [demand for judgment of injunction, as in Form 988]. 1002. The Same, by Private Person, Suffering Special Damage." I. [Allege plaintiff's ownership of premises, as in Form 988.] II. [Allege defendant's ownership of premises.] III. That defendant has commenced and is engaged in the erection upon his premises of a certain building, the front wall of which extends into said street for a distance of about feet beyond the [easterly] line of said street; that it is the intention of the defendant, unless restrained, to continue said illegal structure in the said high- way. IV. [Allege special damage resulting to plaintiff, as:] T^hat the unlawful structure so being erected by defendant se- riously injures plaintiff's said property, and obstructs the view of and from plaintiff's property, interferes with plain- '1 From complaint in Ackerman owners. But no projections into V. True, 175 N. Y. 353, where the the street are thereby authorized, complaint was sustained, although Linton v. Coupe, 138 App. Div. no question of pleading was directly 518, 123 N. Y. Supp. 321. raised. One who has dedicated land for A city may by ordinance allow use as a public street may bring abutting owners the use of some of .ejectment to have encroachments the street, for court yards, which removed. Linton v. Coupe, supra. may be fenced by the abutting 1096 Abbott's Forms of Pleading tiff's easements of light, air and access appurtenant to his property, and interferes with the use and occupation thereof; that plaintiff has already sustained damage therefrom in the sum of dollars. V. That defendant by his said structure is unlawfully using said public highway without any franchise or right to so use the same, and that the said structure so being erected constitutes a nuisance and will cause plaintiff irreparable damage in the future unless required to be removed, and for which plaintiff has no adequate remedy at law. Wherefore [demand for injunction and damages, as in Form 988]. 1003. Against Creator of Dangerous Condition in Ihiblic Highway, Causing Personal Injury.'^ I. That street, in the city of , was at all times hereinafter mentioned a public highway for the passage of the public. II. On information and belief, that on or about the day of , 19 , the defendant, without any permission or license so to do, and wrongfully and unlawfully, caused to be placed large quantities of [building materials and earth] in said street, near the corner of street, and wrongfully and unlawfully left the same therein, thereby obstructing said highway and rendering the same dangerous. ^^ [In order to anticipate a plea that defendant had ''' For similar action for wrongful tenance. Ennis v. Myers, 29 App. interference with sidewalk, see Fisher Div. 382, 51 N. Y. Supp. 550. V. Rankin, 25 Abb. N. C. 204, 55 '' Since ah unauthorized excava- Hun, 606, 7 N. Y. Supp. 837, and tion in a highway which makes it Coon V. Froment, 25 App. Div. 250, dangerous to persons lawfully using 49 N. Y. Supp. 305, from which the street is a nuisance, one suing this form is in part adapted. for injury need not assume that it If the obstruction is of a char- was made under lawful authority; acter which could have been lawfully he may proceed upon the theory maintained if permission had been that it was unauthorized, and there- secured, a complaint is defective fore an absolute nuisance, and may which fails to allege either its unlaw- frame his complaint upon that ful or negligent construction or main- theory. If the defendant had au- Actions for Nuisance 1097 permission to create the obstruction, it may be further alleged:] That said materials and earth were negligently placed by defendant upon the portion of said highway used by vehicles, and defendant negligently omitted to place a light thereon during the darkness, and negligently failed to place any guard around the same [or otherwise show negligence according to the fact].^^ III. That thereafter and on or about the day of ,19 [at ^bout the hour of o'clock in the evening], while plaintiff was driving upon said highway, by reason of said obstruction [and its negligent maintenance] plaintiff was thrown from his [carriage]. IV. [Allege injury as in action for negligence; see Forms 973- 980.] Wherefore [etc., demand of judgment for damages, as in Farm 988]. 1004. The Same, by Private Owner or Occupant Sustaining Special Damage.''^ I and II. [Adapt from preceding Form 1003.] [Allege special damage resulting from the obstruction, as:] thority to make the excavation, he permission merely changes the ac- must so aEege. Clifford v. Dam; 81 tion from one on an absolute nuisance N. Y. 52; Brown v. Met. St. Ry. Co., to ope in which the defendant's 60 App. Div. 184, 70 N. Y. Supp. neghgence comes into issue. But it 40, aff'd 171 N. Y. 699. Permission does not necessarily change the ac- from the city must be pleaded by tion to one on negligence. One who, defendant. Hubbs v. Schwaneflugel, although acting on permission, neg- 87 App. Div. 604, 84 N. Y. Supp. Ugently creates or maintains an 560. If the municipality had no excavation or obstruction on the authority to grant the permit, it is public highway, thereby commits itself liable for a resulting injury. a nuisance. See Hartman v. Lowen- Cohen v. Mayor, 113 N. Y. 532. stein, 90 Misc. 686, 154 N. Y. Supp. Practically, it may be easier for 205, and cases cited, plaintiff to follow this method, '* It is essential that special dam- charging the act as an absolute age be alleged and proved. Man- nuisance in his original complaint; hattan, etc., Line v. Third Ave. R. if defendant pleads a license, plaintiff Co., 154 App. Div. 704, 139 N. Y. may add or substitute a charge of Supp. 434; Gallagher v. Keating, 40 negligence in an amended complaint. App. Div. 81, 57 N- Y. Supp. 632. See next note, however. What is such special damage as * "The fact that defendant had will support a private action for a 1098 Abbott's Foems of Pleading III. That for more than years last past, plaintiff has had a store for the sale of books at the corner of said streets; that customers of plaintiff have heretofore used said highway in obtaining access to his said store, but that, by reason of said obstruction, they are prevented from so doing; and plaintiff has lost, and will continue to lose, their said custom and the profits which would have arisen therefrom, to his damage dollars. Wheeefore [etc., demand for judgment for abatement, or injunction, and damages as in Form 988]. 1005. For Making Excavation in Dangerous Proximity to Highway, and Failing to Guard the Same.'" I. That on or prior to the day of > 19 , the defendant made, or caused to be made, an excavation, or hole, within feet of [or, immediately adjacent to] the [east] line pf a public street, in the city of , known by the name of street, which excavation was of the depth of about [four] feet,* and wrongfully,'^ negli- public nuisance has been the subject ^ From Slavitz v. Morris Park of numerous and conflicting decisions. Estates, 98 Misc. 314, 162 N. Y. The precedent is taken from Wilkes Supp. 888; Beck v. Carter, 68 N. Y. 11. Hungerford Market Co., 2 Bing. 283 (where plaintiff's recovery was (N. C.) 281. The weight of authority sustained on appeal, the court re- is that the damage must be substan- viewing many cases) ; and from Col- tial and not merely nominal. Waker- lins v. Decker, 120 App. Div. 645, man v. Wilbur, 147 N. Y. 657; Close 105 N. Y. Supp. 357. V. Whitbeck, 126 App. Div. 544, 110 See, also. Form 869 and notes. N. Y. Supp. 717. The excavation must be so close Yet the requirement to show that the person while on the highway special damage where only an in- may fall in through stumbUng or junction is sought does not call taking a misstep. CoUins v. Decker, for the proof of such exact amounts supra. To merely allege that de- as might be necessary in an action fendant permitted heaps of ice to for damages. Hard v. Blue Points form on the sidewalk in front of his Co., 170 App. Div. 524, 156 N. Y. premises states no cause of action. Supp. 465. Eldred v. Keenan, 164 App. Div. A claim of damage based entirely 63, 149 N. Y. Supp. 376. on future expectation will not be "Not in precedent, but such a suflScient. Higgins v. N. Y. Dock characterization of the act was held Co., 75 Misc. 227, 132 N. Y. Supp. necessary, in Fisher v. Rankin, 25 590. Abb. N. C. (N. Y.) 191, 27 N. Y. Actions for Nuisance 1099 gently and carelessly left and permitted the same to remain open and unguarded, without any barrier or protection of any kind between it and said street [and without any light in the nighttime]; that thereby the use of said public high- way was made dangerous and said excavation was a menace to persons who might be using said highway and by slight deviation therefrom fall into the same, while using ordinary care. [Or, in a proper case, from the *: and wrongfully and neg- ligently deprived said side of said street of its lateral support, whereby the same caved in and fell.^^ II. That on or about the day of , 19 , while plaintiff was passing along said street, and using due care, he fell [therefrom] into said excavation, and received the injury hereinafter alleged. III. [Allege plaintiff's resulting injury and damage, as though the action were in negligence; see Forms 973-980.] 1006. For Erecting and Maintaining Upon Highway a Structure Calculated to Fri^ten Horses.^^ I. That in or about the month of , 19 , the defendant erected upon the side of the public thoroughfare known as street, in the city of , and has since continuously operated a [steam pump, used for the pm-pose of supplying water as required for the needs of its said railroad]. II. That said street was at all times herein men- tioned, a highway much used for travel by means of horses. III. That said [prnnp] has been and is improperly and wrongfully located and operated upon said highway, and is a State Rep. 582, 7 N. Y. Supp. 837, ''Adapted from complaints in in order to state a cause of action Pettit v. N. Y. Central, etc., R. R. in nuisance; compare Hartman v. Co., 80 Hun, 86, 29 N. Y. Supp. 1137; Lowenstein, 90 Misc. 686, 154 N. Y. Lamming v. Galusha, 135 N. Y. 239. Supp. 205. See Forms 854 and 1008, for com- ''From Adlin v. Excelsior Brick plaint against municipality licensing Co., 129 App. Div. 713, 113 N. Y. a nuisance. Supp. 1017. 1100 Abbott's Forms of Pleading nuisance, for the reason that its appearance is calculated to and does frighten horses driven in front of it, and that in its operation by defendant, large quantities of smok& and steam are frequently and necessarily emitted, accompanied by loud and alarming noises, likewise frightening said horses. [And, if negligence in its operation is also relied upon, allege: III. That on or about the day of , 19 , the defendant so negligently and carelessly maintained and operated its said pump that as plaintiff was driving his horse upon said highway immediately in front of said pump, large quantities of smoke and steam were cast therefrom accompanied by loud and alarming noises which frightened said horse and caused him to run away and deprived plaintiff of control of him].*" IV. [Allege plaintiff's resulting injury and damage in same manner as in action for negligence; see Forms 973-984-] Wherefore [etc., demand of judgment for damages, as in Form 988]. 1007. Against City, for Removal of Structure Erected by It in Public Street. [Sustained in Barrows v. City of Sycamore, 150 111. 588, 37 N. E. Rep. 1096.] " I. That the plaintiff at all times hereinafter mentioned was and is the owner of a certain lot of land in the city of , with a [two-story] building on the corner thereof, which he used and occupied as a residence. II. That on or about the ' day of , 19 , the defendant city wrongfully constructed, or caused to be ^''Such an allegation of negligence damages from constant "apprehen- in operation does not necessarily sion" that the structure might fall change the theory of action from upon plaintiff's building, and that nuisance to negUgence. Smith v. it was "liable" to fall and burst, Ingersoll-Sergeant Rock DrDl Co., but no facts were alleged showing 7 Misc. 374, 27 N. Y..Supp. 9p7. any defects in construction or negli- And see last note to Form 994. gence in maintenance. Held, in- *' The complaint also charged sufficient to show special damage. Actions for Nuisance 1101 constructed and erected, and now wrongfully maintains, at a distance of feet from said building, and within the limits of the roadway of said street, a water pipe or water tower. [Description showing great dimensions of height and vridth.] III. That by reason of defendant constructing, or causing to be constructed, said water pipe, as above stated, in the pubUc streets of said city, and so near to plaintiff's building, said pipe obstructs the light to said plaintiff's building, and particularly to certain rooms of said building, and obstructs the view from said building; and said pipe, being of great height and width, and in front of and near said plaintiff's premises, as aforesaid, casts a shadow upon said building, and makes the appearance of said premises unsightly and otherwise injuriously affects said premises, thereby rendering plaintiff's said premises less convenient and comfortable for residence purposes. • IV. That by reason of the wrongful acts and doings of the defendant, as aforesaid, and the injuries done to plaintiff's property, as aforesaid, the market and rental value of said premises is thereby greatly decreased. [That, by means of the premises, defendant has greatly injured and damaged the plaintiff's said property within the meaning of the Constitution and laws of this State; yet defendant has never paid, nor offered to pay, to plaintiff, any of the damage so injuriously and unjustly caused to his property, nor has any proceeding been instituted by defend- ant for the purpose of having just compensation therefor as- certained.] *^ That by reason of the premises, plaintiff's said property has been greatly damaged and depreciated in value, to. his damage dollars. Wherefore [etc., demand of judgment, as in Form 988]. " This allegation was contained in the complaint. It would seem un- the complaint, but was not com- necessary, as in the nature of an tici- mented on in the court's decision patory avoidance of a plea of pay- as essential to the suflSciency of ment or condemnation. 1102 Abbott's Forms of Pleading 1008. Against Municipality, for Licensing an Unlawful and Dangerous Use of Highway.^' • I. [Allege defendant's capacity as municipal corporation, as in Form 55, continuing:] that Avenue was at the times hereinafter mentioned one of the pubhc streets and thoroughfares within said city, and that it was the duty of defendant to maintain said avenue in a condition free from danger and peril to persons lawfully in the same. II. That on or about the day of , 19 , defendant wrongfully and unlawfully permitted and au- thorized [state unlawful use, as:] a display of fireworks, in- cluding explosive and highly dangerous rockets and bombs, to be given in said Avenue, in close and dangerous proximity to crowds of people gathered for the pmpose of witnessing such display. III. That such display of fireworks rendered said pubUc street unsafe and dangerous, and that such use thereof was unreasonable and unlawful, and the same constituted a nuisance wrongfully allowed by defendant. IV. That plaintiff was at such time lawfully upon said street, and composing one of the 'crowd witnessing said dis- play, and wholly ignorant of the dangerous character thereof, that plaintiff was then and there severely and permanently injured by the explosion of a bomb or other species of fire- works cornposing a part of said display. V. [Allege resulting injuries; see Forms 973-980, under Negligence.] Wherefore [etc., demand for judgment]. 1009. For Injuries Received from Maintenance of Vault Under Sidewalk." I. [Allege defendant's ownership of premises as in Form *' Prom complaint in Landau v. ^* The theory of the complaint is City of New York, 180 N. Y. 48, nuisance, based upon the unlawful where plaintiff recovered and his maintenance of the vault. If defend- recovery was upheld on appeal. ant pleads a license for such main- See, also, Form 854 under Negli- tenan'ce, no recovery may be had tJBNCE. under this form upon proof of de- Actions for Nuisance 1103 988, continuing:] That said premises abutted upon a certain public highway known as street; that there was an opening in the pubHc sidewalk, in front of said premises, lead- ing into a cellar or vault under the sidewalk in said street, which openmg, and the cellar or vault underneath, belonged to defendant's said premises, and were maintained by him and were in his use, occupancy and control/^ That such opening in said sidewalk was wrongfully and unlawfully made and maintained by defendant, without permission therefor from the pubUc authorities.^* II. That on or about said day defendant wrongfully, unlawfully and negUgently permitted said opening and cellar to be and continue, and the same then and there was, so badly and insufficiently and defectively covered and protected, that the same was dangerous and a nuisance; that by reason of such imlawful construction and main- tenance, ''' and also by reason of its said dangerous condition, plaintiff, who was then and there lawfully passing in and along said street, [without fault or neghgence on his part,] fell into said hole. fendant's negligence in tailing to keep the hole over it properly covered. And, too, if the complaint merely charges negligence of this character, no recovery may be had upon the theory of nuisance. See Campion V. RoUwagen, 43 App. Div. 117, 59 N. Y. Supp. 308; Matthews v. De Groff, 13 App. Div. 356, 43 N. Y. Supp. 237. If defendant had authority to construct and maintain the vault, the plaintiff's recovery may neces- sarily be based on negligence; see Forms 864 and 865, for complaints on that theory. Separate counts may be properly included, charging both negligence and nuisance. " It was held in Clifford v. Dam, 81 N. Y. 52, that the structure was a nuisance prima facie, apd that plaintiff was not bound to prove in the first instance want of contribu- tory negligence; nor could defendant prove a license granted by the mu- nicipal authorities without having pleaded it and also showing com- pliance with its terms. Followed in Balke v. Meyer, 110 App. Div. 734, 97 N. Y. Supp. 424. ^° This allegation is inserted in compliance with the ruling in Ennis V. Myers, 29 App. Div. 382, 51 N. Y. Supp. 550, but it seems in conflict with Clifford v. Dam, supra. " Although originally licensed, the manner of maintenance may con- stitute a nuisance. Hartman v. Lowenstein, 90 Misc. 686, 154 N. Y. Supp. 205. 1104 Abbott's Forms of Pleading III. [Allege resulting injury as in negligence; see Forms 973-980.] . Wherefore [etc., demand of judgment for damages, as in Form 988.] 1010. Obstruction in Sidewalk, Maintained by Abutting Owner, Making Sidewalk Unsafe/* I. [Allege defendant's ownership of abutting premises, as in Form 988.] II. That said street was, on the day of , 19 , and for many years prior thereto, a pubhc highway; that a sidewalk was maintained on the side thereof, which was used extensively by the traveling public. III. That on said day, and prior thereto, defendant wrongfully suffered, permitted and maintained in said side- walk in front of his said premises [allege character of obstruc- tion, as:] a water-cock and water-cap thereon which together protruded and projected several inches above the surface of the sidewalk; that thereby defendant created and main- tained a nuisance, which rendered said sidewalk dangerous for use by pedestirians. IV. That on said day while plaintiff was carefully walking upon said sidewalk he was thrown down by his foot striking said water-cock and water-cap. V. [Allege resulting injuries, as in Negligence, Forms 973- 980.] Wherefore [etc., demand for money judgment]. 1011. Against Owner of Leased Premises for Injuries Caused by Fall of Material Therefrom. ^^ ' I. That at the times hereinafter mentioned defendant *' Adapted from complaint in Hall 102 N. Y. Supp. 857, where the com- V. Cooper Land Co., 203. N. Y. 587, plaint was held to charge a nuisance, where a recovery for plaintiff Was although negligence was charged in affirmed. failing and refusing to alter the ■" Adapted from complaint in Ug- structures ^nd thereby make them gla V. Brokaw, 117 App. Div. 586, secure. Actions for Nuisance 1105 was the owner of premises known as [state], and abutting on said street. II. [Allege the unsafe construction that was the cause of the injury, as:] That divers structures had been erected upon the roof of said building which were dangerously and improperly constructed in that they were insecurely fas- tened to the roof, and were composed of materials insecurely fastened together, so that said structures and the materials composing the same were unstable and Uable to be blown off or fall off from said roof upon the said street; that said structures constituted a nuisance, created and maintained by defendant. III. [Allege fall of material and plaintiff's resulting injury and damage.] 1012. Against One Using Sidewalk Unreasonably.'^" I. That at the times hereinafter mentioned defendant was [the owner and] in possession of certain premises known as Street, in the City of , abutting on the [easterly] side of said street. II. That on or about the day of , 19 , and prior thereto, defenHalit had and maintained * [state character of unreasonable use, as:] a platform and a pair of steps extending from the front of said premises out upon and partly across said sidewalk. III. That said [platform and steps] were in their con- struction -and maintenance an unlawful obstruction and incumbrance upon the said public street, and constituted a pubUc nuisance. IV. That at all times aforesaid defendant also used many large wagons and trucks, with many teams by which said wagons and trucks were drawn, all of which were under defendant's management and control. V. [Allege special damage to plaintiff, as:] That on or ** Adapted from complaint in Mur- See, also, next form to enjoin an phy w. Leggett, 164 N. Y. 121, where exhibition attracting crowds upon a recovery for plaintiff was upheld. the sidewalk. 1106 Abbott's Forms of Pleading about said day of , 19 , while plaintiff was using said sidewalk in front of defendant's said premises, defendant backed one of his said trucks and teams over and upon said sidewalk to and against said steps and platform, thus unlawfully and entirely blocking up the said sidewalk so that plaintiff in order to proceed on his way was com- pelled to and did undertake to pass over said platform and steps; that while so doing, and by reason of defendant's said wrongful acts [and the unsafe and dangerous condition of said platform and steps caused by defendant's negh- gence — state character, as — in permitting the same to be covered with greasy and slippery substances]," plaintiff was precipitated therefrom to the sidewalk. VI. [Allege resulting injury, as in Negligence; see Forma 973-980.] Wherefore [etc., demand for judgment]. . 1013. The Same, by Means of Exhibition Attracting Crowds. 52 I. [As in Form 1012.] II. [As in Farm 1012 to *, continuing:] and continues to maintain a daily exhibition on his said premises, by means of an unusual display in the show windows thereof, which was and is calculated to and which has attracted and now does, attract great crowds thereto upon the sidewalk in front thereof; that said exhibition consists of [briefly describe its character]. III. [Allege damage to plaintiff, as:] That plaintiff is the [owner and] occupant of premises adjoining defendant's said premises, and conducts therein the business of [state]; that by reason of the presence of said great crowds of people upon the sidewalk in front of defendant's said premises, said sidewalk has been and now is constantly obstructed by reason whereof plaintiff's customers are prevented and ^1 Negligence in the maintenance ^' Adapted from Shaw's Jeweby may create a Uability for nuisance. Shop v. N. Y. Herald Co., 170 App. See note to Form 1009. Div. 504, 156 N. Y. Supp. 651. Actions for Nuisance 1107 detained from reaching plaintiff's store and gaining access thereto. IV. That by reason of the premises plaintiff has already- suffered damage in the sxxm of dollars, and will continue to suffer great damage in the future unless the continuance of said exhibition by defendant be enjoined. Wherefore [etc., demand for injunction and damages as in Form 988]. 1014. For Obstructing a Private Way.^' I. That the plaintiff, at the times hereinafter mentioned, was [and still is], the owner and seized in fee of [here describe his premises, e. g., a meadow in the town of , and coimty of ], and had and now has a right of way [of necessity] ^* therefrom over adjoining land occupied by defendant to the highway [or, to other land of the plaintiff], to pass and repass on foot freely at all times [or, with horses, or, with carts, designating the character of the right according to the fact]. II. That the defendant, commencing on or about the day of , 19 , and continuously there- after, alid before this action, wrongfully obstructed and now obstructs said way by [building and maintaining a fence across it], whereby the plaintiff thereafter was, and still is wholly prevented from enjoying said way, to his dam- age dollars; that defendant by his said acts has created and is maintaining a nuisance, and intends and threatens to continue to maintain the same. IIJ. [State special damage, if any.] ^^ " See, generally, as to this action, acquired a right of way by adverse Heughes v. Galusha Stove Co., 133 user will not support a claim that a App. Div. 814, 118 N. Y. Supp. 109; right of way of necessity exists. Hey V. Collman, 78 App. Div. 584, Staples v. Cornwall, 114 App. Div. 79 N. Y. Supp. 778, aff'd 180 N. Y. 596, 99 N. Y. Supp. 1009, aff'd 190 560; Rowland v. Harder, 153 App. N. Y. 506. Div. 442, 138 N. Y. Supp. 129, aff'd " While in a private action for ob- 215 N. Y. 664. ' structing a pubUc way, some special '* An allegation that plaintiff had damage must be laid, it is otherwise llOS Abbott's Forms of Pleading Wherefore [etc., demand of judgment for an injunction and damages, '^^ as in Form 988]. 1015. Injury from Defective Water-Pipes in Adjoining Premises." I. [Allege plaintiff's ownership of premises, as in Form 988.] II. [Allege defendant's ownership or possession, or both, of adjoining premises.] III. That defendant has, since about , 19 , maintained, and now maintains upon his said premises water pipes and drains which have been for such period and now are broken and leaky, and in such condition as to per- mit quantities of water and drainage to escape; that defend- ant at all said times had notice and knowledge of such con- dition of said pipes and drains. IV. That by reason of such condition of said pipes and drains, large quantities of water have leaked and now leak upon and through the wall and foundations of plaintiff's building upon said premises, and into the basement thereof [or otherwise according to fact]. V. [Allege resulting damage, as:] That by reason thereof, the basement of plaintiff's said building has become and is unfit i6r any use whatever, that the walls of the building have been injured and the foundations thereof undermined so that they will have to be replaced in order to be made safe, that foul smells and dampness have continuously re- sulted, making plaintiff's premises unfit for occupancy, in all to plaintiff's damage dollars. VI. That said condition of defendant's adjoining premises in respect to a private way. Lan- " From complaint in Finkelstein sing V. Wiswall, 6 Den. (N. Y.) 213, v. Huner, 179 N. Y. 548, where plain- 5 How. Pr. (N. Y.) 77. tiff's recovery was upheld. ^ That a demand for damages for See Coyle v. Davidson, 92 App. obstructing plaintiff's way, and that Div. 322, 86 N. Y. Supp. 1089, for defendants be enjoined from ob- allegations charging damages from structing the way, may be imited, underground percolations caused by see Getty v. Hudson Rivfer R. R. such leaky drains, from which this Co., 6 How. Pr. (N. Y.) 269. precedent is also adapted. Actions for Njjisance 1109 constitutes a nuisance, which defendant intends to con- tinue and for which plaintiff has no adequate remedy at law. Wherefore [etc., demand for injunction and damages as in Form 988]. 1016. From Flowing Water from Adjoining Roof on Plaintiff's Premises.^ I. That since on or about the day of , 19 , the plaintiff was [and now is] the owner in fee of a dwelling-house and premises known as No. street, in the city of , in which house the plaintiff and his family then resided [and still reside]. II. That on or about said date the defendant wrongfully erected a building [and has since maintained the same] so near to the said dwelling-house of the plaintiff, and in so wrongful and improper a manner, that by reason thereof, on said day, and on divers other times afterwards and before this action, large quantities of rainwater ran from said building, and from the gutters thereof, upon and into plain- tiff's said dwelling-house and premises, whereby the walls, ceilings, papering and other parts thereof were wet and damaged, and said dwelling became [and continues to be] unfit for habitation [state further or other damage according to fact], to the plaintiff's damage dollars. Wherefore [etc., demand of judgment, as in Form 988]. 1017. Depriving Plaintiff's Land of Lateral Support; Land in its Natural Condition. ^^ I. [Allege plaintiff's ownership of premises, as in Form 988, '* This form does not contemplate lateral support, viz., when the land the existence of any encroachment is not burdened with buildings, see by way of overhanging gutters. Bergen v. Morton Amusement Co., 59 Adapted from complaint in Riley 178 App. Div. 400, 165 N. Y. Supp. V. Continuous Joint Railroad Co., 348; Leerburger v. Hennessey Realty 193 N. Y. 643, where a judgment for Co., 154 App. Div. 158, 138 N. Y. plaintiff was upheld. Supp. 921, aff' d 214 N. Y. 659; As to the common-law right of Bloomingdale v. Duffy, 71 Misc. 1110 Abbott's, Forms of Pleading adding in a proper case:] That upon the [easterly] portion thereof plaintiff had erected a small building, which in no way increased the pressure or lateral thrust upon the land at the [westerly] boundary thereof. II. That at the times hereinafter mentioned defendant was the owner of certain lands which immediately adjoined on the [west] the plaintiff's lands hereinbefore described. III. That in or about the months of , 19 , de- fendant wrongfully, and without using and exercising proper care or caution, excavated the rock and dirt on his said land, and took away the same, without leaving proper or sufficient support for plaintiff's land. IV. That by reason of defendant's excavating as afore- said, plaintiff's land thereafter sank, gave way, and slid down; that thereby the foundations under plaintiff's building were undermined, and the building itself settled, and the walls thereof cracked and fell down [or otherwise according to the fact]. V. That plaintiff has sustained damage by reason afore- said in the sum of dollars. Wherefore [etc., demand for judgment]. 1018. The Same, Where Foundations of Plaintiff's Building were Injured; Defendant Given License to Shore up and Protect Plaintiff's Walls; Against Owner and Contractor.^" I. [Allege ownership by plaintiff of premises, as in Form 988, continuing with description thereof, as:] That at the times hereinafter mentioned there was upon said premises a four- 136, 127 N. Y. Supp. 1080, aff'd 146 statute. Post v. Kerwin, 133 App. App. Div. 879. Div. 404, 117 N. Y. Supp. 761. Lia- ™ From complaint in Wendel v. biUty under it is absolute and does Royal Ins. Co., 207 N. Y. 728, where not depend on defendant's negU- a recovery by plaintiff was upheld. gence. Id. The owner cannot ea- The allegations are framed to show cape Uability by showing the work a cause of action under § 22 of the was done by an independent con- N. Y. City building code. This code tractor. Rosenstock v. Lane, 140 has the same force and effect as a App. Div. 467, 125 N. Y. Supp. 361. Actions for Nuisance im story brick building, the property of plaintiff, and that all the walls thereof were independent walls; that thfe founda- tions of said building were not [ten] feet below the curb. II. [Allege ownership by the defendant— owner—of the ad- joining premises.] III. That on or about the day of , 19 , defendant [owner] entered into a contract with defendant [contractor] whereby the latter agreed among other things to excavate the earth and rock on defendant [owner's] said premises, to a depth of more than [ten] feet below the curb. IV. That thereafter the defendant [contractor] with and under the direction of the defendant [owner] proceeded to excavate the earth and rock on the said premises and carried said excavation to the depth of more than [ten] feet below the curb. V. That at the request of the defendants plaintiff gave to the defendants the necessary hcense and permission to enter upon his said adjoining land, to preserve from injury the adjoining and contiguous walls of plaintiff's said building, and to support the same by proper foundations; that pur- suant to and under said hcense defendants' entered upon plaintiff's said adjoining land, and occupied the same for such purpose. VI. That defendants [so improperly, wrongfully, illegally and neghgently did and performed the work of excavating and building upon the said premises of the defendant — ' owner — , and so improperly, wrongfully, illegally and neg- hgently did and performed the work which they] ^^ under- took to [do to] preserve from injury the adjoining and con- tiguous walls of plaintiff's said building, and to support the same by proper foundations, [but] that [state resulting injury, as:] all, of the walls of plaintiff's said building became broken, bulged, and out of plumb, and in a dangerous condition [etc., according to the fact]. °' Negligence or improper acts need not be charged under the N. Y. City building code. Cases, supra. 1112 Abbott's Foems of Pleading VII. That it jthereby became unsafe for plaintiff [or, for plaintiffs tenants] to remain in his said building, and he was [or, they were] compelled for safety to remove therefrom, and plaintiff was compelled to and did [cancel their leases, and] have his said building torn down. VIII. That plaintiff has sustained damage by reason of the premises in the sum of dollars. Wherefore [etc., demand for judgment], 1019. The Same, Where Plaintiff's Building was Injured; Defendant not Attempting to Shore up Plaintiff's Building.*^ I to III. [As in preceding form.] IV. That plaintiff has been at all times ready and willing to give to defendants the necessary license to enter upon his said premises to preserve plaintiff's said building thereon from injury, and to support the same by proper foundations,** [and so notified defendants] ; but defendants have not at any time made any request for such license, and have not in any way whatsoever shored up the walls of plaintiff's building or attempted in any way to preserve the same from injury re- sulting from said excavation. V. [As in paragraph TV of preceding form.] VI. That by reason of such excavation, the walls of the plaintiff's said building became broken [etc., as in preceding form]. VII. That by reason of the premises plaintiff has sus- tained damage in the suni of dollars. Wherefore [etc., demand for judgment]. *^ Where the owner notifies his cavation of greater depth. Foster v. neighbor that upon failure to shore Zampieri, 140 App. Div. 471, 125 up and protect his foundation and N. Y. Supp. 422, aff'd 206 N. Y. 704. wall, he will do so and charge the See, also. Wear v. Koehler, 168 App. expense to the person making the Div. 115, 153 N. Y. Supp. 773. excavation, he may recover such °' The plaintiff is not under any expense, and even if the excavation obligation to tender a license. Dor- was not made below ten feet if the rity v. Rapp, 72 N. Y. 307, 4 Abb. filed plans showed an intended ex- N. C. 292. Actions foe Nuisance 1113 1020. Against Municipality for Damages Caused . by Sewer."* [Sustained in Bradt v. City of Albany, 5 Hun (N. Y.), 591; City of Bloomington v. Costello, 65 III. App. 152; Kosmak v. Mayor, etc., of N. Y., 117 N. Y. 361.] I. [Allege defendant's corporate capacity, as in Form 55.] II. That plaintiff at the times hereinafter mentioned was, and now is, the owner of the dwelling-house and premises known as street, in said city of III. That on or about the day of > 19 , the defendant constructed a sewer leading from street through street to plaintiff's said premises, and on said date, and continuously thereafter, committed a nuisance upon plaintiff's said premises by causing the filth and water through said sewer to be discharged thereupon [flooding the same ancj filling the cellar with sewage]. IV. [State character of resulting damage, as:] That the dis- charge of water and sewage through said sewer upon plain- tiff's said premises has undermined the foundation of said house, causing the same to settle on one side, and that by reason of said accumulation of sewage and water the occupa- tion of said house and premises has become dangerous to health. ' V. That defendant has been duly notified of the condition of said premises by reason of said sewer, but no means have been taken by said defendant to relieve plaintiff from the nuisance and injury resulting. from said sewer. VI. That by reason aforesaid plaintiff has sustained dam- ages in the sum of dollars. Wherefore [etc., demand for judgment, as in Form 988]. >'* A municipality is liable for the has no interest in the premises, and, discharge of sewage upon plaintiff's in case of his death, the action is property; it is not liable, however, brought under Code Civ. Pro., § 1902. for illness or death caused by such Hughes v. City of Auburn, 161 N. Y. discharge, when the person injured 96. 1114 Abbott's Forms of Pleading 1021. Against Municipality for Negligence in Maintaining Sewer/^ I. [Allege defendant's corporate character, as in Form 55.] II. That at all the times hereinafter mentioned, the plain- tiff was the lessee of the premises known as Nos. street, in the said city of New York [which he occupied as a restaurant, wine and liquor saloon]. III. That the defendant, as such municipal corporation, had charge of the sewers laid in and under the streets of the city of New York, and that it was the duty of the defendant to use reasonable care and diligence in the management and repairs of such sewers so that the abutting owners should not be injured thereby. IV. That in disregard of said duty, the defendant so negligently and carelessly managed and maintained the sewer laid in said street that the refuse and con- tents of said sewer flowed in and upon the said premises of the plaintiff continuously for [specify period]. V. [Allege damage, setting forth special damage, if any.] Wherefore [etc., demand of judgment, as in Form 988], 1022. Against Municipality for Damages Caused by Main- tenance of Insufficient Sewer. [From complaint in Seifert v. City of Brooklyn, lOl N. Y. 136.] I. [Allege defendant's corporate capacity, as in Form 55.] II. That the plaintiff is, and for more than years last past has been, the owner of certain valuable real estate in said city of , and bounded and described as follows: [description]. III. That the defendant, the city of , acting through certain of its officers and agents, heretofore and about the years 19 to 19 , caused a certain sewer, or drainage, commonly known as [the sub-sewers, districts 9 and 10, in sewer district, or map L,] to be built or constructed °^ Adapted from complaint in Kosmak v. Mayor, etc., of N. Y., 117 N.Y.361. Actions foe Nuisance > 1115 in said city; that the said drain or sewer is so constructed and located that thereby in and through it a large amount of rain and waste water, and of material of a filthy and noxious character (which said sewer or drain was built for the pur- pose of receiving and removing) is received from the locali- ties which it drains. That in consequence of the misconstruc- tion of said sewer, caused by the neghgence, ignorance, carelessness and fault of said defendant's officers and agents, the said sewer repeatedly, during the years 19 to 19 , inclusive, while plaintiff was the owner of the aforesaid property, and more especially so as the time of rainstorms in said period, did overflow and cast its filthy contents upon and into plaintiff's premises, injuring the same and destroy- ing this plaintiff's goods and chattels in saidrpremises con- tained and kept, and that thereby, and by reason of the foul and unhealthy atmosphere caused as aforesaid, plaintif? and his family have been greatly injured in their health and comfort, and part of his said property has not been tenant- able but improductive. IV. That the said drain or sewer was constructed and built as aforesaid without any proper and sufficient means and provisions for carrying off and discharging such matter by it collected as aforesaid, and that it was so located and built, through the negligence, default and miscarriage of the officers and agents of the defendant, and specifying cer- tain respects wherein such officers and agents were negligent as aforesaid, plaintiff alleges that the said drain was built of insufficient capacity, strength and durability, and that in locating same no proper regard was had to the real high- water line, by means of all of which the said sewer was un- able to carry off the sewage into the river, as it was provided to do, and, in consequence thereof, at certain times of high pressure, the numerous overflows of said sewers occurred, causing, as aforesaid, the damage to deponent's said prop- erty. V. [// the construction was authorized under special legis- lation:] That the officers and agents of defendant having 1116 Abbott's Forms of Pleading the control and management of the building and location of said sewer, and through whose agency, negligence, default and misconduct the injury aforesaid was caused, were officers appointed under the authority of chapter of the Laws of , being an act entitled "An act in relation to sewerage and drainage in the city of ," and the acts amendatory thereof. VI. That the said defendant had notice of the said dam- age and the cause thereof, and that it has wrongfully neg- lected and refused to give any reUef in the matter whatso- e"C^er. VII. That by reason of the wrongful and negligent acts aforesaid the plaintiff has been damaged, as heretofore stated, in the sum of dollars. Wherefore [etc., demand of judgment. See Form 988]. 1023. Pollution of "Watercourse by Factory Wastes.*''' I. [Ovmership of premises by plaintiff," as in Form 988, the description showing riparian rights on the waters claimed to he polluted, as:] said premises being situate upon and along a natural stream or watercourse conunonly known, as [name]. II. That said watercourse i^, and always has been, a private stream, flowing by, over and along plaintiff's said premises; that during all the times herein mentioned de- fendant has [been the owner of and has] operated [state character of factory or mill, as:] a sulphite pulp mill and paper mill on said river above plaintiff's said premises; that diu-ing all said times defendant has willfully and wrongfully and without plaintiff's acquiescence or consent, thrown and dis- •charged into said river chemicals, resinous and other un- wholesome, unhealthy, and deleterious matters and sub- stances from its said mills; that said matters and substances ™ From complaint in Whalen v. " Owners of independent parcels Union Bag & Paper Co., 208 N. Y. all affected by the pollution may 1, where plaintiff's recovery was un- unite as plaintiffs, and may also sue held on appeal, no question as to on behalf of others similarly situated, the complaint's sufficiency being Greer v. Smith, 155 App. Div. 420, directly raised. 140 N. Y. Supp. 43. Actions for Nuisance * 1117 so discharged into said river have during all the tunes herein mentioned continuously flowed in and down said river and have polluted and defiled the waters thereof upon and along plaintiff^'s said land, and have rendered the waters of said river filthy and luxhealthy and unfit for domestic purposes, and mifit for use of hve stock, and unfit for ice and fish, and have filled the air with noisome and unhealthy vapors and stenches, and have deposited unhealthy, delete- rious and unwholesome sediments upon and have injured the grass and hay grown upon plamtiff's said lands and ren- dered them unfit for use. III. That said mills are constructed and are operated for the purpose of contniuing permanently to cast said matters and substances mto said river, and said acts constitute and will be a continumg nuisance to plaintiff, and that unless restrained said injuries will be continued in the future and will continue to do great and irreparable injury and damage to plaintiff's said premises. IV. That the acts aforesaid have continued ever since prior to the day of , 19 , and plaintiff has thereby sustained damage in the sum of dollars. Wherefore [etc., demand for injunction and damages as in Form 988]. 1024. The Same, Allegation of Injury Caused by the Acts of Many Defendants, Committed Independently of Each Other.88 I. [Describe the business and location of each defendant.] II. [Charge the wrongful act of each, as:] That the defend- ants above named are now discharging and for more than years last past have discharged, each from his, their, or its own place of business as aforesaid, into the said river [etc., as in Form 1023]. °* The allegations are taken from against the independent and unre- complaint in Warren v. Parkhurst, lated tort feasors, engaged in acts 186 N. Y. 45, where the court held which produce the common in- that the action could be maintained jury. 1118 'Abbott's Forms of Pleading III. That each defendant, upon his premises hereinbefore described, has had during all of said times and now has and maintains, drains and sluices permanently affixed into the soil, leading to the said river, for the carrying of said refuse matters, and defendants intend to and will unless restrained continue to pollute said river in manner aforesaid. IV. That the damage suffered by plaintiff from the pollu- tion of the stream by any one defendant, if there were no other sources of pollution, would be nominal, but from the concurring and continuing acts of all of the defendants as aforesaid the injury which plaintiff and his lands sustain is great, and said nuisance if continued will render said land wholly worthless for domestic and other purposes. [Demand for injunction and past damages, as in Form 988.] 1025. Against Municipality, for Pollution of Plaintiff's Pond.''^ [Adapted from Luther v. Village of Batavia, 169 App. Div. 71, 154 N. Y. Supp. 784, and Chapman v. City of Rochester; 110 N. Y. 273, 18 N. Y. State Rep. 133.] I. [Allege defendant's corporate capacity, as in Form S5.] '" II. [Allege plaintiff's ovmership and occupation of premises as a residence as in Form 988, the precedent continuing:] That about acres thereof are covered by a pond of water which plaintiff and his grantors have for a long time or- namented and improved at great expense, and kept for the culture of fish therein and the production of ice thereon [alleging also erection of an ice house, for storage of ice which plaintiff was accustomed to sell — or otherwise according to the fact]. ™ A private person may be simi- may be enjoined from operation by larly restrained, and is not justified the owner of neighboring premises, by an order of the local board of Gerow v. Village of Liberty, 106 health. See Mann v. Wiley, 51 App. App. Div. 357, 94 N. Y. Supp. Div. 169, 64 N. Y. Supp. 589, aff'd 949. 168 N. Y. 664. '" Numerous persons independently A sewage disposal plant, giving contributing to the pollution may be fortb aojdous mi offensive odors, sued together. See Form 1024. Actions for Nuisance 1119 III. That said pond was largely fed and supplied by a natural stream of water which for more than fifty years and from time immemorial has flowed from higher lands down to plaintiff's said premises, and said stream was a natural watercourse, and imtil the commission of the wrongful acts hereinafter mentioned, was a stream of clear and pure water, desirable and valuable for the purpose of supplying said pond. IV. That during several years last past, but at what par- ticular time or times plaintiff is not able now to particularly state, defendant has constructed a system of sewerage known as the sewer system along and through various streets, and has wrongfully turned and directed the outlet thereof into said stream of water, thereby making said natural water- course and stream an outlet for all the sewage, filth, night soil, and other tmwholesome matter, which is drained and carried away by the sewers in such streets. V. That by reason thereof the water in said stream has become filled with sediment, and impregnated with foul and unwholesome odors and substances; that the same have been and now are carried along by the natural flow of said stream and emptied into said pond. VI. That by reason of the premises said pond has become largely filled with said unwholesome sediment and sewage, and the waters therein have become foul and at times emit noisome and unwholesome odors and stenches, which make the occupancy of plaintiff's said dweUing uncomfortable and unhealthy; that said water has become so polluted as to destroy its usefulness for the propagation of fish and the production of ice, and plaintiff's said business as a dealer in ice has been thereby entirely ruined. VH. That defendant intends to continue said sewer system and to continue the discharge of the contents thereof as aforesaid; that such acts constitute a continuing nui- sance. VIII. That by reason of the premises plaintiff has been damaged dollars, and said wrongs and injuries in- 1120 Abbott's Forms of Pleading flicted upon him by defendant still continue and are a con- tinuing nuisance to his great injury and damage. Wherefore [etc., demand for damages and an injunction. See Form 988]. 1026. Allegation of Laying and Maintaining Private Drain Causing Injury.'^^ I. [Plaintiff's ownership or occupancy of premises injured. See Form 988.] II. [Defendant's ownership or occupancy of premises from which drain proceeds. Adapt from Form 988.] III. That on or about the day of , 19 , the defendant, being in possession of the tract of land last aforesaid, did wrongfully and maliciously excavate and lay drains from said tract of land, then and now in possession of the defendant, across the aforesaid street, extending the same to and upon the building lots of the plaintiff, heretofore described, and wrongfully and maliciously caused the same to discharge and to flow upon the building lots aforesaid of the plaintiff, and unlawfully and maliciously permitted, and does still permit, said pipe and flow of water, drainage and sewerage, to remain and continue upon plaintiff's lots, thereby rendering said lots unfit for. business purposes, to the great damage of the plaintiff. IV. [Allegation of amount of damage already suffered.] Wherefore [etc., demand of judgment for injunction and damages, as in Form 988]. 1027. Against Erector of a Dam or Embankment, Causing Overflow ''^ of Plaintiff's Premises. I. That the plaintiff is, and at the times hereinafter njen- '1 From Paddock v. Somes, 102 v. Wiley, 51 App. Div. 169, 64 N. Y. Mo. 226, 14 S. W. Rep. 746, where Supp. 589, aff'd 168 N. Y. 664. the court held that a prayer for an '^ The lower user has no right to injunction against the continuance of so construct his dam as, in times of the nuisance was properly joined with ordinary freshets, to throw the a prayer for an award of damages water back upon the premises of the already sustained. See, also, Mann user above, and if he does so, he is Actions for Nuisance 1121 tioned was, the owner in fee of certain lands in , [with the dwelling-house thereon,] described as follows: [designating the premises]. . II. That in or about the month of , 19 , the defendant wrongfully erected [or, raised], and has since wrongfully maintained,'^' a dam [or, embankment] upon his premises, adjoining the plaintiff's said land, whereby * the water was and is flowed upon plaintiff's said land, and to his damage doUarsJ* Wherefore [etc., demand of judgment, as in Form 988]. 1028. The Same, Against Both Erector and Continuer, Where the Land has been Transferred/^ [Insert after paragraph II in Form 1027:] III. That on or about the day of , 19 , the defendant [erector] conveyed said premises to the de- fendant [continuer], who, from that time ever since, has been in possession of said premises and dam and wrongfully main- tained said nuisance; that on Or about the day of liable for the damages. See McCoy separate acts have contributed to V. Danley, 20 Pa. St. 85; Casebeer the nuisance, the demand of an V. Mowry, 55 id. 419; Norway Plains • award of damages already sustained Co. V. Bradley, 52 N. H. 86; Rothery does not make the complaint objec- V. New York Rubber Co., 24 Hun tionable as multifarious. Warren v. (N. Y.), 172, 90 N. Y. 30. Parkhurst, supra. But several own- " The raising of the dam, with the ers of parcels of land may not unite consequent flooding of new area, in an action for the abatement of a gives a cause of action in itself. nuisance, and at the same time for Potter V. Sumner, 75 App. Div. 186, an award of their several amounts of 77 N. Y. Supp. 678. damage. Burghen v. Erie R. R. " If special damage has been suf- Co., 123 App. Div. 205, 108 N. Y. fered allege it, as in following forms. Supp. 311. The action is sustainable It is well settled, that in an action if the relief demanded is limited to to procure an injunction restraining the injunction. Strobel v. Kerr Salt the continuance of the nuisance, a Co., 164 N. Y. 303. court of equity may award damages '* The erector and continuer of a as an incident of the relief granted. nuisance may be joined as defendants Paddock v. Somes, 102 Mo. 226, 14 in New York, under Code Civ. Pro.,- S. W. Rep. 746; Warren v. Parkhurst, § 1661. In absence of statutory per- 186 N- Y. 45. Even where the action mission so to do, there is a misjoinder, is against several defendants, whose Hines v. Jarrett, 26 So. Car. 480. 1122 Abbott's Forms of Pleading 19 , and before this action, said defendant [con- tinuer] was duly notified by plaintiff that said dam was a nuisance and was causing injury to plaintiff, and defend- ant was requested by plaintiff to remove and abate the same.'^ Wheuefore [etc., as in Form 988]. 1029. Averment of Special Damage to Plaintiff's Land. [Conclude paragraph II in Form 1027, from the * with a statement of any special injury suffered, as thus:] whereby the plaintiff's grass, of the value of dollars, then growing on said meadow, was spoiled; that acres, of the value of dollars, have been rendered unfit for cultivation, and feet of plaintiff's fence, of the value of dollars, were washed away and lost. 1030. Allegation of Notice and Demand to Continuer of Improper Embankment. That the defendant wrongfully maintained an embank- ment, composed of coal slack, with an insufficient culvert or sluiceway thereunder, after the plaintiff had notified the defendant that the same was a nuisance and was causing damage to plaintiff, and had requested him to remove said embankment and culvert, and to properly construct or repair and maintain the same; that after said notice and request to abate said nuisance, floods came, and on account of said embankment and said culvert the waters accmnulated and washed away said coal slack and culvert." ™ In an action to abate a private " Held, a sufficient allegation of nuisance against a continuer, for notice as against the continuer. neglect to remove it, notice of its Wabash R. R. Co. v. Sanders, 58 111. existence and a demand to remove it App. 213. The form would be im- must be averred. Orvis v. Elmira, proved by changing it to directly etc., R. Co., 17 App. Div. 187, 45 allege "that on or about the N. Y. Supp. 367, aff'd 172 N. Y. day of , 19 , plaintiff noti- 656; Hubbard v. Russell, 24 Barb, fied defendant that the [structure] (N. Y.) 404; Castle v. Smith (Cal.), was a nuisance and liable to cause 36 Pac. Rep. 859. See other cases damage to plaintiff, and requested cited in note to Form 989. defendant to remove," etc. In its Actions for Nuisance 1123 1031. Against Lessee of Railroad for Continuing Insuffi- cient Sluiceway.''* [Sustained in Western, etc., R. R. Co. v. Cox, 93 Ga. 561, 20 S. E. Rep. 68.] [After alleging defendants capacity as lessee of railroad.] II. That at the time the defendant took possession of its said road and right of way, plaintiff was the owner and in possession of land [describing it], through which said road runs for nearly [three-fourths of a mile]. III. That plaintiff had and now has, on the [south] side of said road, acres of land, cleared and in cultivation, and of the value of dollars an acre. IV. That about years before defendant took possession of said road and its appurtenances, the former company operating and running said road cut a ditch on the right of way entirely through said lot, and continued the said ditch up its right of way until it intersected creek; that the effect of the said ditch so continued was, in high water, to bring the waters of said creek, or the larger part thereof, down to plaintiff's lands, at which point the ditch was too shallow and too narrow to carry off the large voliime of water accumulated therein from the creek, and it thereby overflowed his land, washing and injuring his soil, carrying away his fences, and preventing his cultivating said acres.™ V. That while this state of affairs existed, defendant went present condition, it is open to the Gordon v. Ellenville, etc., R. R. Co., criticism that it contains no direct 195 N. Y. 137. averment that defendant was noti- "An allegation that the structure fied. "is insufficient," and "unskiUfuUy '8 Public service corporations are and negligently planned," and that not liable for consequential damages in its building defendant "carelessly unless caused by misconduct, negli- and negligently" obstructed the gence or unskilKulness. The fact stream with stones, states a cause that the embankment was carried of action in negligence only, and a away in part, and plaintiff's adjoining recovery on the theory of nuisance property injured, does not show a must be reversed. Kipp v. N. Y. right of action without proof of neg- Central, etc., R. Co., 89 App. Div. ligent or improper construction. 392, 85 N. Y, Supp, 855, 1124 Abbott's Forms of Pleading into possession of the said road, right of way and appur- tenances, with knowledge of all the premises, and has kept the ditch open and continued said nuisance from the day of , 19 , up to the bringing of this action, and during that time plaintiff has been prevented by said nui- sance from making any crop on the acres, to his damage dollars. , VI. That plaintiff on or about the day of ^ 19 , gave defendant notice in writing to abate the said nuisance, but that it fails and refuses to do so. Wherefore [etc., demand for judgment, as in Form 988]. 1032. For Damage Caused by Bursting of Reservoir. [Sustained in Hoffman v. Tuolumne County Water Co., 10 Cal. 413.] I. That on or about the day of j 19 , the plaintiff was and still is the owner of [designate the property] situated at II. That theretofore defendant had erected and then was the owner of [or, was in possession of] a reservoir situated [describe location, with reference to plaintiff's property], wherein he had caused to be collected a large body of water, which would otherwise have flowed away in natural channels. III. That on or about said day of , 19 , the defendant's said reservoir, by reason of some defect in its construction, or insufficiency for the purpose for which it was constructed, or carelessness and mismanagement on the part of the said defendant, broke away, and the water therein contained flowed down upon and over plaintiff's said lands. IV. [Allege resulting damage a^ in previous forms.] Wherefore [etc., demand of judgment for damages, as in Form 988]. Actions for Nuisance 1125 1033. For Unreasonably Retaining or Diverting Water from Natural Steam.^" « I. That at all the times hereinafter mentioned, plaintiff ^^ was possessed *^ [or, if not in possession, the owner in fee] of a farm [or otherwise], situated upon brook [naming the stream], at [stating location definitely, or stating name of mill]. II. That the plaintiff then had a right to use and employ the water of said brook, and to have the same flow to and through his farm in a convenient and customary manner, according to the prior natural and usual flow of said brook, and without the hindrance of the defendant or any other person.^^ 80 In Strobel v. Kerr Salt Co., 164 N. Y. 303, the court exhaustively discusses the general rights and obli- gations of riparian owners on run- ning water. '1 Owners of separate pieces of land abutting on the same stream may unite in a single action to enjoin the common grievance. Strobel v. Kerr Salt Co., 164 N. Y. 303. But they may not unite therein claims for their separate damages. Burghen V. Erie R, R. Co., 123 App. Div. 205, 108 N. Y. Supp. 311. '^ Possession is sufficient to sup- port action. Sumner v. Tileston, 7 Pick. (Mass.) 198. *' These actions are in the nature of actions for the abatement of nuisances. Parke v. Kilman, 8 Cal. 77. For the general principles and elements thereof in New York, see Haight V. Price, 21 N. Y. 245; New York Rubber Co. v. Rothery, 107 id. 310. Every proprietor of land through which flows a natural stream of water has a right to the use of the Water flowing in its natural channel without unreasonable diminution, obstruction, or pollution. Pierson V. Speyer, 178 N. Y. 270; Strobel v. Kerr Salt Co., 164 id. 303; Porter V. Durham, 74 N. C. 767; Van Hoesen. V. Coventry, 10 Barb. (N. Y.) 618; Taylor v. Welch, 6 Or. 200; Parker V. Griswold, 17 Conn. 299. The diversion or obstruction of such watercourse is a private nuisance (TuSlumne County Water Co. v. Chapman, 8 Cal. 397), a remedy for which is afforded concurrently at law and in equity. Gardner v. Village of Newburgh, 2 Johns. Ch. (N. Y.) 161. Equity interferes on the prin- ciple of a clear and certain right to the enjoyment of the subject in question and an injurious interrup- tion of that right, which, upon just and equitable grounds, ought to be prevented. Gardner v. Village of Newburgh, 2 Johns. Ch. (N. Y.) 161; Moore v. Clear Lal<;e Water Works (Sup. Ct. Cal.), 8 West C. Rep. 332; Shively v. Hume, 10 Or. 76. It is, however, held that an action for a nuisance, caused by any obstruction or diversion of the water of a stream used for a domestic, agricultural or manufacturing pur- pose, will not lie unless the damage 1126 Abbott's Forms of Pleading III. That on or about the day of > 19 > the defendant [knowing the premises, and intending to in- jure the plaintiff] wrongfully * dug up and removed the banks of said brook above said farm, and unreasonabUy diverted and has since continued and intends to permanently continue to unreasonably consume and to divert the water thereof from running to and through plaintiff's said farm [or, has built a dam across said brook above gaid farm, and has for days stopped and still continues and in- tends to further continue to stop the water thereof from running to and through said farm.] ^* IV. That by reason of such unreasonable and improper diversion plaintiff has suffered damage the exact amount whereof he is unable to state and for which he has no redress at law, and will continue to suffer such damage unless de- fendant is restrained from continuing such diversion.*^ Wherefore [etc., demand of judgment for injunction and damages ^^ as in Form 988.] occasioned thereby be real, material and substantial. McEIroy v. Goble, 6 Ohio St. 187. Where the right to use of water rests in contract, the amount of water to which the plain- tiff was entitled should be alleged according to the fact. Wilber v. Brown, 3 Den. (N. Y.) 356. As to the sufficiency of this averment, see Twiss V. Baldwin, 9 Conn. 291; Wil- liams V. Moreland, 2 Barnw. & C. 910; Sheers v. Wood, 7 Moore, 345. If the plaintiff waS only entitled to surplus water, his complaint must allege that surplus water existed or would have existed but for the de- fendant's acts. Wilber v. Brown, 3 Den. (N. Y.) 356. But if the defendant was a wrong- doer, an averment as to the quantity of water to which the plaintiff is entitled is immaterial. McDonald v. Bear River, etc., Co., 15 Cal. 145; and see Cro. Car. 500, 575. If the complaint shows that defendant was not a trespasser, an averment that plaintiff was in possession of the land and mill without averring riparian ownership or prior appropriation of the water is insufficient. McDonald V. Bear River Mining, etc'., Co., 13 Cal. 220. '* Allegations that defendants di- verted the water and that they stopped it until their dam was full, and then discharged it, carrying down earth and stone, which rendered it useless to plaintiffs, may be united as one cause of action. Gale v. Tuolumne County Water Co., 14 Cal. 25; s. p., Hoffman v. Tuolumne County Water Co., 10 id. 413. '5 The fact that the damage sus- tained by plaintiff is only nominal is no ground for the refusal of an injunction. Amsterdam Knitting Co. V. Dean, 162 N. Y. 278. ™ If, because of public incon- Actions fob Nuisance 1127 1034. Allegation of Right by Prior Appropriation.*' That on or about the day of , 19 , and before the diversion hereinafter mentioned, plaintiff [erected a mill upon and for the operation thereof necessa- rily] appropriated all the waters of said [creek] to his own use, and from that time till the time hereinafter mentioned has continuously used the same. 1035. For Diverting Water Which Plaintiff had Theretofore Used for Purposes of Irrigation. [Sustained in Shotwell v. I)odge, 8 Wash. 337, 36 Pac. Rep. 254.] I. That the plaintiffs are the owners of a certain tract of land consisting of [description], and were in possession of the same since the day of , 19 ; that the de- fendants own, or are in possession of land adjoining the premises aforesaid of the plaintiffs; that through the land of both parties, as aforesaid, a stream has at all times flowed in a well-defined channel protected by natural banks. II. That in the year 19 , the plaintiffs built a dam across the said stream upon their lands and constructed various ditches therefrom to irrigate their lands ia connection with their farming operations in raising crops and also for the purpose of conveying the water from said stream to their dwellings and barns, to use the same for domestic purposes; that plaintiffs' said land was theretofore entirely dry and without irrigation, and was non-productive.** venience or otherwise, the injunction sometimes, to ascertain which party is refused, fee damage to the land first erected his works and began to should be awarded in an action appropriate the water. See Strobel against a defendant having a right v. Kerr Salt Co., 164 N. Y. 303, 321, of condemnation. Gray v. Village and cases cited, of Fort Plain, 105 App. Div. 215, ^It was held that no allegation 94 N. Y. Supp. 698. that plaintiff had a right to use- the " For use ia Pacific States and water was necessary against de- Territories, where the courts hold murrer. See note to preceding form, that priority of appropriation gives In New York the right of diver- right to use of the running water. sion for purposes of irrigation is It is also material in New York, recognized, but such diversion must 1128 Abbott's Forms of Pleading III. That in 19 the defendants wrongfully built a dam across the said creek on their said land, whereby they com- pletely stopped the water [or, unreasonably diverted the water to the extent of nearly the entire volume thereof] *' from flowing in its a,ccustomed channels through plaintiffs' land as it was accustomed to flow, and from flowing into and through the plaintiffs' ditches; that in connection with this said dam the defendants also, at said time, constructed a ditch that carried the water of said creek eastward over their own land where they permitted it to scatter and waste without providing any artificial channel for its return to the bed of the said creek. Wherefore [etc., demand of judgment, as in Form 988.] 1036. Interfering with Underground Percolations, through Artificial Means.'" I. [Allege plaintiff's ownership of premises, as in Form 988, and showing plaintiff's use, as:] and that plaintiff has been and is now engaged in the business of [market gardener] and using said premises for such purpose. II. [Defendant's corporate capacity, when necessary; in the precedent, a municipal corporation, as in Form 55.] III. On information and belief, that in the year defendant, without plaintiff's consent, drove a series of wells, and built a pumping station at , and has since maintained and operated, and is now operating the same in supplying water, to the extent of [several millions of gallons] to the inhabitants of defendant city, for which water de- fendant receives compensation from the users thereof; that defendant intends to continue permanently the opera- not be out of proportion to the size v. City of New York, 177 N. Y. 140, of the stream; in other words it is, and Forbell v. Same, 164 id. 522, as usual, a question of the use being where the action was held maintain- reasonable or not. See Strobel v. able, ' and a recovery for plaintiff Kerr Salt Co., 164 N. Y. 303. was affirmed. The unlawful act " See preceding note, and notes consisted in the use of artificial to Form 1033. means for sucking away the natural '" From complaints in Westphal percolations. Actions for Nuisance 1129 tion of its said pumping station in connection with said wells. IV. [Show condition before the interference began, as:] That prior to the driving of said wells and operation of said pumping station, plaintiff had sunk wells upon his said premises which supphed him with water for domestic and farming purposes; that the surface of plaintiff's premises consists of from two to three feet of rich loam, under which is sand; that such soil, in its natural condition, is saturated with water, and is very fertile and particularly adapted to the growing of garden vegetables for market. V. That the operation of defendant's wells, in connection with said pumping station, has dried up plaintiff's wells, and has sucked, and continues to suck from plaintiff's said property all the natural underground waters and percolating waters belonging to the same, and renders said soil dry and worthless for cultivation, and said property is of no other value whatsoever. VI. That the operation of defendant's said wells and pumping station is a nuisance, and unlawfully causes plain- tiff great injury for which plaintiff has no adequate remedy at law; that defendant intends to continue the operation thereof. VTI. That plaintiff has heretofore sustained damage by reason of the premises in the sum of dollars.'^ Wherefore [etc., demand for injunction and damages, as in Form 988]. "For measure of damages see Reisert u. City of N. Y., 174 N. Y.196. CHAPTER XXXV COMPLAINTS IN ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY (ejectment) [In an action to recover possession of lands, the material facts which con- stitute the cause or action, and are necessary to be alleged, are simply the ownership or seizin ' of the plaintiff of premises specifically described, that the defendant is in possession, and withholds possession from him. Adding that the defendant's possession is unlawful, and the plaintiff's title is lawful, is unnecessary.^ But it must appear on the face of the complaint that the plaintiff is out of possession, and that possession is unlawfully withheld from him. While in possession, he cannot maintain this action against another who claims posses- sion or exercises acts of ownership.' The plaintiff may allege generally that he is the owner, and need not set out the sources of his title; * but if he choose to set forth his title (and sometimes to do so may obtain admissions which narrow the issue) he must do so fully, and show facts from which title will spring; * and defendant may take issue on it, and thus confine the proof to the title alleged.' ' The plaintiff must have the legal title; an equitable title will not sup- port the action. Kelsey v. McTigue, 171 App. Div. 877, 157 N. Y. Supp. 730. ^ Church V. Hempsted, 27 App. Div. 412, 60 N. Y. Supp. 325; Halsey V. Gerdes, 17 Abb. N. C. 395; Payne V. Treadwell, 16 Cal. 220. An allega- tion of seizin or ownership is a suffi- cient allegation of fact. Gage v. Kauffman, 133 U. S. 471; Wooly v. Newcombe, 87 N. Y. 605; Abb. Brief on PI., 2d ed., p. 659. ' Krausw. Bimbamn, 200 N. Y. 130. A complaint which shows that the plaintiff is in possession, is bad on de- murrer. Taylor v. Crane, 15 How. Pr. (N. Y.) 358. See, also, Hulce v. Thompson, 9 id. 113; Budd v. Bing- ham, 18 Barb*494; Frost v. Duncan, 19 id. 560. A complaint alleging that the plaintiffs were in actual posses- sion, and that the defendants on a certain day entered and ousted the 1130 plaintiffs, and still are in possession, is sufficient. Westm.. Church v. Pres- bytery of N. Y., 211 N.,Y. 216; Boles V. Weifenback, 15 Cal. 144; Boles v. Cohen, Id. 150; Godwin v. Stebbins, 2 id. 103; Leigh Co. v. Independent Ditch Co., 8 id. 323. " Butrick v. Tilton, 141 Mass. 93, 6 N. E. Rep. 563; Ratcliff v. Stretch, 117 Ind. 526, 20 N. E. Rep. 438. * Masterson v. Townshend, 123' N. Y. 458; Burdick v. Cheesebrough, 94 App. Div. 532, 88 N. Y. Supp. 13; TheiUng v. Marshall, 140 App. Div. 134, 124 N. Y. Supp. 1066; Hunter V. WiUard, 176 App. Div. 204, 162 N. Y. Supp. 364; Castro v. Richard- son, 18 Cal. 478; Hutchinson v. McNally, 85 id. 619, 23 Pac. R. 132; Morgan v. Lake Shore R. Co., 130 Ind. 101, 28 N. E. Rep. 548. ' Consol. Ice Co. v. Mayor, 53 App. Div. 260, 65 N. Y. Supp. 912, aff'd 166 N. Y. 92; Eagan v. Delaney, 16 Cal. 85. Or, he might move to Actions of Ejectment 1131 Where defendant is a naked trespasser, a demand of possession, or notice to quit, is unnecessary.' Ejectment will not lie for an incorporeal hereditament.) ' PAGE 1037. General form; for possession and damages accruing after action be- gun „ lisi 1038. Another form; including demand for mesne rents and profits 1133 1039. ^By owner of undivided interest 1135 1040. By grantee, suing in name of grantor, because at time of convey- ance premises were adversely held 1135 1041. Setting forth plaintiff's title by deed 1136 1042. Setting forth title by devise 1137 1043. Setting forth title by descent 1137 1044. By lessor against tenant 1138 1046. Against tenant holding over after demand and notice to quit, for double damages 1139 1046. For breach of condition subsequent in defendant's deed 1139 1047. By adult, who has given a deed during infancy 1140 1048. To accomplish removal of overhead wires 1141 1049. For removal of telephone wires and poles in highway in which plaintiff owns the reversion 1142 1050. By widow, for dower 1 142 1037. General Form; for Possession Only; ' with Damages for Withholding, Accruing after Action Begun, i" [Sustained in Chism v. Smith, 210 N. Y. 198.] strike out the allegations, according v. Gerdes, 17 Abb. N. C. (N. Y.) 395; to the case of Coryell v. Cain, Id. 567. Sanders v. Leavy, 16 How. Pr. (N. Y.) ' Godwin v. Stebbins, 2 Cal. 103. 308; Walter v. Lockwood, 23 Barb. 'Chism V. Smith, 138 App. Div. (N. Y.) 228, 4 App. Pr. 307; Ensign ^5, 123 N. Y. Supp. 691. v. Sherman, 14 How. Pr. (N. Y.) 439; If ejectment is brought to recover Jones v. Mommott, 7 Utah, 340, 26 possession of a strip of land upon Pac. Rep. 925; Mitchell v. Campbell, which rests a portion of a wall, and 19 Oreg. 198, 24 Pac. Rep. 455. plaintiff obtains a judgment for As to an action by two parties possession which the sheriff is un- claiming in the alternative, see People able to enforce, no subsequent action v. Mayor, etc., of N. Y., 28 Barb, in equity will lie to compel the re- (N. Y.) 240, 8 Abb. Pr. 7. moval of the encroaching wall. As to the material facts in an action Hahl V. Sugo, 169 N. Y. 109. by the purchaser at a sheriff's sale, see » This form is also supported by Kellogg v. Kellogg, 6 Barb. (N. Y.) Payne v. Treadwell, 16 Cal. 220, a 116; Brewster v. Striker, 1 E. D. well-considered case, in which the Smith (N. Y.), 321; Townshend v. Code authorities are reviewed. To Wesson, 4 Duer (N. Y.), 342. And similar effect are Hunter v. WiUard, see Farmers' Bank of Saratoga 176 App. Div. 204, 162 N. Y. Supp. County v. Merchant, 13 How. Pr. 364; Church v. Hempsted, 27 App. (N. Y.) 10. Div. 412, 50 N. Y. Supp. 325; Halsey i" This form contains no allegation 1132 Abbott's Forms of Pleading I. That the plaintiff [was at the times hereinafter men- tioned and now] is seized in fee " [or, for life, * or other es- tate], and entitled to the immediate possession ^^ of f the fol- lowing described premises [designating the same as in a deed.^^ See next form]. II. That the defendant [unlawfully and without permission from plaintiff has entered upon said premises " and] is in possession thereof ^^ [under a claim of title thereto] and wrongfully withholds the same from plaintiff. Wherefore, the plaintiff demands judgment: and claim of damages suffered, ex- cept so far as may be inferred from the amount named in the demand for judgment. In New York no such fur- ther allegation is required under the provisions of the Code, in order to recover the damages accruing sub- sequent to the commencement of the action, but the demand for judgment should include the demand for dam- ages as in the form. Without either allegation of damage for withholding, or a demand of judgment therefor, no damages accruing since action com- menced can be allowed. Pfeffer v. Kling, 58 App. Div. 179, 68 N. Y. Supp. 641, aff'd 171 N. Y. 668; Clason V. Baldwin, 129 N. Y. 183; ano. dec, 152 N. Y. 204. But in most States the separate averment of damage is necessary, even to recover damages accruing after action commenced. See next form. " See note at the beginning of this chapter. If the plaintiff has been tricked into signing and delivering a deed under the belief that it was an instrument of another character, or if defendant claims under the deed of one mentally incompetent to make it, plaintiff may properly sue at law in ejectment under an allegation that he is the owner, and avoid the effect of the deed when offered against him. Wil- cox V. Am. Tel. & Tel. Co., 176 N. Y. 115; Smith v. Ryan, 191 N. Y. 452; Babcock v. Clark, 93 App. Div. 119, 86 N. Y. Supp. 976. Or, he may allege the deed, and its void char- acter. See Bennett v. Vender Bosch, 26 App. Div. 311, 49 N. Y. Supp. 802. "An allegation "that plaintiff is entitled to the possession" of the land, and its rents and profits, with- out any allegation showing ownership thereof, is a mere conclusion of law, and insufficient. Sheridan v. Jackson, 72 N. Y. 170; Gamer v. McCullough^ 48 Mo. 318; Brown v. Phillips, 71 Wise. 239. " If there is a mistake in the description given in the deed, a ref- ormation is necessary before the. grantee can establish title, at least against a stranger. Bailey v. Twin Lake Assoc, 91 App. Div. 500, 86 N. Y. Supp. 788. See Forms under Reformation. " Westm. Church v. Presbytery of N. Y., 211 N. Y. 216. 1* A complaint is demurrable which fails to allege that defendant is in actual possession; or that the lot is a vacant one, and defendant claims title thereto, under N. Y. Code Civ. Pro., § 1502. Sanders v. Parshall, 67 Actions of Ejectment 1133 1. For the possession of the said premises.^" 2. For dollars, the plaintiff's damages for the withholding of the same from the commencement of this action, together with his costs. 1038. Another Form; Including Demand for Mesne Rents and Profits.^'' I. That on or about the day of , 19 , [designating a day after plaintiff's title accrued, and before the defendant's entry], the plaintiff was lawfully seized and possessed, in fee simple [or, as tenant for life,* or, as tenant for the life of one M. N., or, as tenant for the term of years], of f the following described premises in county [here describe premises in question, vnth common certainty, as would be done in a deed, e. g., designating the number of the lot or township, if any, in which they are situated; if none, stating the names of the last occupants of lands ad- joining the same, if any; if there be none, stating the natural boundaries, if any; and if none, describing such premises by metes and bounds, or in some other way, so that, from such description, possession of the premises claimed may be de- livered].^^ Hun, 105, 22 N. Y. Supp. 20, aff'd to an action of ejectment. See Alt 142 N. Y. 679. v. Gray, 55 App. Div. 563, 67 N. Y. "An added demand that the de- Supp. 411. fendant railroad be compelled to re- " N. Y. Code Civ. Pro., §1511. move its tracks and be enjoined from Where the premises were described as running trains, does not change the "about fifty acres, etc.," held, that character of action. Remsen v. the description was sufficient; but, N. Y., etc., Ry. Co., Ill App. Div. if necessary, the word "about" 413, 97 N. Y. Supp. 902. might be struck out by way of amend- Nor an unnecessary demand that a ment. St. John u. Northrup, 23 Barb, conveyance be declared void, and (N. Y.) 25. Where the complaint defendant enjoined from setting gave a description which embraced up title under it. Bennett v. Vonder nothing whatever, it was held that Bosch, 26 App. Div. 311, 49 N. Y. the complaint was bad, and the de- Supp. 802. fendant might have demurred, or " An action to recover the rents have the complaint dismissed on the and profits, or the damages for with- trial, and that it was not a case for a holding, will not lie until after pos- motion to make more definite and session regained, or as an incident certain, nor for allowing the plaintiff 1134 Abbott's Forms of Pleading II. That while the plaintiff was so in possession thereof, the defendant afterwards, on or about said day of ,19 ,'' entered into said premises and ousted the plaintiff,^" and that defendant has since continued and con- tinues to unlawfully withhold from the plaintiff the posses- sion thereof. ^^ III. That the value of the use and -occupation [or of the rents and profits] ^^ of said premises since said day to proceed on the trial with a view of taking a verdict and afterwards amending. Budd v. Bingham, 18 Barb. (N. Y.) 494. Similar ruling on demurrer, where the description of the premises amounted to a straight line. Rowland v. Miller, 22 N. Y. Civ. Pro. R. 25. As to variance between the allega- tions and the proof respecting the premises, see Kellogg v. Kellogg, 6 Barb. (N. Y.) 116; Wood v. Staniels, 3 Code R. 152. A complaint in ejectment may be for separate parcels of land, if both causes of action affect all the parties, and do not require separate places of trial; but they must be separately stated. Boles v. Cohen, 15 Cal. 150. " The time of the ouster may be stated thus — [on or about]; for it is not material, especially, if no claim is made for damages. Collier v. Cor- bett, 15 Cal. 183. ™ A wrongful ouster must be di- rectly alleged. Watson v. Zimmer- man, 6 Cal. 46. Reciting it is not enough. "Under N. Y. Code Civ. Pro., §§ 1496, 1497, a demand for damages may be made in the action for the recovery of the possession, and, with- out further allegation, the court may allow recovery for all damages accruing after the commencement of the action. Clason v. Baldwin, 129 N. Y. 183. In order to entitle plain- tiff to recover for damages accruing prior to action begun, he must allege . such damages, as in paragraph III of this form. Livingston v. Tanner, 12 Barb. (N. Y.) 481; MoKinlay v. Tuttle, 42 Cal. 570. A claim to recover from the de- fendant the possession of a farm house and yard, which he had oc- cupied by plaintiff's permission, and a claim for damages for trespass upon the farm, cannot properly be joined in one cofnplaint. Hulce v. Thomp- son, 9 How. Pr. (N. Y.) 113. ^^ The claim for rents and profits which the plaintiff may set up in an action for lands (N. Y. Code Civ. Pro., §§ 1496, 1497) does not con- template the specific amounts re- ceived by the defendant while in wrongful possession, but simply a recovery of damages, as in trespass, or as upon a suggestion for mesne profits in ejectment before the Code. People V. Mayor, etc., of N. Y., 28 Barb. (N. Y.) 240, 8 Abb. Pr. 7. These damages are to be reckoned to the day of trial. Vandevoort v. Gould, 36 N. Y. 639. But the rents and profits must be shown by the complaint to be con- nected with, and arising out of, the wrongful withholding of possession. Tompkins v. White, 8 How. Pr. (N. Y.) 520. In Ohio, the demand for rents and profits is deemed a separate cause of Actions of Ejectment 1135 of > 19 . and while the plamtiff has been excluded therefrom by defendant, is dollars; that plaintiff has been damaged dollars. * Wheeefore [etc., demand of possession and damages, also including a separate demand for damages from the commence- ment of the action down to day of trial, as in preceding form].^^ 1039. By Owner of Undivided Interest.-* As in either preceding form, inserting at the f, one undivided half [or, third, or other] interest in [etc^]. [Demand of judgment for "possession of one undivided part of said premises."] 1040. By Grantee, Suing in Name of Grantor, Because at Time of Conveyance Premises were Adversely Held.^* [Under N. Y. Code Civ. Pro., § 1501.] action axid should be separately stated and numbered in the petition. McKinney v. McKinney, 8 Ohio St. 423; and see Lord v. Deering, 24 Minn. 110. The plaintiff may recover damages for a term not exceeding six years, and, in addition, the damages ac- cruing after commencement of the action. Willis v. McKinnon, 178 N. Y. 451. 2s It is held in California that dam- ages cannot be awarded unless there is judgment for possession. Locke v. Peters, 65 Cal. 161. *^The other co-tenants need not join, or be joined, where the action is against a stranger in possession. Deering v. ReiUy, 167 N. Y. 184. The complaint need not show that the other co-tenants might join. Id. If against a co-tenant, an actual ouster, or some other act amounting to an absolute denial of the plaintiff's right, must be proven. N. Y. Code Civ. Pro., § 1515. And such ouster or denial of plaintiff's right should be specifically alleged. A complaint in such an action is defective if it does not define or state the specific interest of the several co-tenants. Where the complaint, verdict and judgment all fail to define the extent of the plaintiff's interest and his ownership in the disputed premises, the judgment will be set aside. Lillianskyoldt v. Goss, 2 Utah, 292. An allegation that defendant co- tenant's possession of an undivided share is unlawful is bad. In the nature of things a lawful possession of one undivided half is not possible without being in possession of the other also in the absence of facts showing ouster. Holmes v. Williams, 16 Minn. 164, 170. But if the defendant alleges title and possession in himself that is suf- ficient to constitute an ouster within Code Civ. Pro., § 1515; Peterson v. DeBaun, 36 App. Div. 259, 55 N. Y. Supp. 249. " Does not apply to one taking 1136 Abbott's Forms of Pleading [Sustained in Carey v. Lange, 153 App. Div. 372, 138 N. Y. Supp. 555.] I. That on or about the day of , 19 , the plaintiff was the owner in fee and entitled to the imme- r diate possession of the following described property: [de- scribe as in Form 1038]. II. That on said day the plaintiff, and M., his wife, duly granted said premises to one A. B. in fee, by deed dated on said day, and duly recorded in the office of the clerk of the said county of on the day of , 19 . III. That at the time of the delivery of said conveyance to said A. B. said premises were in the actual possession of the defendant, who held or claimed to hold the same ad- versely. IV. That said defendant continues in possession thereof and wrongfully withholds said premises from plaintiff and said A. B. [Allege mesne profits due to A. B., if any, since day of his deed; see other forms.] Wherefore, plaintiff demands Judgment: 1. For the delivery of said premises to said A. B. 2. For dollars, the damages suffered by said A. B. during defendant's wrongful withholding from him. 3. For damages for wrongful withholding since action begun. 4. For the costs of this action. 1041. Setting Forth Plaintiff's Title by Deed. I. That on or about the day of , 19 , one M. N. was lawfully seized, as owner in fee simple [or otherwise], and in possession of the following described prem- ises [description as in Form 1038]. II. That on the said day, and while in such ownership and his deed under judicial sale. De- tiff." See Dever v. Haggerty, 1G9 Garmo v. Phelps, 176 N. Y. 455. N. Y. 481; Hasbrouck v. Bunce, 62 The title of the action may prop- N. Y. 475; Sheridan v. Cardwell, erly be "M. N. {grantor) suing for 145App. Div. 609, 130 N. Y. Supp. the benefit of A. B. {grantee), plain- 638. Actions of Ejectment 1137 possession, by his deed, bearing date on that day, said M. N. duly conveyed the same in fee simple [or state the estate con- veyed] to the plaintiff. III. That on or about the day of , 19 , the defendant entered upon said premises, and has since un- lawfully withheld from the plaintiff the possession thereof, to his damage dollars. IV. [Add allegation of mesne rents and profits, as in Form 1038.] Wherefore [etc., demand of judgment, as in Form 1038]. 1042. Setting Forth Title by Devise. I. [As in Form IO4I.] II. That on or about the day of , 19 , the said M. N. died, leaving a last will, wherein he devised to the plaintiff the said premises,^* which will has been duly proved and admitted to probate as a will of real estate in the office of the surrogate of the county of III and IV. [Continue as in Form IO4I .] 1043. Setting Forth Title by Descent.^' I. That one M. N. died at , on the day of , 19 ; that he was, at and before his death, seized in fee simple of [here describe the premises], and was, at the time of his death, in the possession of said premises. II. That said M. N. died intestate, leaving surviving him ^ This form of alleging a devise is sents the question of the validity of sustained by Spier v. Robinson, 9 the provision. See Masterson c. How. Pr. (N. Y.) 325. Townshend, 123 N. Y. 458; Thieling An averment that the defendant's, t>. Marshall, 140 App. Div. 134, ancestor was in his lifetime seized in 124 N. Y. Supp. 1066. fee, and in possession of, etc., suf- " From Babcock v. Clark, 93 ficiently avers the fact of title in App. Div. 119, 86 N. Y. Supp. 976, him, and a proof of grants to him is where it was held that under such admissible under it. People v. Liv- a complaint plaintiff could show ingston, 8 Barb. (N. Y.) 253, 276. that a deed from the ancestor, set If plaintiff incorporates the provi- up in defendant's answer, was ob- sion from the will he thereby pre- tained by fraud. 1138 Abbott's Foems of Pleading these plaintiffs, his only children and heirs at law,^ who are now the owners in fee of said premises.^' III. That on or about the day of , 19 > the defendant imlawfuUy entered into, and continues in possession and actual occupancy of said premises, without leave of the plaintiffs, and without any right or title thereto, and unlawfully withholds possession thereof from the plain- tiffs, to their damage dollars. IV. [As in Form 1038.] Wheeefore [etc., demand of judgment, as in Form 1038]. 1044. By Lessor Against Tenant.^". [Under N. Y. Code Civ. Pro., § 1504.] I. That on or about the day of , 19 , plaintiff was the owner in fee of, and by a written lease, made on or about the said day, leased to defendant, the premises situate, lying, and being in the county of , State of , and described as follows, to wit [describe premises as in Form 1038], for the term of years commencing on the day of , 19 , at the monthly rent of dollars, payable in advance. II. That said lease contained a condition that upon failure by defendant to pay to plaintiff the installments of rent when the same became severally due, plaintiff might re- enter said premises and retake possession thereof.'^ III. That the rent for the six months ending on the day of , 19 , has not been paid, or any part thereof. ^^ 2' If the plaintiffs are collateral " The lease must reserve to the relatives, they must allege the ex- landlord a right^of re-entry, or that haustion of prior lines of descent. upon non-payment of rent the lease Henriques v. Yale Univ., 28 App. should determine. See Jones v. Div. 354, 51 N. Y. Supp. 284. Reilly, 174 N. Y. 97, 104; Delanoy ^A present ownership should be v. Ganong, 9 N. Y. 25; Horton v. averred. Howard v. Lock (Ky.), N. Y. Central, etc., R. R. Co., 12 22 S. W. Rep. 332. Abb. N. C. (N. Y.) 30. ™ Adapted from Chanch v. Hemp- '" The New York statute requires sted, 27 App. Div. 412, 50 N. Y. six months' default. Code Civ. Supp. 325. Pro., § 1504. Actions of Ejectment 1139 IV. That the defendant wrongfully withholds possession of said premises from plaintiff. Wherefore [etc., demand of judgment, as in Form 1037]. 1045. Against Tenant Holding Over After Demand and Notice to Quit, for Double Damages. ^^ [Under N. Y. Real Property Law, § 230.] I. [AsinFormlOS?.] II. That heretofore plaintiff leased said premises to de- fendant for a term of years, which expired on the day of , 19, . III. That thereafter, and on or about the day of ,19 , plaintiff duly demanded of defendant possession of said premises, and thereupon delivered to him and left with him a written notice to quit. IV. That said defendant has wilfully held over and re- mained in possession of said premises more than thirty days frqm such service, and continues to so hold over and remain in possession. V. That the yearly value of said premises is the sum of dollars.^* Wherefore, plaintiff demands judgment: 1. For the possession of said premises. 2. For damages at the rate of double the said yearly value of said property for the time the defendant detains the same. 3. For the costs of the action. 1046. Breach of Condition Subsequent in Defendant's Deed.35 I. That on or about the day of , 19 , No demand for the rent need be '■* State any other damage in- alleged or proved. Church v. Hemp- curred, and include in demand foi- sted, 27 App. Div. 412, 50 N. Y. judgment. Supp. 325. '' From Trustees of Union College 3' A willful holding over must be v. City of N. Y., 173 N. Y. 38, where alleged; to charge an unlawful with- plaintiff recovered. See, also, Jones holding is insufficient. Barson v. v. Nichols, 42 App. Div. 515, 59 N. Y. MuUigan, 191 N. Y. 306. Supp. 565. 1140 Abbott's Forms of Pleading plaintiff was the owner in fee and in possession of the fol- lowing described premises [description]. II. That being such owner and so possessed thereof, plaintiff by deed dated on said day conveyed said premises to defendant on condition that [state condition in deed]. III. That the aforesaid condition in said deed, and upon which the same was made, has been heretofore [and now con- tinues to be] broken and disregarded; [state acts done or not done, according to requirements of condition; e. g., if the con- dition requires the use of the land for a specified purpose:] that defendant has not within a reasonable time, and at the time of the commencement of this action, had not, built or caused to be built [etc., as in condition].^^ TV. That plaintiff by reason aforesaid is now entitled to possession of said premises, and has demanded of defendant that he surrender possession thereof to plaintiff, but defend- ant has refused so to do, and wrongfully withholds posses- sion thereof from plaintiff. Wherefore [etc., demand for judgment as in FormlOS?].^^ 1047. By Adult, who has Given a Deed During Infancy.'* I. That on and prior to the day of , 19 , plaintiff was the owner in fee and entitled to the possession of the following described premises [description as in Form 1038]. II. That on said day plaintiff was an infant of the age of years. If the original grantor is deceased, form the condition is unnecessary, only his heirs at law may enforce Trustees of Union College v. City of the forfeiture on breach of condition. N. Y., supra. Fowler v. Coates, 201 N. Y. 257; " The value of the use after eom- Upington v. Corrigan, 151 id. 143. mencement of the action may be re- The right of re-entry is not assign- covered. Id. able before breach. Fowler v. Coates, ^ Disaffirmance is necessary be- supra. Except to another heir at fore action brought. See O'Donohue law. Southwick v. N. Y. Miss. Soc, v. Smith, 130 App. Div. 214, 114 151 App. Div. 116, 135 N. Y. Supp. N. Y. Supp. 536. That ejectment 392, aff'd 211 N. Y. 515. will lie, see Oneida Co. Savings Bank '' Demand that defendant per- v. Saunders, 179 App. Div. 282. Actions of Ejectment 1141 III. That on said day plaintiff made and delivered to defendant [without receiving any consideration therefor] a conveyance of said premises, purporting to convey the same in fee simple; that defendant is in possession of said premises, under claim of title resting upon said deed. IV. That on the day of ; 19 , plaintiff duly notified defendant that he disaffirmed the conveyance of said premises made as aforesaid, and duly demanded the surrender thereof by defendant to him, [and offered and tendered the return of the consideration paid plaintiff for said deed] but defendant wrongfully refused to surrender the same and wrongfully withholds possession thereof from plain- tiff. V. That plaintiff has been damaged by the withholding of possession of said property from said day of disaffirm- ance, in the sum of dollars. Wherefobe [etc., demand of judgment as in Form 1038]. 1048. To Accomplish Removal of Telephone Wire, or Other Aerial Encroachment. [Action sustained in Butler v. Frontier Telephone Co., 186 N. Y. 486.] I. [Allegation of plaintiff's ownership of premises, as in Form 1037.] II. That defendant, on or about the day of , 19 , unlawfully and without plaintiff's consent entered upon said premises, and ejected plaintiff therefrom, and stretched wires over and across said premises from [east to west] about feet from the surface of the ground, said wires being stretched across th^ entire width of said premises, and about feet from the [north- erly] h'ne thereof; that defendant is now in actual possession and occupancy of the portion of plauatiff's said premises so occupied by said wires. III. That plamtiff has been damaged dollars. Wherefore, plamtiff demands judgment that said wires be removed, and that possession of said premises be de- 1142 Abbott's Forms of Pleading livered to plaintiff, and for dollars damages, and for additional damages for withholding possession after the commencement of this action, besides the costs of this action. 1049. For Removal of Telephone Poles in Highway in which Plaintiff Owns the Reversion. '' I. [Allege ownership of premises as in Form 1037, the description including the fee to the centre of the highway.] II. That prior to the commencement of this action, and on or about the day of , 19 , defendant wrongfully and without the consent of plaintiff [or of his predecessors in title] entered upon that part of said premises lying between the centre of said highway in front of plain- tiff's said premises, and the [south] side thereof, and ex- tending [easterly and westerly] the entire width thereof, and dug holes and erected poles and strung wires thereon, and trimmed and cut down trees belonging to plaintiff growing thereon, and has ever since continued in the wrongful oc- cupation and possession of said premises. III. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment as in Form IO48]. 1050. By Widow, for Dower.^" I. That A. B., late of , was the husband of the " Action sustained on this com- tory requisites in some States. The plaint in Little v. Am. Tel. & Tel. statutes of each State must be con- Co., 96 App. Div. 559, 89 N. Y. suited. Supp. 136. This form was sustained against *" This form is not for use in New demurrer in Draper v. Draper, 11 York. A widow cannot under Code Hun (N. Y.), 616, under a former Civ. Pro., § 1499, have an action of New York statute (2 R. S. 304) ejectment to recover her dower. giving the right to bring ejectment The precedent is only for use where for dower; also by McKay v. Free- by statute the widow has been given man, 6 Or. 449. the right to bring ejectment for See Chapter LXI for complaint in dower. widow's action to have her dower It cannot be anticipated that this admeasured, form will entirely satisfy all statu- Actions of Ejectment 1143 plaintiff at, and for many years previous to, his death; that said A. B. died on or about the day of , 19 , and at said time and for many years previous thereto he was seized in fee simple [and in possession] of the fol- lowing described premises [description as in Form 1038]. II. That the plaintiff is entitled to one undivided third part thereof for her life as her dower. III. That the defendant Y. Z. is in the actual occupancy and possession of said premises, and wrongfully and un- justly withholds from plaintiff the possession of her said one-third part thereof as her dower. IV. That the defendants M. N. and 0. P. are the sole heirs at law of said A. B., and claim an estate in fee in said premises as such heirs at law. Wheeefore, the plaintiff demands judgment for the pos- session of one undivided third part of said premises for her life [against said defendant Y. Z., and that she is entitled to one undivided third part thereof for her own life against all the other defendants, and that she recover her costs of this action]. CHAPTER XXXVI COMPLAINTS IN ACTIONS FOR TRESPASS UPON REAL PROPERTY [A general averment of title or possession is sufficient. It is enough to say that plaintiff is the owner, or is in possession, without setting out the sources of his title.' And the allegation of title imports possession sufficiently to sustain ' Gage V. Kaufman, 133 U. S. 471; Wooley V. Newcorabe, 87 N. Y. 605; Daley v. St. Paul, 7 Minn. 390; Abb. Brief on Pleading, 2d ed., p. 659; Ratliff v. Stretch, 117 Ind. 526, 20 N. E. Rep. 438; Butrick v. Tilton, 141 Mass. 93, 6 N. E. Rep. 563. The action may be maintained by one in actual possession and proof of title is unnecessary. Domhoff v. Steir, Inc., 157 App. Div. 204, 141 N. Y. Supp. 825. Either possession in fact, or legal right to immediate possession, or else a right in reversion or remainder coupled with injury to the inheri- tance, is essential to the action. Alt V. Gray, 55 App. Div. 563, 67 N. Y. Supp. 411; Gardner v. Heart, 1 N. Y. 628. A remainderman or reversioner may maintain an action for injury to the inheritance not- withstanding intervening estates for life or years. N. Y. Code Civ. Pro., § 1665; Taylor v. Wright, 61 App. Div. 97, 64 N. Y. Supp. 344. The injury should be averred to be to the reversionary interest. Bobb v. Syenite Granite Co., 41 Mo. App. 642. Plaintiff must be either in actual or constructive possession. Williams V. Shade, 13 111. App. 337; Winkler V. Meister, 40 111. 349. The com- plaint must aver that the plaintiff 1144 was in possession at the time of the trespass, or was put in possession afterwards. Alt v. Gray, 65 App. Div. 563, 67 N. Y. Supp. 411; Cowen- hoven v. City of Brooklyn, 38 Barb. (N. Y.) 9; to same effect. Wood v. Lafayette, 68 N. Y. 181; McMenamy V. Cohick, 1 Mo. App. 529; Fuhrer V. Langford, 11 id. 286. A complaint in trespass not alleging title, but merely averring that the plaintiff was "entitled to the exclusive pos- session" .of the premises is an as- sumption of law and is bad. Sheridan V. Jackson, 72 N. Y. 170; Gamer !>. McCuUough, 48 Mo. 318. A com- plaint is not demurrable if it fails to allege plaintiff's possession at the time of the trespass, if the trespass alleged is one constituting a per- manent and necessary injury to the fee. Jacksonville, etc., R. Co. v. Griffin, 33 Fla. 602, 15 So. Rep. 336. A complaint alleging that the de- fendant committed certain injuries to and upon the real estate of the plaintiff, is sufficient even if it does not state that the plaintiff was in the possession, but in such case he can recover for injuries to the land only. Fitzpatrick v. Gebhart, 7 Kan. 35. If he states that he is the owner and is also in possession of the prop- erty, he may recover injuries for both the land and to his possession. Fitzpatrick v. Gebhart, 7 Kan. 35; Actions for Trespass 1145 an action for trespass upon the land, unless there is something to indicate the contrary.* The foimer technical rul,e in respect to stating the time of a trespass, and the repetitions of it, is abohshed under code procedure; and the plaintiff may allege repeated acts of trespass during a specified period, and may give evidence of other acts before that time, unless the variance has misled the defendant.' If the action is at law, damages may be awarded to the time of the commence- ment of the action; if in equity for an injunction and damages, the damages will be assessed to the day of trial. Fee damage may be awarded in equity, in lieu of an injunction, when defendant has the right of eminent domain.'' The action need not now be brought in the courts of the State wherein the land lies, but the New York courts will take jurisdiction.] ^ PAGE 1051. Ordinary form, for a single trespass 1146 1052. The same, for continuing acts of trespass, asking damages and in- junction 1147 1053. To restrain threatened trespass 1148 1054. Treble damages for cutting "timber . , 1148 1055. Allegations of special damages 1149 1056. Allegations permitting exemplary damages; for entering plaintiff's house and injuring it and his goods 1150 1057. By tenant against landlord for eviction 1151 1058. Trespass by defendant's animals 1151 1059. For trespass by raUroad company upon highway in which plaintiff has a reversionary interest 1152 1060. By abutting owner, having reversion in highway, to recover dam- ages for private use 1153 1061. For damages for destruction of shade trees in street in front of plaintiff's premises 1154 1062. To compel defendant to remove encroaching wall 1155 1063. Injury to neighboring premises from blasting 1155 and see Palmer v. Tuttle, 39 N. H. cision was reversed, in 218 N. Y. 270, 486; Vance v. Beatty, 4 Rich. 104. but on the ground that the trespass- * Gage f. Kaufman, 133 U. S. 471; ing structure (a sewer) was not Abb. Brief on PI., 2d ed., p. 659; necessarily permanent. Cowenhoven v. City of Brooklyn, See form 1055 for allegations of 38 Barb. (N. Y.) 9. special damages accompanying the ' Dubois V. Beaver, 25 N. Y. 123. trespass. * In Mott V. Lewis, 52 App. Div. ^ n. Y. Code Civ. Pro., § 982-a, 558, 65 N. Y. Supp. 31, the general added in 1913, and superseding Dodge subject of damages in this action is v. Colby, 108 N. Y. 445. The amend- ably discussed. See, also, Dietzel ment applies only to trespasses V. City of N. Y., 170 App. Div. 571, committed after it became operative. 156 N. Y. Supp. 748, where it was Jacobus o. Colgate, 217 N. Y. 235, held that the fee damage may be re- reversing 165 App. Div. 227, 150 N. covered if the trespass is of a neces- Y. Supp. 1056. sarily permanent character; this de- 1146 Abbott's Forms of Pleading PAGK 1064. Injury upon highway caused by operation on neighboring prem- ises; blasting 1156 1065. For trespass by hunter or fisherman upon posted lands 1156 1066. For treble damages for forcible entry and detainer 1157 1051. Ordinary Form; for a Single Trespass.® I. That since on or about the day of , 19 , plaintiff has been, and is [the owner and] in posses- sion '' of [designate the premises with reasonable certainty,^ e. g.], a certain farm, situate upon the highway, about miles from the town of II. That on said day * the defendant wrongfully [and with force] ^ entered into and upon plaintiff's said premises, [state injury, as], and then and there f broke down and destroyed feet of plaintiff's fence and trod down the grass and crops on said farm, to plaintiff's damage dollars.^" Wherefore [etc., demand of judgment]. " See general analysis of the action, State. N. Y. Code Civ. Pro., § ! and notes thereto, at the beginning ' Since actual force is not necessary of this chapter. to constitute a trespass upon land, ' Trespass is an injury to posses- it need not be alleged that the in- sion, and an action therefor may be jury was forcible. Darst v. Rush, maintained by any one in actual 14 Cal. 81 ; Febes v. Tiernan, 1 Mont, possession of the premises; proof of 179; Griffin v. Gilbert, 28 Conn. 493. title is unnecessary. Domhoff v. If the complaint charge a forcible Stier, Inc., 157 App. Div. 204, 141 trespass, plaintiff may, notwith- N. Y. Supp. 825. AH tenants in standing, recover nominal damages common must unite in the action. for simple trespass. Harris v. Sneeden, DePuy V. Strong, 37 N. Y. 372. 104 No. Car. 369, 10 S. E. Rep. 477. ' It is not necessary to describe But where a complaint simply al- the land by metes and bounds. leged an entry upon the premises Whitaker v. Forbes, 68 No. Car. 228. and injury to the plaintiff's prop- Plaintiff's close situated in the town erty, without charging the employ- of H. held, sufficient. Swerdferger v. ment of force, held, that the issue Hopkins, 67 Vt. 136, 31 Atl. Rep. was confined to the acts of the de- 153. For similar rulings, see MeLxsell fendant after the entry, and to the V. Feezor, 43 Ind. App. 180; Rico- damage resulting from such acts. Aspen, etc., Co. v. Enterprise Min- Turner v. McCarthy, 4 E. D. Smith ing Co., 56 Fed. Rep. 131. (N. Y.), 247. The lands may be without the "> While the ordinary measure of Actions for Trespass 1147 1052. For Continuing Acts of Trespass," Asking Damages and Injunction. [I. and II. as in preceding form to the *, continuing] and on divers other days and times between that day and the commencement of this action/^ — or, between the day of , 19 , and the day of , 19 , on many and various days — etc. [continue as in pre- ceding form]. That defendant threatens and intends to continue said unlawful acts and to further trespass upon plaintiff's lands and to cause him future damages which cannot be adequately compensated or the amount thereof es- tabUshed, and for which no adequate remedy can be had at law. ^^ Wherefore [etc., demand of judgment for injunction and dam^es]. damages is the injury to the free- hold, or the value of the use and occupation, there are cases outside of the rule, where such damages are difficult to be shown; in such case the value of the use to the trespasser may be recovered. Bunke v. N. Y. Tel. Co., 110 App.Div. 241, 97 N. Y. Supp. 66, aff'd 188 N. Y. 600 (string- ing wire on plaintiff's roof). A life tenant may recover from a stranger all the damages to the fee, and such recovery will bar an action by the remainderman. The court will properly protect the latter's rights, in the tenant's action. See Rogers v. Atl., etc., Co., 213 N. Y. 246. Only damages to the time of the commencement oj the action may be recovered even though the tres- passing structure is continuing; fu- ture damages cannot be awarded where the invasion of the land is not necessarily permanent. Dietzel v. City of N. Y., 218 N. Y. 270. " Under the allegation in this form, plaintiff may prove any num- ber of trespasses committed between the times specified. Richardson v. Northrup, 66 Barb. (N. Y.) 85. Plaintiff may even prove an anterior act if it does not appear to have misled defendant. Dubois v. Beaver, 25 N. Y. 123. " A complaint which alleged the trespasses to have been continuous from day to day during a specified time, is not demurrable because it fails to state the time when the several trespasses were committed. Alabama Midland R. Co. v. Martin, 100 Ala. 511, 14 So. Rep. 401. " Plaintiff may if he prefer being successive legal actions. Covert v. City of Brooklyn, 13 App. Div. 188, 43 N. Y. Supp. 310. Treble damages allowed by statute for destruction of timber cannot be recovered in this action. Page v. Herkimer Lumber Co., 109 App. Div. 391, 96 N. Y. Supp. 272. 1148 Abbott's Forms of Pleading 1053. To Restrain Threatened Trespass. [Sustained in Lyle v. Little, 28 App. Div. 181, 50 N. Y. Supp. 947. I. [As in Form 1051.] II. That the defendant is the owner of the premises ad- joining plaintiff on the [north]. III. That the defendant claims that part of the north wall of the plaintiff's building encroaches on the defend- ant's lot IV. That said wall is on the property of plaintiff, and plaintiff has, as he is informed and believes, the right to maintain it as it now stands, but the defendant proposes to, and will imless restrained from so doing, trespass without right, authority or due process of law, but with force and violence will enter upon plaintiff's said property and prem- ises and remove a portion of plaintiff's said wall. V. That plaintiff's said wall does not trespass upon de- fendant's lands, but stands wholly upon plaintiff's prop- erty, and defendant well knows the fact so to be. Wherefore, plaintiff demands that defendant be for- ever enjoined and restrained from in any manner inter- fering with or removing any part of the northerly wall of plaintiff's building, or interfering with plaintiff's possession thereof, and that plaintiff have such other and fvirther relief as may be just. 1054. Treble Damages for Cutting Timber." [J. and II., as in Form 1051, to f, continuing:] without " Although readily adaptible to row the claim, by bringing himself any case, this precedent is drawn within the provisos of the act. with especial reference to the New Brown v. Bristol, 1 Cow. (N. Y.) York statute (Code Civ. Pro., § 1668), 176. The damages are to be de- and is supported by Van Deusen v. termined by the value of the trees Young, 29 Barb. (N. Y.) 9; CroweU to the land on which they stand, or V. Smith, 35 Hun (N. Y.), 182. To the value of the trees as standing entitle to treble damages under trees. Clark v. Holdridge, 12 App. the statute, the complaint must Div. 615, 43 N. Y. Supp. 115; Nixon refer to the act, otherwise the de- v. Stilwell, 52 Hun, 353, 5 N. Y. fendant cannot be prepared to nar- Supp. 248, 23 N. Y. State Rep. 474; Actions for Trespass 1149 the leave of said plaintiff, who was the owner thereof, cut down [or, carry off, or, cut down and carry off] a great quan- tity of trees of the value of dollars, and girdled and otherwise despoiled other trees of the value of dollars, and said land was also damaged dollars. [That thereby under § 1668 of the Code of Civil Procedure defendant became liable to plaintiff for treble the amount of said damages, to wit, the sum of dollars.] Wherefore [demand for the treble damages]. 1065. Allegations of Special Damages. [For other injuries to person or property:] did assault and beat and severely bruise plaintiff [and kill plaintiff's dog of the value of dollars],'^ and remove and carry away [describe property] of the value of dollars, etc., to the plaintiff's damage dollars. ^^ Cruden v. Rochester R. Co., 5 Misc. 59, 27 N. Y. Supp. 114. The value of the wood is the usual measure of damage in trespass for cutting full- grown timber; where the land is denuded it is the difference in the value of the land before and after the cutting. See Disbrow v. West- chester Hardwood Co., 164 N. Y. 415. Plaintiff may still recover single damages, if he is shown not entitled to treble damages. Starkweather V. Quigley, 7 Hun, 26; Hoffman v. Kendall, 44 N. Y. State Rep. 484, 17 N. Y. Supp. 713. If the trees are on the boundary line between the lands of the parties, defendant is liable for one-half the value thereof. Dubois V. Beaver, 25 N. Y. 123. The demand for judgment should be for the augmented sum. N. Y. Code Civ. Pro., § 1668. If the action is in equity for an injunction and dam- ages, treble damages are not au- thorized. PiEkge V. Herkimer Lumber Co., 109 App. Div. 391, 96 N. Y. Supp. 272. . " Rowan v. Sussdorff, 147 App. Div. 673, 132 N. Y. Supp. 550. 1* The right to join in one count, as an incident and by way of aggra- vation of a single trespass, charges of injuries to person and personal property then and there occurring, has been denied in Gunn v. Fellows, 41 Hun (N. Y.), 257, but the better opinion is that they do not consti- tute separate causes of action re- quiring separate statement. Ellen- wood V. Marietta Chair Co., 158 U. S. 105; Whatling v. Nash, 41 Hun (N. Y.), 579; GHbert v. Pritch- ard, Id. 46; Hill v. Bartholomew, 71 Hun, 453, 24 N. Y. Supp. 944; Cans V. Hughes, 41 N. Y. State Rep. 106; 18 N. Y. Supp. 615; Mallory y. Thomas, 98 Cal. 644, 33 Pac. Rep. 757; Cook v. Redman, 45 Mo. App. 397. A complaint which alleges an unlawful and forcible breaking and entry upon land, and the taking 1150 Abbott's Forms of Pleading [For moving fence:] did take down and remove a fence standing on plaintiff's said land, and then and there erected another fence which was and is not upon the division line between land of plaintiff and defendant nor upon the line of said former fence, but is wholly upon said plaintiff's land.i^ [For casting refuse on the land:] did place and lay upon plaintiff's said land tons of gravel, and kept the same there for months, without the leave or license of plaintiff, whereby said land was greatly incumbered, and plaintiff was deprived of the use and benefit of the same during said period. 1066. Allegations Permitting Exemplary Damages; for Entering Plaintiff's Premises and Injuring His Prop- erty.^' I. [Allege plaintiff's possession of premises as owner in occupation or tenant] II." That on or about the day of , 19 , the defendant and his servants at the instigation and direc- tion of the said defendant, forcibly broke and entered [or where the entry was without force, wrongfully and wantonly and without plaintiff's consent entered] plaintiff's said dwelling-house, situated at , and broke and in- jured the walls and doors thereof [or other injury, according to the fact], and took and carried away [a table and six chairs] the property of the plaintiff, of the value of dollars down of a fence inclosing the same, where the trespass is the gist of the belonging to the plaintiff, and that action, where the injury to the per- by reason thereof one of the plaintiff's sonalty could not be proven without cows strayed from the land and was also proving the trespass. See kiUed, states merely a cause of action Jacobus v. Colgate, 217 N. Y. 235. for a trespass to land, and the alle- " Dubois v. Weaver, 25 N. Y. 123. gations respecting the death of the '' Adapted from complaint in Shel- cow do not constitute a separate don v. Baimiann, 19 App. Div. 61, cause of action, but go only to the 45 N. Y. Supp. 1016; Polley v. question of damages. Sayles v. Wilkisson, 5 N. Y. Civ. Pro. R. 135; Bemis, 57 Wis. 315. Cans v. Hughes, 41 N. Y. State Rep. But this rule will be applied only 106, 16 N. Y. Supp. 615. Actions for Trespass 1151 [or, cut, broke, defaced and injured other chairs, etc.,] and violently pushed aside and threatened plaintiff and other members of his family, to the damage of the plaintiff dollars. Wherefore [etc., demand of judgment]. 1057. By Tenant against Landlord for Trespass in Evicting Him from Leased Premises. ^^ [Action sustained in Egan v. Browne, 128 App. Div. 184, 112 N. Y. Supp. 689.] I. and II. [Allege making of lease and covenant for quiet enjoyment, as in Form 607.] III. That on or about the day of , 19 , the defendant unlavpfully evicted plaintiff from said premises and the use and enjoyment thereof [state in what manner, as] by wantonly, wilfully and maliciously depriving and cutting off from the plaintiff's said leased premises and business all the steam power and live steam absolutely necessary for carrying on plaintiff's said [laundry] business. IV. That thereby plaintiff's said [laundry] business was entirely destroyed and ruined, and plaintiff was wholly unable to secure other premises equipped so that such business could be carried on, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1068. Trespass by Defendant's Animals.^" I. [Allege plaintiff's ownership of premises. Adapt from Fm-m 1051.] II. That on said day the defendant wrongfully ^^ per- " Plaintiff may in this kind of N. W. Rep. 678], though notice of action recover for the loss of his vicious propensity to injure other ani- business. Snow v. Pulitzer, 142 mals must be alleged and proven N. Y. 263. where the gravamen is the injury to ™ Notice to defendant of the roving the plaintiff's animals and not the propensities of his animals need not trespass. Van Leuven v. Lyke, 1 N. be averred nor proven in this action Y. 515. [Tanderup v. Hansen, (So. Dak.) 58 ^^ A charge that the escape was 1152 Abbott's Forms of Pleading mitted cattle belonging to him to rove and escape from his lands [or, from the highway] ; ^^ that said cattle did wrongfully and forcibly break and enter into and upon plaintiff's said close. ^'^ [Allege damage as in previous forms.] Wherefore [etc., demand of judgment].^* 1059. For Trespass by Railroad Company, upon Highway in which Plaintiif has a Reversionary Interest.^' [Adapted from Hussner v. Brooklyn City R. Co., 96 N. Y. 18; and Spencer v. R. Co., 21 Minn. 362.]. I. [Allege ownership of abutting premises by plaintiff, in- cluding the reversionary interest, '^^ as] together with the fee also " negligentl}' permitted" is sur- plusage. Atkinson v. Mott, 102 Ind. 431, 26 N. E. Rep. 217. 22 And if the charge is that the cattle escaped from the highwa}', also show that the lands did not abut upon such highway. In Wood V. Snider, 187 X. Y. 28, the common law and statutory modi- fications upon the liability of the owner of the animals is admirably reviewed. 2' At common law the owner of cattle was liable for their trespasses upon lands whether fenced or un- fenced. 3 Blacks. Com. 211; Cooley on Torts (3d ed.), 684, 2 Cyc. 392. This rule, however, has been sub- jected to statutory revision in many, if not most, States. If the liability depends upon statute, the state- ment of facts must include all the elements involved in the statutory liability. " The owner of a trespassing dog is not liable for harm done without proof of the vicious or mischievous disposition of the animal. Van Etten V. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888. The action will not lie merely because of the trespass of a dog unaccompanied by its owner. Buchanan v. Stout, 123 App. Div. 648, 108 N. Y. Supp. 38. 2^ That this action will lie by the owner of the reversion is held in Peck V. Schenectady R. Co., 170 N. Y. 298; Adee v. Nassau El. R. Co., 72 App. Div. 404, 76 N. Y. Supp. 958, aff'd 177 N. Y. 548; Duncan v. Nassau El. R. Co., 127 App. Div. 252, 111 N. Y. Supp. 210. It has been held that trespass will not lie for an infringement of an ease- ment only, and that if plaintiff is not the owner of the reversionary interest in the street, his action for nuisance. Bernheimer v. Manhattan Ry. Co., 26 Abb. N. C. (N. Y.) 88, 13 N. Y. Supp. 913, citing 7 LawsOn's Rights & Rem,, § 3569; Cooley on Torts, 440; Uline 0. N. Y. Central, etc., R. R. Co., 101 N. Y. 98. See title Nuis- ance, and title Injunction for forms of complaints, and notes, upon actions to enjoin continuing invasions of rights of this character. "^ The court in Spencer v. R. Co:, 21 Minn. 362, considered that owner- Actions for Trespass 1153 to the center of said street, subject only to use thereof by the public as and for a public thoroughfare. II. [Allege defendant's corporate capacity, as in Forms 44, etc., and its occupation, as] and owns and operates a line of street railroad upon certain streets and avenues in said city of III. That on or about the day of , 19 , and on divers other days and times between that day and the commencement of this action, and while plaintiff was so possessed of said premises, defendant, its servants and agents, without right or authority, wrongfully and unlaw- fully entered upon that said portion of plaintiff's said prem- ises which is used as such pubUc highway, lying between and boxmded by the center line of said street on one side thereof and the front line of the building of said plaintiff, erected on said premises above described, on the other, and committed acts of trespass and injuries to said premises by running thereon daily, during said period, steam engines and cars propelled by steam to the injury of said premises, in the depreciation of the value of said building and real estate, and to the injury of the hotel business carried on by said plaintiff in his said building during all of said times, in all amounting to the sum of dollars. IV. That said acts of trespass haA^e been committed with- out the consent of the said plaintiff, and without authority of law, and that no compensation, by way of award or otherwise, has been made to the plaintiff by the defendant for the said damage to said property. Wherefore [etc., demand of judgment]. 1060. By Abutting Owner, also Owing Fee in Reversion of Highway, to Recover Damages for Private Use. [Action sustained in Gary v. Dewey, 127 App. Div. 478, 111 N. Y. Supp. 261.] ship of a reversionary interest to the of the abutting premises. It is much center of the street might be impUed safer, however, to allege such ow-ner- from an allegation of the ownership ship as in the form. 1154 Abbott's Forms of Pleading I. [As in Form 1069.] II. That on or about the day of > 19 > and continuously thereafter, defendant has wrongfully sub- jected said highway on said [easterly] side thereof and in front of plaintiff's said premises to his private use and benefit, viz. [show character of use, as:] by laying therein and maintaining a [pipe or drain running from premises owned by him] and maititained for the purpose of [show private purpose]. III. That such use of said highway imposes an unlawful burden thereon for defendant's private benefit and advan- tage, and plaiatiff has been damaged thereby in the sum of dollars. IV. [7/ injunction is asked:] That defendant threatens and intends to continue such unlawful use of said highway. Wherefore [etc., demand of judgment]. 1061. For Damages for Destruction of Shade Trees in Street in Front of Plaintiff's Premises. ^'^ I. That at the times hereinafter mentioned plaintiff was and now is the owner of premises known as [No. 200 Wash- ington Street in the City of Buffalo, N. Y.] ; that said prem- ises abut on the [east] side of said street. [7/ plaintiff owns the fee to the center, in reversion, allege as in Form 1059.] ^ II. That on or about the day of , 19 , [allege injury, showing defendant's responsibility therefor, as:] the defendant's horse chewed, girdled and thereby de- stroyed a shade tree in front of plaintiff's said premises. III. That plaintiff has been damaged by the destruction of said tree in the sum of dollars. Wherefore [etc., demand of judgment]. "" Action sustained in Adams v. aff'd 185 N. Y. 602. A municipal Syracuse Lighting Co., 137 App. contract for lighting the street Div. 449, 121 N. Y. Supp. 762; would not justify such destruction Lane v. Lamke, 53 App. Div. 395, without necessity therefor. Adama 65 N. Y. Supp. 1090. See, also, v. Syracuse Lighting Co., suyra. Marson v. City of Rochester, 112 ^ Ownership of the reversion is not App. Div. 51, 97 Ni Y. Supp. 881, essential. Cases swpra. Actions for Trespass 1155 1062. To Compel Defendant to Remove Encroaching WaU.^ I. [Allege plaintiff's ownership of premises, as in Forms 1051 or 1060.] II. That the defendant is the owner of premises im- mediately adjoining on the [west] plaintiff's said premises. III. That heretofore and prior to the day of ,19 , defendant erected a building upon his said premises, the [easterly] wall of which trespasses and en- croaches upon plaintiff's said premises to the extent of [state, as, two inches for its entire length of feet]. IV. -That plaintiff has heretofore notified defendant of such trespass and encroachment and requested its removal, but defendant continues and intends to wrongfully con- tinue the same. V. That plaintiff has no adequate remedy at law.^" VI. That plaintiff has heretofore suffered damages by reason of such trespass in the sum of dollars. Wherefore [demand of judgment of injunction, and damages]. 1063. Injury to Neighboring Premises from Blasting.^' I, [Allege plaintiff's ownership and occupation of premises, OS in Form 1051.] II. That defendant for some time prior to said day of , 19 , has been engaged in blasting upon 29 An action to compel removal of 390, aff'd 204 N. Y. 660. The court the overhang of a wall is not one held that the action did not depend affecting the title to the adjoining upon defendant's negligence in the premises so as to permit the filing of conduct of such blasting operations, a lis pendens. McManus v. Wein- and that an allegation of negligence stein, 108 App. Div. 301, 95 N. Y. in the complaint could be disregarded Supp. 724. as surplusage and did not change the '^ The sheriff under an execution theory of action. One who conducts would not undertake to remove the blasting operations upon his property portion of the wall which encroached, without negligence is not liable for See Hahl v. Sugo, 169 N. Y. 109. injuries caused merely by vibrations " From complaint in Hall Sons' of the earth and air. See Form 892, Co. V. Sundstrom & Stratton Co., for a precedent based upon negli- 138 App. Div. 548, 123 N. Y. Supp. gence in the conduct of the blasting. 1156 Abbott's Forms of Pleading premises adjacent [or, near] to plaintiff's said premises upon the [north] side thereof. III. That [on or about said day or,] beginning on or about said day and continuously thereafter for a period of days defendant has conducted suchblasting in such manner that rocks, stones, earth, and other materials and substances are thrown and projected upon plaintiff's said property, and upon and against the buildings thereon, causing the injury hereinafter set forth. IV. [Allege property damage, and any personal injury; see Forms 973-981 .] Wherefore [etc., demand for judgment]. 1064. Injury upon Highway Caused by Operations on Neighboring Premises; Blasting.'- I. That at the times hereinafter mentioned defendant was [the owner of and] engaged in blasting upon certain premises at , located upon [or, near] the highway known as. [briefly describe location of lands suf- ficiently to identify]. II. That on the day of , 19 , while plaintiff was proceeding along and upon said highway, he was struck by a stone [or, other substance] thrown from the aforesaid premises, by reason of such blasting so conducted by defendant. III. [State resulting personal and property damage, as in Forms 973-981.] Wherefore [etc., demand of Judgment]. 1065. For Trespass by Hunter or Fisherman on Posted Lands.^^ [Under N. Y. Forest, Fish and Game Law, §§ 31-32.] '^ A liability arises for such an injury ^' In Rockefeller v. Lamora, 106 to a person upon the highway, irre- App. Div. 345, 94 N. Y. Supp. 549, spective of any negligence or want of aff'd 186 N. Y. 567, the court held skill or caution on the part of the one that the owner of the lands may causing the blast. Sullivan v. Dun- recover the actual and exemplary ham, 161 N. Y. 290, from which damages provided by the statute, this precedent has been adapted. , Actions. FOE Trespass 1157 I. That at the times hereinafter mentioned plaintiff was the owner of [or, had the exclusive right to hunt and fish upon] certain lands in the Town of [briefly describe sufficiently to identify] and consisting of about acres. II. That said lands were inclosed, and portions thereof were cultivated; that plaintiff at said times maintained notices or signboards of more than one foot square, warn- ing all persons against hunting or fishing or trespassing thereon for such purpose, upon each fifty acres of said premises, and near the lot fines thereof. III. That defendant on or about the day of ,19 , unlawfully trespassed upon said lands for the purpose of taking thereon birds or other game. IV. That during such trespass defendant damaged said premises to the extent of dollars, and has by reason aforesaid become liable to plaintiff in exemplary damages in the sum of twenty-five dollars as provided by § 32 of the Forest, Fish and Game Law of the State of New York. Wherefore [etc., demand for judgment]. 1066. For Treble Damages for Forcible Entry or Detainer.^* [Sustained in Waterbury v. Deckelmann, 50 App. Div. 434, 64 N. Y. Supp. 144.] "^ I. That at the time hereinafter mentioned, the plaintiff was [the owner and] in the peaceable possession and occu- pancy ^® of a certain farm, and the dwelfing-house, barns and sheds thereon, situate at ' 19 , and the day of , 19 , and while plaintiff's said mortgage was a lien upon said premises the defendant unlawfully and fraudulently entered upon said premises and [state act of waste, as:] wrongfully cut and removed timber standing thereon of the value of dollars; that thereby the mortgage security of the plaintiff was im- paired to the amount of the value of said timber. V. That the defendant at the time of such waste well knew " The action is not strictly an title. See Rogers v. Atl., etc., Co., action for waste, since such an action 213 N. Y. 246; Morgan v. Waters, will not lie against a stranger to the supra. 1168 Abbott's Forms of Pleading of the existence of plaintiff's said mortgage, and the amount thereof, and that the same was wholly unpaid and a lien on said premises, and defendant also well knew that in com- mitting said waste he was impairing and injuring the se- curity of said mortgage and depreciating the value of said premises to such an extent that the same would be insufficient to secure plaintiff against loss of a substantial portion of the mortgage debt. VI. That defendant also then knew that said [mortgagor] was insolvent. Wherefore [demand of judgment]. 1076. For Forfeiture and Eviction on Account of Waste. ^* I-IV. [As in Form 1069; or, where the defendant is lessee, as I and 11, in Form 1067.] V. That on or about the day of , 19 , defendant committed waste on the said land by [cutting down apple trees, or otherwise specify the acts of waste. See Form 1067]. VI. That the value of defendant's said estate [or, unex- pired term] in said premises is dollars; that the in- jury thereby done to the plaintiff's said estate in said prop- erty is [more than] equal to the value of the defendant's unexpired term and dollars in excess thereof. VII. That said waste was maliciously committed. Wherefore, plaintiff demands judgment: 1. That the estate of the defendant in the said property be forfeited; 2. That defendant be evicted therefrom, and that pos- session thereof be awarded to plaintiff. 3. For dollars damages,^' and for the costs of this action. ^* This form is adapted from essential; either one is enough to McCartney v. Titsworth, 119 App. make a case for forfeiture and evic- Div. 547, 104 N. Y. Supp. 45, and tion. N. Y. Code Civ. Pro., § 1655. from the New York Code Commis- ^^ Treble the amount of the dam- sioners' Report, page 107. Par- ages to the plaintiff's reversion, agraphs VI and VII are not both McCartney v. Titsworth, supra. CHAPTER XXXVIII COMPLAINTS IN ACTIONS FOR CONVERSION [See extensive note on the measure of damages, at the end of this chapter.] PAGE I. Where dependant weongpully takes possession. 1077. Common form; for taking from plaintiff's possession and converting 1171 1078. Joint conversion by several defendants 1174 1079. For conversion of money 1174 1080. For conversion of a negotiable instrument 1175 1081. For conversion of standing timber 1177 1082. For conversion of earth or minerals 1177 1083. By assignee 1178 1084. By executor or administrator for conversion in decedent's lifetime 1179 1085. The same, for conversion after death of plaintiff's testator or intestate 1180 1086. By one having a lien which entitles him to possession 1 180 1087. Against tenant for conversion of fixtures 1181 1088. By factor, for conversion of goods in his possession 1182 1089. Against sheriff 1182 1090. Against purchaser with notice from original wrongdoer. . , . 1183 II. Where defendant rightfully obtains possession, but wrong- fully WITHHOLDS OR DISPOSES OF THE PROPERTY. 1091. General form; plaintiff the owner 1184 1092. By plaintiff, an assignee under an assignment, prior to de- mand 1185 1093. By part owner; against one converting under chattel mort- given by co-tenant 1186 1094. Against part owner 1187 1095. Against the one who has possession of goods which another has wrongfully taken from plaintiff 1188 1096. Against assignee for benefit of creditors of fraudulent buyer 1188 1097. For conversion of sand 1189 1098. For conversion of money 1190 1099. For conversion by voluntary custodian 1190 1100. Against borrower for converting the thing borrowed 1191 1169 1170 Abbott's Forms of Pleading PAGE 1101. Against borrower of note for use as collateral, who subse- quently sells it 1192 1102. Against one who obtains possession of plaintiff's property for the purpose of returning it, but who converts it 1193 1103. For conversion of goods obtained by false represents^ tions 1194 1104. For conversion of bond delivered to defendant to sell 1195 1105. Against one converting proceeds of note given him to pro- cure discount 1196 1106. By pledgor against pledgee, for conversion of collateral, after payment of loan 1197 1107. The same, after tender of amount due 1198 1108. The same, after unauthorized sale without notice, after plaintiff's default in repayment 1199 1109. The same, refusal to sell uponrequest after plaintiff's default in repayment 1200 1110. The same, where pledge was under an assignment which was absolute on its face 1200 1111. For conversion of goods sent for examination only 1201 1112. Against factor, or agent to sell, who refuses to remit proceeds of sale.,. 1202 1113. Against agent under an agreement for sale of plaintiff's prop- erty, or its return 1203 1114. The same, under agreement to purchase or return 1205 1115. Against consignee, appropriating goods shipped by mis- take 1205 1116. Against agent to sell at a price to be approved by principal for selling without approval 1206 1117. Against a purchasing agent for converting money ad- vanced , 1207 1118. Against stockbroker for conversion of securities he had agreed to carry .-. . 1208 1119. The same, another form in more detail 1210 1120. Against warehouseman by assignee of warehouse certificate 1212 1121. Against common carrier 1213 1122. Against same; after reshipment to consignor 1213 1123. Against private expressman or truckman who dehvers to wrong person 1215 1124. Against bank; misappropriation of depositor's funds by pay- ing unauthorized checks 1215 1125. Against bank which collected checks belonging to plaintiff on unauthorized or forged indorsements, and paid out pro- ceeds 1216 1126. For conversion of deposit made in trust for plaintiff 1217 1127. Conditional sale agreement; seller against buyer 1218 1128. The same, seller against transferee of buyer, or purchaser at foreclosure ; 1219 Actions for Conversion 1171 PAGE 1129. By lessor against lessee of chattel after expiration of term. 1221 1130. The same, upon breach of condition in lease 1221 1131. Against purchaser of mortgaged chattels after conversion by mortgagor 1222 1132. Against sheriff, who has attached under a writ subsequently vacated, and who then refuses to surrender 1224 1133. Against attorney, for conversion of moneys collected or re- ceived by him 1225 1134. By seller to an insolvent buyer against transferee of the bill of lading 1226 1135. For conversion of goods upon which plaintiff has a lien under foreign law , 1230 1136. By corporation against its officers or directors 1231 1137. By municipality, against one who wrongfully obtains its pub- lic moneys through misconduct of public officer 1231 1138. By assignee of borrower, against corporation, which has col- lected usurious interest for loans and renewals on pledged property; allegation that commissions charged were, in interest 1232 The measure of damages in conversion, and in trespass and replevin 1237 I. WHERE DEFENDANT WRONGFULLY TAKES POS- SESSION 1 1077. Common Form; for Taking from Plaintiff's Posses- sion and Converting. I. That on or about the day of , 19 ,^ ' The forms under this subdivision tent of that right to possession is are not appropriate, where defendant material only on the measure of rightfully came into possession of damages. Kissam v. Roberts, 6 the property. For such forms, see Bosw. (N. Y.) 154; Pope v. Tucker, post, Forms 1091-1138. 23 Ga. 484; Wheeler v. Lawson, 103 2 Plaintiff must allege title or right N. Y. 40. The right of possession of to possession, or both, as of the day a bailee holding a lien does not pre- of the conversion. Smith v. Force, elude the owner from maintaining 31 Minn. 119, 16 N. W. Rep. 704; this action against a third person Bond V. Mitchell, 3 Barb. (N. Y.) wrongfully taking the goods from 304; Sawyer v. Robertson, 11 Mont, the bailee. Either the owner or 416, 28 Pac. Rep. 456; Fredericks v. bailee may bring the action. Fitz- Trkcy, 98 Cal. 658, 33 Pac. Rep. hugh v. Wyman, 9 N. Y. 559; Neff 750. Possession of the goods alone v. Thompson, 8 Barb. (N. Y.) 213; enables plaintiff to maintain an ao- Forth v. Pursley, 82 111. 152. tion for a wrongful taking; the ex- 1172 Abbott's Forms op Pleading plaintiff was the owner,' and in possession/ of [very briefly designate the goods, ^ as thus:] 100 railroad crossties, of the value of dollars/ then at [designate place]. ' It is sufficient to allege ownership generally, without showing its source. Rockwell V. Day, 84 App. Div. 437, 82 N. Y. Supp. 993; Reed v. McRill, 41 Neb. 206, 59 N. W. Rep. 775; Malcolm v. Reilly, 89 N. Y. 156; McAllister v. Kuhn, 96 U. S. 87; Kemer v. Boardman, 39 N. Y. State Rep. 61; Heine v. Anderson, 2 Duer (N. Y.), 318; Harvey v. Mc- Adams, 32 Mich. 472. If plaintiff allege facts upon which his claim of ownership is rested, an added allegation of ownership is then a conclusion of law; the facts alleged must support the conclusion. See Savage v. City of Buffalo, 50 App. Div. 136, 63 N. Y. Supp. 941; Cornell v. Savage, 49 App. Div. 429, 63 N. Y. Supp. 540. The cases are conflicting whether a general allegation of ownership al- lows proof of any lesser title; that it does was held in Loeb v. Chur, 6 N. Y. Supp. 296; Rosenthal v. Mc- Cann, 93 Cal. 505, 29 Pac. Rep. 121; Duggan V. Wright, 157 Mass. 228, 32 N. E. Rep. 159; Miller v. Adam- son, 45 Minn. 97, 47 N. W. Rep. 452; Gorum v. Carey, 1 Abb. Pr. (N. Y.) 285; contra, Musser v. King, 40 Neb. 892, 59 N. W. Rep. 744; Kennett v. Peters, 54 Kan. 119, 37 Pac. Rep. 999. In Einstein v. Dunn, 61 App. Div. 195, 70 N. Y. Supp. 520, aff'd 171 N. Y. 648, plaintiff alleged that he was "the owner and possessor of the property by virtue of a special property therein"; he proved a pledge of the property to cover advances, and recovered. When plaintiff has chosen to al- lege the particular character of his title, he must prove it as alleged. Gregory Point Marine Co. v. SeUeck, 43 Conn. 320. * The plaintiff must show, not only a property either absolute or special in the goods, but in addition, that he was entitled to immediate pos- session. Byrne v. Weidenfeld, 113 App. Div. 451, 99 N. Y. Supp. 412. Unless both the right of property and the right of possession concur, the action wiU not Me. Thus, it does not lie in favor of a pledgor of chat- tels during the pledgee's right of possession. Jones v. RahiUy, 16 Minn. 320. An allegation of ownership in plain- tiff sufficiently imports a right of possession. Kemer v. Boardman, 39 N. Y. State Rep. 61, 14 N. Y. Supp. 787; Warrick v. Baker, 42 Mo. App. 439. Since a naked right of possession enables an action to be maintained for wrongful taking (see note 2, supra), an allegation that the plain- tiff was in possession will import a lawful possession [Sheldon v. Hoy, 11 How. Pr. (N. Y.) 11], and shows a right of action without an allegation of ownership. Yardum v. Wolff, 33 App. Div. 247, 54 N. Y. Supp. 192; Rosenthal v. McMann, 93 Cal. 505, 29 Pac. Rep. 121; Visher v. Smith, 91 Cal. 260, 27 Pac. Rep. 650. '^ The property converted need be described with reasonable certainty only. The specific identification re- quired in replevin is not necessary in conversion. Pierson v. Townsqnd, 2 Hill (N. Y.), 550; Root v. Wood- ruff, 6 id. 418. 'The averment of value is usual, Actions for Conversion 1173 II. That on said day ' defendant ^ wrongfully ' took ^° said goods from plaintiff's possession, and converted " but it is not material and not tra- versable, if the complaint contain a proper allegation of the amount of plaintiff's damages. Connoss v. Meir, 2E. D. Smith (N. Y.), 314; Richard- son V. Hall, 21 Md. 399; Brunswick, etc., Co. V. Brackett, 37 Minn. 58, 33 N. W. Rep. 214. In some juris- dictions, however, the value of each article is required. Forbes v. Moore, 32 Tex. 195; Case v. Fogg, 46 Mo. 44; contra, Root v. Woodruff, 6 Hill (N. Y.), 418. ' Variance as to date of conversion is not usually material. An amend- ment to conform to the proof may be allowed by the trial court. Reich- ard V. Hutton, 148 App. Div. 813, 133 N. Y. Supp. 44. 5 One or more members of a part- nership may be sued without joining all. Wood V. Proutman, 122 App. Div. 826, 107 N. Y. Supp. 757. If plaintiff alleges a joint conver- sion, the joint tort must be estab- lished. Black V. Strang, 167 App. Div. 149, 152 N. Y. Supp. 515. 'The use of the word "unlaw- fully," or "wrongfully," does not change the allegation of taking and conversion into a conclusion of law. Its use in a complaint in conversion has been long sanctioned; but if of no materiahty or value, it will not be allowed to vitiate, but will be considered surplusage. Tutt v. Georgia Railway Co., 28 So. Car. 396, 5 S. E. Rep. 831; Nance v. Georgia Ry. Co., 35 So. Car. 307, 14 S. E. Rep. 629. It is, however, useful in showing plaintiff's theory .of action. See Barber v. Ellingwood, 137 App. Div. 704, 122 N. Y. Supp. 369. '°A mere asportation of chattels without claim of title or any right therein is not a conversion but a trespass. Hammond v. Sullivan, 112 App. Div. 788, 99 N. Y. Supp. 472. The complaint need not set forth the facts by which the conversion was accomplished; so held in an action by committee of an insane person to recovery value of property ob- tained from the incompetent by means of a chattel mortgage secured with knowledge of the insanity. Sander v. Savage, 75 App. Div. 333, 78 N. Y. Supp. 189 (allegation merely that defendant unlawfully took from incompetent). 11 Whether the allegation of con- version to another's use, following an allegation of plaintiff's title, is a pleadable fact, is not settled. See Saratoga, etc., Co. v. Hazard, 55 Hun, 251, 7 N. Y. Supp. 844, aff'd 121 N. Y. 677; Spiegel v. Levine, 161 App. Div. 764, 147 N. Y. Supp. 78; U. S. Asphalt Co. v. Comptair Nat. D'Escompte, 166 App. Div. 64, 151 N. Y. Supp. 604; Duggan v. Wright, 157 Mass. 228; Berney v. Dre.xel, 33 Hun (N. Y.), 34, 419; Thayer v. Gile, 42 id. 269; Decker v. Mathews, 12 N. Y. 313; Nance v. Georgia Ry. Co., 35 So. Car. 307, 14 S. E. Rep. 629; McAllister v. Kuhn, 96 U. S. 87. An allegation that one defendant took property and converted it to the use of himself and the other defend- ants does not show a cause of action against the latter. McCarthy v. Heiselman, 140 App. Div. 240, 125 N. Y. Supp. 13. The aUegation of conversion is useful to characterize the action and show plaintiff's elec- tion to sue in tort. Yardum v. Wolf, 33 App. Div. 247, 54 N. Y. Supp. 192. Where the complaint showed the 1174 Abbott's Fobms of Pleading them to his own use, to plaintiff's damage doUars.^^ Whekefore [etc., demand of judgment] 1078. Joint Conversion by Several Defendants.^* [Substitute for paragraph II of Form 1077:] II. That on said day defendants wrongfully and unlawfully took said [goods] from plaintiff's possession, and converted them to their own use, to plaintiff's damage dollars. 1079. The Same, Conversion of Money.^^ That between the months of , 19 , and defendant to be the plaintiff's debtor, an allegation that defendant con- verted and appropriated the money does not change the action to conver- sion. Leach v. Smith, 27 App. Div. 290, 50 N. Y. Supp. 664, aff'd 163 N. Y. 589. It is well settled that no demand need be alleged where a tortious tak- ing is alleged. See Mayor v. Norman, 4 Ind. 352; Hardy v. Keeler, 56 111. 152; Curd v. Curd, 9 Humph. 171; Bruner v. Dyball, 42 111. 34; Hurst V. Gwennap, 2 Stark. 305; Gates v. Carnsew, 3 Car. & P. 99; Moses v. Walker, 2 Hilt. (N. Y.) 536; Davis V. Flemming, 1 McCord, 213; Bruen v. Roe, 1 Sid. 264; Pierce v. Benjamin, 31 Mass. 356; Liptrot v. Holmes, 1 Ga. 381; Sommersett v. Jarvis, 3 Brod. & B. 2; Yeager v. Wallace, 57 Pa. St. 365; Earle v. Van Buren, 7 N. J. 344; Badlam v. Tucker, 18 Mass. 389. '^ The absence of the "ad damnum" clause will not vitiate, where the complaint properly sets forth the plaintiff's ownership, the value of the property and defendant's con- version; it will be inferred that plain- tiff has been damaged to the amount of the value of the property. Ryan V. Hurley (Ind.), 21 N. E. Rep. 463. Special damages cannot be re- covered unless specially alleged, under famihar principles. As, a claim for loss arising from being pre- vented from working because of conversion of tools (Bodley v. Rey- nolds, 8 Q. B. 779); usable value (Dakin v. Elmore, 127 App. Div. 457, 111 N. Y. Supp. 519). See extensive note at the end of this chapter on the measure of damages. 1' This complaint charges a joint taking, which must be estabUshed. Black V. Strong, 167 App. Div. 149, 152 N. Y. Supp. 515. A general denial is the appropriate pleading by a defendant under which to con- trovert the j oint conversion . Id . " The form is from Gordon v. Hos- tetter, 37 N. Y. 99, where the action was sustained. See, also, McCarthy V. Heisebnan, 140 App. Div. 240, 125 N. Y. Supp. 13; Watertown Car- riage Co. V. Hall, 75 App. Div. 201, 77 N. Y. Supp. 1028, aff'd 176 N. Y. 313. In Mutual Life Ins. Co. v. Ray- mond, 118 App. Div. 828, 103 N. Y. Actions foe Conversion 1175 , 19 , at , defendant wrongfully took from plaintiff's possession certain money, the property of plain- tiff, of the amount of dollars, and has wrongfully misappropriated, embezzled and converted the same to his own use, to the damage of plaintiff dollars. Wherefore [etc., demand of judgment], 1080. For Conversion of a Negotiable Instrument.'^ [Sustained in Decker v. Matthews, 12 N. Y. 313, aflf'g 5 Sandf. 439.] I. That on or about the day of , 19 , at , the plaintiff made his promissory note, of which the following is a copy: '® [or, his promissory note dated on that day, whereby he promised to pay dollars to the order of M. N. months from date], which note was made and delivered by the plaintiff to M. N., without consideration, and for his accommodation, and upon the special agreement between the plaintiff and said M. N. [state what, as] that it should be offered by said Supp. 841, where this form was him. Hynes v. Patterson, 95 N. Y. 1; used, the conversion alleged covered Comstock v. Hier, 73 id. 269, 29 a period of thirteen years and in- Am. Rep. 142. If defendant wrong- volved various kinds of property of fully obtains possession and destroys large amount. The court held that a note or check, an action for its the complaint should be made more conversion will lie. Powell v. Powell, definite as to time, and as to whether 71 N, Y. 71; Pawson v. Miller, 66 it was claimed that the property App. Div. 12, 72 N. Y. Supp. 1011. was converted by a single act or This precedent states a cause of transaction. action sounding in tort; recovery on " Conversion would not be an proof sufficient to sustain an action appropriate remedy if the writing for money had and received could not was not of a negotiable character. be had under such a complaint. See, for example, Blumenthal v. Andrews v. Bond, 16 Barb. (N. Y.) Leroy, 82 App. Div. 535, 81 633. For a form on contract, waiv- N. Y. Supp. 528; notes to Forms ing the tort and treating defendant 1106-7. as agent to procure the discount of When a note has been diverted the note, see Form 149. from the object for which it was "In trover for a written instru- intended, an action' will lie against ment, plaintiff should at least name the person who unlawfully diverts the parties and show that it was in the same, for the coversion thereof, writing. Pierson v. Townsend, 2 or for money had and received by Hill (N. Y.), 550. 1176 Abbott's Forms of Pleading M. N. to the 0. P. Bank for discount, and the proceeds thereof, if any, should be applied by said M. N. to the pay- ment of a certain other note theretofore made by the plain- tiff for the accommodation of said M. N., dated [etc., de- scribing note], and that it should be retxirned to this plaintiff if not accepted and discoxmted by said bank. II. That said first-mentioned note was thereafter in- dorsed by said M. N. and by him offered to the 0. P. Bank for discount, which refused to discount the same, and re- turned it to the. said M. N., whereupon the plaintiff became entitled to the immediate return and possesssion thereof [or state other circumstances showing failure in the intended appropriation of the note, as the fact was]. III. That thereafter, and before the maturity of the note, the defendant W. X., without the knowledge or consent of the plaintiff or of M. N., unlawfully took said note from the possession of M. N., and delivered it to the defendant Y. Z. ; " and that the defendants thereupon wrongfully converted and disposed of it to their own use, by transferring it to a purchaser, in good faith for value, before its maturity [or, converted and disposed of it to their own use, whereby the plaintiff was compelled to pay it],^^ to the damage of the plaintiff dollars. '^ Wherefore [etc., demand of judgmeni\. " For another form, where the that the plaintiff has regained pos- conversion was the act of the payee session, before suit brought, is not a or agent, see posl, Form 1102. complete defense to an action for '* A complaint by the maker of a the conversion. Murray v. Burling, negotiable note against a person who, 10 Johns. (N. Y.) 172. It only goes before the note has any legal incep- in mitigation of damages [Reynolds tion, wrongfuUy negotiates it to, a v. Shuler, 5 Cow. (N. Y.) 323; Connah bona fide holder for value, need not v. Hale, 23 Wend. (N. Y.) 462], and aver payment. should be pleaded as a partial de- And alleging that the defendant fense under New York Code Civ. wrongfully converted and disposed of Pro., § 508; Thompson v. Halbert, it to his own use, without saying in 109 N. Y. 329, 21 Abb. N. C. 268. express terms that it had passed to '' The amount of the note is ■prima the hands of a bona fide holder, is facie the measure of damages. Blu- sufficient after verdict. Decker v. menthal v. Levy, 82 App. Div. 535, Mathews, 12 N. Y. 313. The fact 81 N. Y. Supp. 528; Pawson v. Miller, Actions for 'Conversion 1177 1081. For Conversion of Standing Timber.^" [Sustained in Halleck v. Mixer, 16 Cal. 574.] I. That plaintiff, on or about the day of 19 , at , was the owner and in possession of [briefly describe premises from which timber was cut]. II. That on said day, certain persons, to plaintiff un- known, entered upon plaintiff's said premises, without au- thority, and unlawfully cut down timber growmg thereon to the amount of about cords, of the value of dollars. III. That thereafter the defendant entered upon said premises, witlibut authority, and removed said timber so unlawfully cut. IV. That plaintiff has duly demanded of defendant the possession and return of the same, but defendant has refused, and still refuses, to deUver the same to plaintiff, ^^ and has converted and disposed of the same to his own use, to plain- tiff's damage dollars. Wherefore [etc., demand of judgment]. 1082. For Conversion of Earth, or Minerals.^^ [Sustamed in Radway v. Duffy, 79 App. Div. 116, 80 N. Y. Supp. 334.] 66 App. Div. 12, 72 N. Y. Supp. 1011, in another State, but also contained Griggs V. Day, 136 N. Y. 152; Decker allegations in trover for conversion V. Mathews, 12 N. Y. 313. The do- of lumber from such lands, it will fendant may show the worthlessness be sustained as an action for conver- of the note, as, the insolvency of the sion since the action for the trespass maker or that an action upon it is cannot be maintained for want of barred by the Statute of Limitations. jurisdiction. The New York courts . See Thompson v. Halbert, 109 N. Y. may take jurisdiction of an action 329. Such fact, it seems, would be of trespass on lands lying in another admissible under a general denial. State. N. Y. Code Civ. Pro., § 982a. but if set up must be expressly ^^ If plaintiff sustains by his proof pleaded as a partial defense. Id. the allegation of the wrongful entry, ™ See notes to Form 1082. In or even the allegation of disposal of Swift V. James (Wise), 7 N. W. Rep. the timber, the allegation of demand 287, it was held, that where a com- and refusal is superfluous, plaint in form stated a cause of action ^^ An action for conversion is the for trespass qucere clausum upon lands appropriate remedy. Thorogood v. 1178 Abbott's Foems of Pleading I. That at all the times hereinafter mentioned, the plain- tiff was owner and in possession of certain lands in [and the ores and minerals contained ia a certain mine thereon, known as the Mine]. II. That between the day of , 19 , and the day of , 19 , the defendant wrong- fully and without permission entered upon said lands of the plaintiff and raised therefrom [ores and minerals] of the plaintiff of the value of dollars, which said [ores and minerals] defendant has taken away and converted and disposed of to his own use, to plaintiff's damage . dollars.^' * Wheeefore [etc., demand of jtidgment]. 1083. By Assignee.^* I. That on or about the day of , 19 , one M. N. was the owner and in possession ^^ of [very briefly designate the goods], of the value of dollars. II. That on or about said day of , 19 , at , the defendant unlawfully and wrongfully took from said M. N.'s possession and converted said goods, and Robinson, 14 L. J. (N. S. Q. B.) 87; sary to set forth the source of his Hoy V. Smith, 49 Barb. (N. Y.) 360. title; a general averment of owner- It is no objection to the action that ship at the time of the conversion the mine was located in another is sufficient. Heine v. Anderson, 2 State. Hoy v. Smith, supra. Duer (N. Y.), 318; StaU v. Wilbur, As to ownership of ice on navi- 77 N. Y. 158. gable waters, see Hudson River Ice The fact that the conversion pre- Co. V. Brady, 158 App. Div. 142, ceded the assignment does not 142 N. Y. Supp. 819, and cases affect the right to assign, or the as- cited, signee's right to sue. Serat v. Utica, 23 No damage to the freehold may etc., R. Co., 102 N. Y. 681. be claimed in this action. It will be The assignee of one having an arti- necessary to establish an actual con- san's lien may sue for conversion if version. See Am. Un. Tel. Co. v. the article is taken from his (the Middleton, 80 N. Y. 408 (poles assignee's) possession. See Triple severed from freehold but not taken Action Spring Co. v. Goyena, 93 by defendant). Misc. 171, 156 N. Y. Supp. 1064. 2* In an action by an assignee ''* See notes to Form 1077. before the conversion, it is unneces- Actions foe Conversion 1179 disposed of the same to his own use, to the damage of said M. N. dollars.^" III. That on or about the day of > 19 , said M. N. duly assigned to the plaintiff all his right, title and interest in the said goods, as well as his claim and de- mand against the defendant for the damages for the afore- said conversion " [; that thereafter and on or about the day of , 19 , plaintiff duly demanded the said goods of defendant but defendant refused to dehver the same].^* Wherefore [etc., demand of judgment]. 1084. By Executor or Administrator, for Conversion in Decedent's Lifetime.^' I and II. [As in Form 1083.] Ill and IV. [As -in Form 61 or 6J^.] Wherefore [etc., demand of judgment]. ^ See notes to Form 1077. " The claim for damages is assign- able, and the assignee properly sues in his own name. McKee v. Judd, 12 N. Y. 622; Gradwohl v. Harris, 29 Cal. 150. A general assignment, for benefit of creditors, assigns a claim for damages for conversion of the assignor's property. McKee v. Judd, 12 N. Y. 622. Technically, all that remains to the one who was the owner of the thing converted is a claim for damages; but it seems an assignment of the thing itself would cover the claim for damages. Sherman v. Elder, 24 N. Y. 381, where the court upheld an assignment in the terms above aUeged. See other forms of allegation, Forms 23-35, pages 38-45. The consideration for the assignment is immaterial except between the parties to it. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38; Vogel V. Babcock, 1 Abb. Pr. (N. Y.) 176. An allegation of assignment -prior to the conversion is not sustained by proof of an assignment subsequent to the conversion; this is not a variance, but a failure of proof. Whittaker v. Merrill, 30 Barb. (N. Y.) 389. ^ This allegation of demand and refusal will obviate a failure of proof alluded to in the preceding note. If the conversion preceded the as- signment, the assignee may under a complaint alleging a conversion after the assignment recover upon proof of a demand and refusal to surrender. Lawrence v. Wilson, 64 App. Div. 562, 72 N. Y. Supp. 289. 29 See Reichard v. Hutton, 148 App. Div. 813, 133 N. Y. Supp. 44; Sheldon v. Hoy, 11 How. Pr. (N. Y.) 11; Halleck v. Mixer, 16 Cal. 575; Towle V. Lovet, 6 Mass. 394, 1180 Abbott's Foems of Pleading 1085. The Same, for Conversion after Death of Testator or Intestate.^" I. [As in Form 1083.] ' II and III. [As in Form 61 or 6J^.] " IV. That thereafter and on or about the day of , 19 , at , defendant wrongfully took said goods and converted and disposed of the same to his own use, to the damage of plaintiff dollars. Wherefore [etc., demand of judgment]. 1086, By one Having a Lien Which Entitles Him to Posses- sion.'^ I. That at all the times hereinafter mentioned plaintiff was, and now is, a conmaon carrier of goods for hire be- tween and [or, engaged in the business of repairing automobiles — or otherwise according to fa^t], II. That on or about the day of , 19 , one M. N. [or, some person or persons to plaintiff unknown] delivered to plaintiff [as such common carrier] at , certain [chattels] for transportation and delivery to the de- fendant at [or, for the purpose of having the same repaired]. III. That thereupon plaintiff caused said [chattels] to be transported to , [or, repaired] and in so doing earned the sum of doUars as and for its proper and reason- able charge for such transportation [or, services] ; that thereby plaintiff duly acquired a lien upon said [articles] for the amount of his said charge, viz., the sum of dollars, "> The action will lie, although the ^^ in New Haven, etc., Co. v. issuance of the letters be subsequent Campbell, 128 Mass. 104, plaintiff to the conversion. Johns v. Nolting, was allowed to add another count 29 Cal. 607. on contract (it being a matter of " The action may be brought by doubt whether the goods had been the personal representative either taken with or without plaintiff's in his individual or representative permission) and to go to the jury capacity. See Reichard v. Hutton, upon both counts. 148 App. Div. 813, 133 N. Y. Supp. 44.' Actions for Conversion 1181 and was entitled to retain possession of said goods until payment of said charge. IV. That on or about the day of , 19 , defendant, without plamtiff's permission, and without pay- ing him the amount of the said charge [for transportation], wrongfully took said [articles] from plaintiff's possession and converted the same to his own use, to the plaintiff's damage dollars. ^^ Wherefore [etc., demand of judgment]. 1087.. Against Tenant for Value of Fixtures Removed. ^^ I. That prior to the day of , 19 , de- fendant was in occupation as a tenant of plaintiff of a cer- tain [dwelling house] known as No. Street in the [City] of , and of which plaintiff was the owner. II. That on or about said day of , 19 , defendant vacated said premises and surrendered possession thereof to plaintiff; that prior to such surrender of said premises, defendant wrongfully removed and carried away from said buUding certain parts thereof, consisting of [state; or allege instead, of which a schedule is hereunto annexed marked A and made part hereof]. III. That said fixtures so wrongfully removed and carried away by defendant were the property of plaintiff, and were of the value [set forth in said schedule and aggregating the sum] of doUarfe, and that thereby plaintiff's ''An artisan's lien for repairs the covenant in the lease covering (N. Y. Lien Law, § 180) may be the surrender of the premises in good assigned, and if the goods subject condition and if alterations were to the lien are delivered to the made, to restore the premises to assignee, an action for conversion their former condition; but the can be maintained by him for their pertinency of such covenant was in wrongful taking from his possession. superseding a prior oral agreement Triple Action Spring Co. v. Goyena, permitting removal of annexations. 93 Misc. 171, 156 N. Y. Supp. Plaintiff may be required to fur- 1064. nish a bill of particulars of the quan- '^ In Stephens v. Ely, 162 N. Y. titles of numerous articles. See 79, from which the precedent is Chisolm v. Straus, 110 App. Div. adapted, the complaint also alleged 552, 97 N. Y. Supp. 258. 1182 Abbott's Forms op Pleading said building has been damaged in the sum of dollars.^'' IV. That plaintiff has duly demanded of defendant the return to him of said fixtures, but defendant has refused to return the same [and claims to be the owner thereof.] Wherefore [etc., demand of judgment\. 1088. By Factor, for Conversion of Goods in His Posses- sion.^" [Under N. Y. Lien Law, § 182.] I. That on or about the day of , 19- , one M. N. caused to be shipped and deUvered to plaintiff at the following goods [description]; that said goods were so dehvered to plaintiff for the purpose of seUing the same for account of said M. N., and that at the time of such delivery plaintiff advanced and paid to said M. N. the sum of dollars on account of the sum to be reaUzed upon said sale. [Set out any other charges which plaintiff would he entitled to make against the proceeds of sale.] II. That thereafter, and on or about the day of , 19 , and while said goods were in plaintiff's possession for the purpose aforesaid, defendant wrongfully and unlawfully took said goods from the plaintiff and con- verted them to his own use. III. That plaintiff has been damaged by reason of the premises dollars. Wherefore [etc., demand of judgment]. 1089. Against Sheriff." [Sustained in Moses v. Bowe, 35 Hun (N. Y.), 560, 21 Weekly Dig. 251.] • '5 If the building was incidentally '" That such an action may be damaged, may add an allegation of brought by one making advances its character and amount. See upon a consignment of goods, see Chisolm V. Straus, supra. Fitzhugh v. Wiman, 9 N. Y. 559. The action will lie for taking a Or, the owner may sue. Neff v. building. Sprague Nat. Bank v. Thompson, 8 Barb. (N. Y.) 213; Erie R. Co., 40 App. Div. 69, 57 Stowell v. Otis, 71 N. Y. 36. N. Y. Supp, 844, " Levy upon and sale by sherifE of Actions for Conversion 1183 I. That at the times hereinafter mentioned, defendant was [and now is] the sheriff of the county of .'* II. That on or about the day of , 19 , the defendant as such sheriff wrongfully took from plaintiff's possessioTi the following goods, viz. [description] then owned by and the property of the plaintiff, and of the value of dollars, and has wrongfully converted the same, to plaintiff's damage dollars. Wherefore [etc., demand of judgment], 1090. Against Purchaser with Notice from Original Wrong- doer.^' I. [Allege plaintiff's ownership, or right to the possession of the converted_ goods as of date of conversion, and their value, and the wrongful taking and conversion by original wrong- doer, as in preceding forms.] II. That said M. N. thereafter transferred and delivered the aforesaid [articles] to the defendant, who well knew the premises and well knew that the said [articles] had been as aforesaid wrongfully taken and carried away from plaintiff's possession by said M. N., and that they were the property of the plaintiff, but received the same from said M. N. and plaintiff's property under execution ant's character as sheriff. He may against another is of itself such an be sued, in all respects, as any other act of dominion as supports conver- individual who wrongfully interferes sion, even though the purchaser has with plaintiff's rights of property, not removed the property. HiU v. See Murphy v. Callan, 69 App. Div. Page, 108 App. Div. 71,' 95 N. Y. 413, 74 N. Y. Supp. 1009; also notes Supp. 465. to Form 769. By chattel mortgagee against sher- ^' In Barry v. Calder, 48 Hun, 449, iff, see Smith v. Smalley, 19 App. 1 N. Y. Supp. 586, 16 State Rep. 295, Div. 519, 46 N. Y. Supp. 277. 15 Civ. Pro. Rep. 14, aff'd 111 N. Y. For precedent where original taking 684, plaintiff sued both the original by sheriff was lawful, i. e., under wrongdoer and the transferee; an process then in force, but his reten- objection by the, original wrongdoer tion of the property has become to the sufficiency of the complaint, wrongful because of a subsequent as against him, because it affirm- vacatur of the process, see Form 1132. atively showed that he could not ^ While there is no objection to comply with the demand for the doing so, as above, it is not necessary return of the property, was held to make any mention of the defend- untenable, 1184 Abbott's Forms of Pleading thereby and thereafter wrongfully, converted and disposed of the same to his own use, to plaintiff's damage dol- lars. Wherefore [etc., demand of judgment]. II. WHERE DEFENDANT RIGHTFULLY OBTAINS POSSESSION, BUT WRONGFULLY WITHHOLDS OR DISPOSES OF THE PROPERTY *» 1091. General Form; Plaintiff the Owner." [Sustained in Saratoga Gas, etc., Co. v. Hazard, 55 Hun, 251, 27 N. Y. State Rep. 588, 7 N. Y. Supp. 844, aff'd, without opinion, 121 N. Y. 677.] I. That at the times hereinafter mentioned, plaintiff was the owner and entitled to the immediate possession of [ shares of the capital stock of the Com- pany] ^^ of the value of dollars II. That on or about the day of > 19 , [or on divers occasions between the day of , 19 , and the day of . ,19 ,] at the city of , the defendant, being then in possession ^' of the said stock [plaintiff duly demanded of defendant the return of the said stock but defendant refused to return the same *" Where the facts pleaded show a Under this form plaintiff cannot cause of action for money received, show that defendant had a valid lien the additional allegation "that de- but wrongfully sold the property fendant has converted the same to without notice. Moore v. Rodewald, his own use" will not affect the 142 App. Div. 741, 127 N. Y. Supp. character of the action and will be 725. disregarded and rejected as surplus- See, generally, the notes to Forms age. See Lange v. Schile, 111 App. 1077 and 1099. Div. 613, 98N. Y. Supp. 81;Segelken « Briefly indicate character of V. Meyer, 94 N. Y. 484. property. See note 3 to Form *'■ Form used in Farwell v. Boody, 1077. 112 App. Div. 493, 98 N. Y. Supp. " Where prior delivery to defend- 385, where it was held that no par- ant has not been shown, his posses- ticulars of the date when plaintiff sion should be directly averred, delivered or parted with the seou- See Barnes v. Goss, 98 App. Div. 1, rities, or when they were taken from 90 N. Y. Supp. 140. him, should be required. Actions for Conversion 1185 and] ^^ unlawfully converted *"' and disposed of the same to his own use, to plaintiff's damage dollars. ^^ Wherefore [etc., demand of judgment], 1092. By Plaintiff, an Assignee, under Assignment Prior to Demand.*^ [Adapted from Barry v. Calder, 48 Hun, 449, 1 N. Y. Supp. 586, aff'd 111 N. Y. 684. I. That on or about the day of , 19 , one M. N. was the owner of [state what, as: shares of stock of the Company, and in possession of the cer- tificate therefor;] that on said day he delivered the said [stock] to the defendants [briefly state condition of defendants' receipt, as:] under an agreement whereby defendants agreed to redeliver same to him, or his assigns, upon demand. II. That thereafter and on or about the day of , 19 , said M. N. duly assigned to plaintiff all his right, title and interest in and to said shares of stock. " Not in precedent, and excused * Where plaintiff is demanding the only because of the allegation of de- value of the chattel only, defendant fendant's disposal of the property. is not entitled to a bill of particulars See notes to form 1099. of the items of damage. Kalina v. The demand need not be alleged Am. Label Co., supra.' to have been made by plaintiff per- See extensive note on the meas- sonally or by his agent. Griswold v. ure of damages at end of this Manning, 67 App. Div. 372, 73 N. Y. chapter. Supp. 702. " The fact that the defendant A defendant who denies the de- wrongfully took possession of the mand, and claims to be without chattel prior to the assignment does knowledge of it, is entitled to a bill not affect the owner's right to assign, of particulars stating whether the nor the assignee's right to sue. Serat demand was in writing, and, if in v. Utica, etc., R. Co., 102 N. Y. 681, writing, to- have a copy of it. Kalina 6 N. E. Rep. 795. V. Am. Label Co., 146 App. Div. 718, A claim for the conversion of prop- 131 N. Y. Supp. 410. erty passes to the assignee for benj- *' See note 9 to Form 1077 as to efit of creditors. McKee v. Judd, 12 effect of an allegation that defendant N. Y. 622. For form of allegation of has, "converted" property; also, as making of general assignment and to use of words "wrongfully" and plaintiff's qualification, see Form "unlawfuUy." 31. 1186 Abbott's Forms of Pleading and all claims against the said defendants for the conver- sion and detention thereof.** III. That thereafter and on or about the day of ,19 , plaintiff duly demanded said certificate of stock of the defendants, but defendants refused to deliver the same, and have wrongfully retained and converted said stock to their own use. IV. That said stock was on or about the day of said de- mand and refusal of the value of dollars.*' Wherefoee [etc., demand of judgment]. 1093. By Part Owner; Against One Converting under Chattel Mortgage Given by Co-tenant.'''' I. That at the times hereinafter mentioned, plaintiff and one M. N. were joint owners, each of the equal undivided one- half thereof, of [one large planing machine and fixtures,] of the value of dollars, or thereabouts, and which property was situated at , in the county of II. That on or about .the day of , 19 , defendant Y. Z. took possession of said machine and fixtures, by virtue of some pretended claim or lien, by way of chattel mortgage upon the whole thereof, which the said M. N. had given him thereupon; that said M. N. had no authority in any way- to incumber, or create any lien whatever upon, this plaintiff's interest in said property, which was the one equal undivided one-half thereof. III. That said defendant, at the time aforesaid, wrong- fully and unlawfully sold and disposed of said machine, and the whole thereof, and converted the same to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. *' An assignment of the shares of ^' See general note on measure of stock or other property will carry damages at end of this chapter, with it the right of action for its '° Complaint in Gsborn v. Schenck, conversion. Rothschild v. Allen, 90 83 N. Y. 201, revised to comply with App. Div. 233, 86 N. Y. Supp. 42, court's decision. afE'd 180 N. Y. 661; Sherwood v. See notes to Form 1094. Elder, 24 N. Y. 381. Actions for Conversion 1187 1094. Against Part Owner. ^^ [From Gates v. Bowers, 169 N. Y. 14.] ^^ I. That at the times hereinafter mentioned plaintiff and the defendant, as tenants in common, were owners together of [specify property], of which the plaintiff owned [designate share, as, for instance,] an undivided one-half, and the de- fendant the other half, and that the same was in defendant's possession [or otherwise according to the fact], and was of the value of dollars. [7/ the property is divisible:] II. That on or about the day of , 19 , plaintiff demanded of the defendant a division of said prop- erty, or that he would permit plaintiff to take his half thereof; that said defendant refused to divide said property, and re- fused to deliver any part thereof to plaintiff or to permit plaintiff to take any portion thereof, and that said defend- ant has wrongfully converted [and disposed of] to his own use plaintiff's undivided [half] of said property, to plaintiff's damage dollars. [7/ the property is not divisible:] II. That on or about the day of , 19 , the defendant claimed to be the absolute owner of the whole of said [property], and then and there appropriated, con- verted and disposed of the whole of the same to his own use exclusive of the plaintiff, to the damage of plaintiff dollars.*^ Wherepore [etc., demand of judgment]. *' In order that this action will lie, '^ See, also. Stall v. WUbur, 77 the property must be alike in quality N. Y. 158; Felts v. Collins, 67 App. and value and divisible by weight or Div. 430, 73 N. Y. Supp. 796; Knope measure; or, if of indivisible chattels, v. Nunn, 151 N. Y. 506; Osborn v. there must have been a destruction Schenck, 83 N. Y. 201; Thayer v. of them by the tenant in possession, or Gile, 42 Hun (N. Y.), 268. such a hostile appropriation as to ^^ The value of plaintiff's interest exclude the co-tenant, or an actual only. Felts v. Collins, 67 App. Div. attempted sale. 430, 73 N. Y. Supp. 796. 1188 Abbott's Forms of Pleading 1095. Against the One who has Possession of Goods which Another has Wrongfully Taken from Plaintiff. I. [Allege plaintiff's ownership,"^* right to possession and value of chattels as in Form 1077.] II. That on or about the said day of , 19 , at , one M. N. wrongfully, and without possessing any right, title or interest therein or thereto, and without plaintiff's permission, took said [chattels] from the possession of the plaintiff. III. That thereafter said [chattels] came into the possession of the defendant; that before this action, to wit, on or about the day of > 19 , plaintiff duly demanded of the defendant possession of the same, but defendant re- fused to deliver the same,*"^ or any part thereof, and still unlawfully withholds and detains said [chattels] from the possession of the plaintiff, and refuses to deliver the same, or to make compensation therefor, to his damage dol- lars. Wherefore [etc., demand of judgment]. 1096. Against Assignee for Benefit of Creditors of a Fraudulent Buyer.'*" I, II, III. [As in Form 1103, except that the name of the buyer must he inserted for "defendant."] *' Allege the ownership as of the plaintiff must show defendant's bad day of the wrongful taking, adding: faith, if it appears he has taken them "and at all the times hereinafter before maturity and for a valuable mentioned." consideration. Perth Amboy Mut. '■'^ A bona fide purchaser of chattels, Loan Assoc, v. Chapman, 80 App. wrongfully taken from plaintiff, is Div. 556, 81 N. Y. Supp. 38, aff'd 178 not liable for conversion until after a N. Y. 558. demand and a refusal. Gillett v. ^ The assignee is not liable until Roberts, 57 N. Y. 28. after demand. Goodwin v. Wert- If there has been a sale by the heimer, 99 N. Y. 149; Jessop v. Miller, innocent purchaser, this excuses the 2 Abb. Ct. App. Dec. (N. Y.) 449. demand. See Ochs v. Polly, 87 App. But the rule also applies that an ac- Div. 92, 84 N. Y. Supp. 1, and cases tual disposal of the goods excuses cited. demand. See Davidson v. Donadi, \i the securities are negotiable, 2 E. D. Smith (N. Y.), 121, AcTiojfs FOR Conversion 1189 IV. [On information and belief] That thereafter, and on or about the day of , 19 , said M. N. made and executed to the defendant an assignment of all of his property, including said [chattels], in trust for the bene- fit of his creditors. V. That defendant accepted said trust, and duly qualified as such assignee, and as such took possession of the afore- said [chattels]. VI. That on or about the day of > 19 , plaintiff notified defendant that he elected to rescind said sale on the ground of said fraud, and duly demanded of de- fendant that he deliver said [chattels] to plaintiff," but de- fendant refused so to do, and has wrongfully converted and disposed of the same to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1097. For Conversion of Sand. [Action sustained in Graham v. Purcell, 126 App. Div. 407, 110 N. Y. Supp. 813.] =» I. That at the time hereinafter mentioned plaintiff was the owner of [about one hundred wagon loads of] building sand, which plaintiff on or about the day of , 19 , had placed upon premises then belonging to one M. N. at II. That said M. N., on, or about the day of ,19 , conveyed said premises to defendant, and defendant entered into possession thereof. nil That thereafter, and on or about the day of " If plaintiff received part pay- changed by being placed on the soil ment, or anything of value, allege for storage; that it was immaterial tender of repayment or return thereof whether defendant was ignorant of to the assignee; but such an offer is plaintiff's ownership and honestly not necessary in an action against the believed that he himself qwned it; fraudulent buyer. See Form 1103. that it was also immaterial that plain- ^ Held, that sand taken from its tiff trespassed when he placed the bed is a subject of conversion; that sand upon the land, for that act alone its character as personalty is not would not divest his title. 1190 Abbott's Forms of Pleading , 19 , plaintiff duly demanded of defendant pos- session of said sand, but defendant refused to permit plain- tiff to remove the same or any part thereof. [Or, that on or about the day of , 19 , defendant wrong- fully sold and disposed of said sand.] IV. That said sand, was of the value of dollars at the time of defendant's said conversion thereof. Wherefore [etc., demand for judgment]. 1098. For Conversion of Money by Fiduciary."^ That at the time of the conversion hereinafter alleged, plaintiff was the owner and entitled to the immediate pos- session of the sum of dollars in money, consisting of bills, bank notes and currency, but in what particular denominations plaintiff is unable to more particularly allege. That heretofore, and between the day of , 19 , and the commencement of this action, the defendant did wrongfully, fraudulently and unlawfully convert, mis- appropriate and embezzle said money.**" That before the commencement of this action, plaintiff duly demanded the aforesaid srnn of money of defendant, but defendant refused and still refuses to deliver the same to plaintiff, to plaintiff's damage in the sum of dol- lars, with interest from the day of said conversion, mis- appropriation and embezzlement. Wherefore [etc., demand of judgment]. 1099. For Conversion by Voluntary Custodian.^^ I. That at the times hereinafter mentioned, plaintiff was ™ From Watertown Carriage Co. v. duty respecting the money, and its Hall, 176 N. Y. 313, where it was wrongful appropriation. Spiegel v. held that the charge imported that Levine, 161 App. Div. 764, 147 N. Y. the money was in defendant's posses- Supp. 78. sion in a fiduciary capacity. ^^ If defendant was a bailee for Money is subject to a conversion. hire, the fact should be alleged, with See note to Form 1079. an allegation of tender . of storage ™ A charge of embezzlement by charges. See FOrm 1120. defendant involves both a breach of Actions for Conversion 1191 the owner [and entitled to the immediate possession] of [designate the goods; see Form 1077] of the value of dollars.*^ II. That on or about the day of , 19 , plaintiff delivered said [chattels] to defendant, and defendant agreed to return the same upon demand. III. That on or about the day of , 19 , plauatiff duly demjanded of the defendant that he return said [chattels], but defendant has neglected and refused so to do,*' and has [wrongfully] ** converted and disposed *^ of the same to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1100. Against Borrower for Converting the Thing Bor- rowed.^^ I. That on or about the day of , 19 , *^ See notes to this paragraph in Form 1077. *',The general principles settled by weight of authority on the subject of alleging demand and refusal in trover may be thus briefly stated: If the allegations show defendant a wrongdoer, whether by wrongful taking or by an overt and positive act of conversion by an unlawful sale or disposition of the property, de- mand need not be alleged. If the defendant has come lawfully into possession of property, then in order to charge him with a conversion de- mand and refusal must be alleged. MacDonnell v. Buffalo Loan, etc., Co., 193 N. Y. 92; Tompkins v. Fonda Glove Lining Co., 188 id. 261; Madison v. Gross, 54 App. Div. 129, 66 N. Y. Supp. 412; Gillett v. Roberts, 57 N. Y. 23. See, also, note on this subject to Form 1091. '* Abundant authority exists that the form states a cause of action in conversion without a characterization of defendant's act as wrongful. See, for example, Mclntyre v. Smathers, 118 App. Div. 776, 103 N. Y. Supp. 783. An occasional holding is made, however, to the effect that such an allegation is essential to show the action is not based on the breach of contract. See Williams v. Conover, 71 Misc. 310, 130 N. Y. Supp. 118. ^* An allegation that defendant has sold or disposed of the property ex- cuses an allegation of demand. Mac- Donnell V. Buffalo Loan, etc., Co., 193 N. Y. 92; Kavanaugh v. Mc- lntyre, 128 App. Div. 724, 112 N. Y. Supp. 987; Saratoga Gas Co. v. Hazard, 55 Hun, 251, 7 N. Y. Supp. 844, 27 N. Y. State Rep. 588, aff'd 121 N. Y. 677; Smith v. Garfield Bank, 64 Hun, 298, 19 N. Y. Supp. 252, aff'd 138 N. Y. 631. So does an allegation that~^ defendant has em- bezzled or misappropriated money in his possession. Spiegel v. Levine, 161 App. Div. 764, 147 N. Y. Supp. 78. ^ See Chankalian v. Powers, 89 1192 Abbott's Forms of Pleading at the instance and request of the defendant, plaintiff loaned and delivered to said defendant [briefly designate the thing; see Form 1077], which was the property of the plain- tiff, and which said [article] the defendant then and there promised to return to plaintiff on demand [or, on the , day of , 19 .] II. That said [article] was at all times herein mentioned of the value of dollars. III. That after obtaining said loan of said property said defendant wrongfully [sold and] transferred and delivered the same to persons unknown to this plaintiff.*' IV. That on or about the day of > 19 , and before the commencement of this action, the plaintiff at duly demanded of said defendant that he return said {article], but defendant refused to return the same [or, if return in a specified time was agreed, that after the said day of , 19 , had passed and before the commence- ment of this action, plaintiff duly demanded the return of said property but defendant refused to return the same], and has converted and disposed of the same to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment], 1101. Against Borrower of Note for Use as Collateral, who Subsequently Sells it. [Sustained in Knipper «;. Blumenthal, 107 Mo. 665, 18 S. W. Rep. 23.] "« I. That on or about the day of , 19 , one M. N. executed and delivered to plaintiff his promissory note [description; see Form 1077]. II. That on or about said day, the defendant requested plaintiff to loan him said note, for the purpose of using it as App. Div. 395, 85 N. Y. Supp. 753; ^ The court held that no allegation Logan V. Fidelity Phoenix Ins. Co., 161 of demand and refusal was necessary, App. Div. 404, 146 N. Y. Supp. 678. in addition to showing an unauthor- " If such disposition can be estab- ized disposition of the note, lished it will dispense with the allega- See notes to Form 1080. tion and proof of demand and refusal. Actions tor Conversion 1193 collateral security for the benefit of said defendant; that in pursuance of such request, and upon defendant's promise to return the same, plaintiff delivered said note to him for such purpose. III. That thereafter said defendant wrongfully sold and disposed of the said note, and thereby converted the same to his own use. IV. That said note was paid in full by said M. N. upon the date of its maturity; [that said defendant has embezzled "'-' and wrongfully appropriated the proceeds thereof so as aforesaid received by him, to wit, the sum of dollars,] ™ and that by reason of the premises plaintiff has - been damaged in the sum of dollars. Wherefore [etc., demand of judgment]. 1102. Against One who Obtains Possession of Plaintiff's Property for the Purpose of Returning it, but who Con- verts it.'^ I. That at , and on or about the day of , 19 , plaintiff gave to defendant his promissory note payable to defendant's order, for dollars, pay- able montlis thereafter, in consideration of goods sold and delivered. II. That on or about the day of , 19 , and shortly before said note became due, plaintiff made another note, dated on the day of , 19 , but in all other respects a duplicate of the first note, and sent it to the defendant, with the request that he should in- dorse it and have it discounted, and remit the proceeds, less any reasonable charges for commissions and discount, to "'This sufficiently shows a con- be omitted, and the recovery sought version of money received in a fidu- for the value of the note without ciary capacity. Spiegel v. Levine, regard to the amount defendant has 161 App. Div. 764, 147 N. Y. Supp. received for it. See Form 1106. 78. '1 Complaint in Moffatt v. Fulton, ™ Unless the amount received by 132 N. Y. 507, 44 N. Y. State Rep. defendant was the entire value of the 853, revised so as to show clearly note, this bracketed allegation should that plaintiff is bringing conversion. 1194 Abbott's Forms of Pleading plaintiff immediately, so that therewith he might pay the said first note so about to become due, and to use the pro- ceeds of said note for no other purpose whatsoever. III. That the defendant thereupon informed plaintiff that he could not have the said note discounted, but, if the plain- tiff would send him ia its place his note for a less amount, paying a portion of the indebtedness represented by the said first note he, defendant, would immediately have the same discounted, and remit the proceeds for the purpose above described; that said defeijidant requested plaintiff to leave with him said second note, and represented that he would inclose the same on that day to the plaintiff in a per- sonal letter" explaining the facts, and use said note for no other purpose. IV. That, trusting solely to the honesty and integrity of said defendant, plaintiff left said note with him, for the purpose of having it returned immediately to the plaintiff, and for no other purpose. V. That defendant did not return the said second note, but on information and beUef plaintiff alleges that defendant wrongfully procured the same to be sold or discounted through a broker to an innocent holder, aftd on or about the ' day of , 19 , received the proceeds of said note, less dollars, deducted for commission and dis- count. VI. That defendant wrongfully used said proceeds in his own business, and refused to pay any part thereof to the plaintiff, upon plaintiff's demand, but wrongfully and im- lawfuUy converted and disposed of said note, as well as the proceeds thereof, to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1103. For Conversion of Goods Obtained by False Repre- sentations. [From Douglass v. Scott, 130 App. Div. 322, 114 N. Y. Supp. 470.] Actions for Conversion 1195 I. That on or 'about the day of , 19 , at , defendant in order to induce plaintiff to sell the goods hereinafter mentioned, falsely and fraudulently represented to plaintiff [state what, as:\ that he, defendant, was the agent for one M. N. and was negotiating for such goods as such agent. II. That plaintiff reUed upon said representation and was thereby induced to deUver to defendant [specify goods] of the value of dollars; that defendant then paid on aqcount to plaintiff the sum of dollars." III. That said representation was false and was known to defendant to be false when made by him, [and was so made by defendant vidth intent to deceive and defraud plaintiff]." IV. That defendant having so obtained possession of said [goods] unlawfully converted and disposed thereof to his own use, to plaintiff's damage dollars." 1104. For Conversion of Bond Delivered to Defendant to SeU.^5 ■ I. That on or about the day of , 19 , plaintiff was the owner and in possession of [specify security briefly, as thus] five first mortgage bonds of the Railroad Company, of the issue of , 19 , for the sum of one thousand dollars each, with all the coupons then not matured attached thereto, [and payable to bearer] ; that on said day plaintiff delivered said bonds to defendant, as his agent, for the purpose and upon the agreement that de- fendant would sell the same at a price satisfactory to the plaintiff [or, at the then market price — or, at not less than " Unnecessary to tender back this goods have been disposed of. See payment. Case supra. note to Form 1099. " Wrongful intent is not an essen- " Complaint sustained in Bradley tial element in this action. Case v. Fanshawe, 3 How. Pr. (N. S.) 75 supra. ' (N. Y.), notwithstanding there was '* Allege demand and refusal in the no express allegation that the bonds absence of an allegation that the had not been sold, such as is here in- serted in bracket. 1196 Abbott's Forms of Pleading dollars each — or, otherwise according to actual di- rection]; that the proceeds of, sale, when received, were to be by defendant immediately deUvered to this plaintiff, and said bonds if not so sold were to be returned upon plaintiff's demand. II. That before the commencement of this action [and prior to any sale thereof by defendant] plaintiff duly de- manded ''^ of defendant the return of said bonds [or, if sale might have been made previously^ duly demanded from de- fendant that he return the said bonds, or account for the sale and proceeds thereof, if already sold for plaintiff's account]; but defendant has refused to return said bonds, or any of them [or to account for any sale thereof], but has wrongfully converted said bonds and coupons, and disposed of the same and the proceeds thereof to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1105. Against One Converting Proceeds of Note Given Him to Procure Discount. [Sustained in Spiegel v. Levine, 161 App. Div. 764, 147 N. Y. Supp. 78.] I. That at on or about the day of ,19 , the plaintiff made his promissory note, dated the day of , 19 , and payable to the order of , the defendant, for the sum of dollars, payable months after its date, and payable at the Bank in the city of II. That said note was delivered to the said defendant without consideration from him, but for the accommoda- tion of this plaintiff, and under an agreement between the said plaintiff and defendant whereby the defendant was to procure the discount of the said note for and on account of ™ Where defendant's possession demand is a necessary condition was not tortious, and an actual sale precedent to the maintenance of the without authority is not charged, action. Pease v. Smith, 61 N. Y. 477. Actions for Conversion 1197 the said plaintiff, and to pay over the proceeds thereof to plaintiff. III. On information and belief, that almost immediately thereafter, and without the knowledge of this plaintiff, the defendant procured the said note to be discounted and re- ceived as the proceeds thereof the sum of dollars, which said sum the said defendant has embezzled" and has wrongfully converted to his own use, and has not paid over to the plaintiff any part thereof, to plaintiff's damage in the sum of dollars. Wherefore [etc., demand of judgment]. 1106. By Pledgor- against Pledgee; '* for Conversion of Collateral, after Payment of Loan.^' [Sustained by Roberts v. Burdell, 15 Abb. Pr. N. S. (N. Y.) 177.] I. That at the times hereinafter mentioned, the plaintiff was the owner and in possession of one hundred shares of stock of the Company [or otherwise describe security; see Forms 1101, 1104-, 1110]; which said [shares of stock] were on the day of , , 19 , [the date of the conver- sion] ^ of the value of dollars. II. That on or about the day of , 19 , plaintiff obtained from the defendant a loan of dol- " This is a pleadable fact, amount- has been held that the action must ing to a charge of fraudulent ap- be brought for the conversion of the propriation of plaintiff's propertj'. certificate which represents the stock. Spiegel V. Levine, supra. Neiler v. Kehly, 69 Pa. St. 403. Yet ™ The relation between a stock- if plaintiff's proofs should establish broker, who is carrying stock on a that defendant has possession of a margin, and his customer, is that of certificate, standing in plaintiff's pledger and pledgee. Markham v. name and requiring his indorse- Jandon, 41 N. Y. 235; Content v. ment before it could be transferred, Banner, 184 id. 121. See Form 1118, it would be error to allow plaintiff for complaint by such customer. the market value of the stock. '» Trover will lie for shares of stock. Daggett ;;. Davis (Mich.), 18 N. W. Morton v. Preston, 18 Mich. 60; Rep. 548. Anderson v. Nicholas, 28 N. Y. 600; '"See extensive note on measure Kuhn V. McAllister, 96 U. S. 87. It of damages at end of this chapter. 1198 Abbott's Forms of Pleading lars, • and pledged to defendant as security therefor *' the aforesaid [securities]. III. That said loan was duly paid off by plaintiff to the defendant at maturity. IV. That thereupon [or, thereafter] and on or about the day of , 19 , at , plaintiff duly demanded of defendant the return of said securities, but defendant refused to return the same or any part thereof, [and as plaintiff is informed and believes, he has sold and dis- posed of the same and converted them to his own use,] *^ to the damage of plaintiff dollars. Wherefore [etc., demand of judgment]. 1107. The Same, After Tender of Amount Due.^' I and II. [Allege as in previous form.] [If payment of loan was thereafter extended: That on or about the day of , 19 , for a valuable consideration defendant agreed to extend payment of said (note) until (plaintiff should return to New York).] '^ III. That when said loan became due and payable, to wit, on the day of , 19 , plaintiff duly ten- dered '^ to defendant the amount thereof, together with the "' Such an allegation is not to be where it was held that another count construed as meaning that plaintiff was not necessarily inconsistent which assigned the stock in blank, or signed charged the pledge of only a por- a power of attorney to transfer. tion of the securities and a bonus of Treadwell v. Clark, 114 App. Div. the remainder, but that the whole 493, 104 N. Y. Supp. 1, aflf'd 190 transaction was void for usury. N. Y. 51. In Usher ;;. Van Vranken, 48 App. '2 Excuses demand and refusal, Div. 413, 63 N. Y. Supp. 104, the and unnecessary if demand and re- complaint was sustained against the fusal can be established. See notes pledgee and various successive tran^- to Forms 1077 and 1078. ferees who were charged with having If in fact the securities were re- knowledge of plaintiff's rights, pledged by defendant, or were sold '* From Furber v. Nat. Metal Co., or disposed of without plaintiff's per- 193 N. Y. 622. mission, this action is complete at "* An allegation that defendant as- the time of the repledge or sale. See serted absolute ownership does not Wood V. Fisk, 215 N. Y. 233. excuse the necessity of an allegation s'From Shirley v. Bernheim, 123 of tender and demand, or that de- App. Div. 428, 107 N. Y. Supp. 946, fendant has disposed of the pledged Actions for Conversion 1199 interest accruing thereon to said date [show, also, that the amount of any other proper charge has been tendered] and duly- demanded of defendant thie return and surrender to plaintiff of said [securities].^^ IV. That defendant refused to return or surrender the said [securities], or any part thereof, and has converted and disposed of the same to his own use, to plaintiff's damage dollars.*'' Wherefore [etc., demand of judgment]. 1108. The Same, After Unauthorized Sale Without Notice, After Plaintiff's Default in Repayment. ^^ I. That on or about the day of , 19 , plaintiff was the owner and in possession of the following property: [state character of property delivered to defendant upon the pledge]. II. That on or about said date, defendant loaned to plain- tiff the sum of dollars, upon plaintiff's note dated on said day and payable on the day of , 19 , and thereupon plaintiff delivered to defendant the aforesaid property as security for the repayment of said loan. III. That upon maturity of said loan plaintiff was unable to make repayment thereof; that thereafter, and on or about property. Brown v. Leary, 100 N. Y. Supp. 288, aff'd 200 N. Y. App. Div. 421, 91 N. Y. Supp. 463. 553. ** If defendant has sold the securi- See Cass v. Higenbotham, 100 N. ties, without notice or consent, Y. 248, 1 Central Rep. 315, as to tender of amount due or demand pledgor's right to recoup or counter- for their surrender is not necessary. claim the Conversion in an action by Mullen V. Quinlan & Co., 195 N. Y. the pledgee upon a note given with 109, 28 Am. & Eng. Encyc. of Law, the collateral. 686. Nor is demand necessary as "If the securities have been wrong- against a transferee who is charged fully disposed of by defendant, this to have had knowledge of plaintiff's action grows out of that fact, and rights. Ushef v. Van Vranken, 48 not that plaintiff's tender was re- App. Div. 413, 63 N. Y. Supp 104. jected and his demand refused. See But a conversion excusing tender Wood v. Fisk, 215 N. Y. 233. and demand is not established by ^^ If the pledgee was in fact au- the transfer of the stock to the name thorized to sell the pledge without of an employee of defendant. Jones notice to pledgor, thii is matter of V. Seaman, 133 App. Div. 127, 117 defense. 1200 Abbott's Forms op Pleading the day of " , 19 , without any notice whatsoever to plaintiff of time or place of sale, defendant sold said [property], and thereby converted the same to his own use. IV. That said [property] at the time of such sale was of the value of dollars, and plaintiff has been damaged by reason of the premises in the sum of dollars. Wherefore [etc., demand of judgment.] 1109. The Same, Refusal to Sell upon Request, after Plaintiff's Default in Repayment.'" I and II. [As in Form 1106.] III. That when said loan became due and payable, plain- tiff notified defendant of his inability to pay the same, and requested defendant to sell said securities and pay the amount of said loan from the proceeds thereof. IV. That defendant has refused to sell said stock and has wrongfully converted the same, and dividends accruing thereon, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1110. The Same, Where Pledge was Under an Assignment which was Absolute on Its Face.^" I. That at the times hereinafter mentioned plaintiff was the owner of [a certain bond and mortgage, -bearing date the day of j 19 , and evidencing and secur- ing the payment to plaintiff of the sum of dollars, on the day of , 19 , with interest; that *' From Brightson v. Claflin Co., the pledgee was necessary in order 108 App. Div. 284, 95 N. Y. Supp. to enable the pledgor to maintain 751, where it was held that the com- an action to recovery the difference plaint stated a cause of action in between the value of the security conversion notwithstanding it de- and the amount for which it was manded an accounting. pledged. * From complaint in Barber c. The fact that the assignment, Hathaway, 169 N. Y. 575, aff'g 47 absolute on its face, was in fact App. Div. 165, 62 N. Y. Supp. 329. given by way of security, was es- It was held that no allegation or tablished in this case by a collateral proof of tender of the amount due to writing. Actions for Conversion 1201 said bond and mortgage were made by one M. N., to plain- tiff, and said mortgage covered premises therein described and was recorded in Liber of Mortgages, page , in the oflSce of the clerk of the county of ]. [Or otherwise describe character of pledged property.] II. That on or about the day of , 19 , plaintiff assigned and deUvered said bond and mortgage to defendant by way of pledge to secure the repayment to defendant of the sum of dollars and interest thereon, which said sum was then loaned by defendant to plaintiff; that defendant received said bond and mortgage as such security, and agreed with plaintiff to. safely keep the same imtil they should be redeemed by plaintiff by the repayment of said loan, whereupon they should be returned and deli\'- ered to plaintiff with proper reassignment thereof. III. That thereafter and on or about the day of , 19 , defendant sold, assigned, transferred and delivered said bond and mortgage to one M. N., at a private sale, and without demanding of plaintiff repayment of said loan and without any notice of the time or place of such sale, and without the knowledge or consent of the plaintiff, and without giving plaintiff any opportunity to redeem the same. IV. That by said sale, transfer and delivery, defendant has wrongfully converted and disposed of said bond and mortgage to his own use, to plaintiff's damage dollars, which ^was the value of said bond and mortgage . less the amount of such loan and accrued interest at the .time of such unlawful disposition thereof by defendant." Wherefore [etc., demand of judgment]. 1111. For Conversion of Goods Sent for Examination Only.'^ I. That at , and on or about the day of " Prima facie the value of a bond not alter the presumption in the ab- and mortgage is the amount unpaid sence of proof of the insolvency of thereon; the fact that the mortgaged the mortgagor. Id. premises are not of that value will '^ Adapted from Wood v. Proud- 1202 Abbott's Forms of Pleading ,19 , plaintiff delivered to defendant certain [diamonds], the property of the plaintiff, for defendant's examination, and which were to be retained by defendant subject to plaintiff's order, and' to be returned to plaintiff on demand [or otherwise according to terms of delivery]. II. On information and belief, that thereafter and prior to the . day of > 19 , defendant misappro- priated said [diamonds] and wrongfully converted and dis- posed of the same. < [Or if there has been no disposal excusing demand for return:] That heretofore and on or about the day of , 19 , plaintiff duly demanded of defendant the return of said diamonds, but defendant refused to return the same and has converted the s^me to his own use. III. That said {diamonds] were on said [date of conversion] of the value of dollars. Wherefore [etc., demand of judgment]. 1112. Against Factor, or Agent to Sell, Who Refuses to Remit Proceeds of Sale.^' I. That the defendant at the times hereinafter mentioned man, 122 App. Div. 826, 107 N. Y. ceived by him. See Harris v. Schultz, Supp. 767. 40 Barb. (N. Y.) 515; Walter v. *' From complaint in Britton v. Bennett, 16 N. Y. 250; Connaughty Ferrin, 171 N. Y. 235, where it was t;. Nichols, 42 id. 83; Greentree v. held that the complaint stated a Rosenbaum, 61 id. 583; Leach v. cause of action in conversion; this Smith, 27 App. Div. 290, 50 N. Y. decision supersedes prior authorities Supp. 664. • to the effect that where- an agent But the distinction between con- has refused to remit proceeds of version, ai!d an action for money had sales on commission, after demand, and received in a fiduciary capacity, conversion would not lie. It was is now without importance under formerly held that the mere failure the New York practice, since the or refusal of the agent or other fidu- remedies are now identical, viz.: ciary to pay over to the principal In either form of action an arrest is the money received by him in the allowed, and a body execution issues course of his agency, upon the prin- after judgment without previously cipal's demand, would not lay the obtaining an order of arrest. N. Y. foundation of an action of trover. Code Civ. Pro., §§ 549, 1487; Rich- since the agent was not usually bound mond S. S. Co. v. Seagar, 31 App. to pay over the specific money re- Div. 288, 52 N.Y. Supp. 985. Actions for Conversion 1203 was engaged in the business of selling [fruit] on commission at II. That on or about the day of , 19 , plaintiff employed defendant to sell upon commission [a carload of apples] the property of plaintiff, and thereupon de- livered the same to defendant at said city for such purpose. III. That thereafter and prior to the day of ,19 , [but on what particular day or days plaintiff is unable to state] defendant sold said apples for the sum of dollars, which sum defendant thereupon received on behalf of plaintiff and in a fiduciary capacity. IV. That the just charges of the defendant, for his com- mission, ariiount to the sum of dollars; that prior to the commencement of this action plaintiff duly demanded of defendant payment of the balance of such proceeds re- maining after deducting said charges, being the sum of dollars, but defendant has wrongfully refused to pay the same, and has wrongfully converted the ^me to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1113. Against Agent, Under an Agreement for Sale of Plaintiff's Property, or Its Return.^* [Adapted-, from Yardum v. Wolf, 33 App. Div. 247, 54 N. Y. Supp. 192; Thomas Mfg. Co. v. Symonds, 27 id. 316, 50 N. Y. Supp. 695.] I. That on or about the day of , 19 , the plaintiff was the owner and entitled to and in posses sion of the following-described articles [of jewelry], to wit: [description]. II. That upon the date last mentioned said jewelry was '* An allegation that plaintiff " duly the precedent, although included demanded the return" of bonds given above; the court suggested that if, to defendant to sell or return, suf- as a matter of fact, the property ficiently implies, as against demurrer, had been sold, that fact might have that the bonds remain unsold. been set up as a defense. Thomas Bradley v. Fanshawe, 3 How. Pr. Sifg. Co. v. Symonds, 27 App. Div. N. S. (N. Y.) 118. The direct allega- 316, 50 N. Y. Supp. 695. tion of non-sale was not included in 1204 Abbott's Forms of Pleading delivered to the defendant and was received by him for sale upon the following terms and conditions, viz. : [state terms, as] that the title to said property should remain wholly in plaintiff until the same was sold; that said jewelry should not be offered for sale or sold by defendant for cash at a price less than its fair market value, and in no event at a price less than dollars, and that if said jewelry should be sold in separate lots as above described, the first lot sold should not be sold at a price less than dol- lars, and that the money received from said sale or sales up to the amount of dollars, should be the absolute property of the plaintiff, and paid over by the defendant to the plaintiff or his attorney immediately, and as soon and as fast as said jewelry should be sold; and that in the event said jewelry, or any part thereof, should not be sold and disposed of within months after the said day of , 19 , that the defendant should return the same to th^ plaintiff. III. That the defendant did not so sell said jewelry and re- turn to plaintiff the said sum of dollars, nor did de- fendant return to plaintiff any portion of said jewelry unsold and the proceeds of the sale of any jewelry sold by him, before the expiration of said months; that thereupon, and on or about the day of , in the year 19 , the plaintiff in pursuance of the agreement hereinbefore mentioned, duly demanded of the defendant the proceeds of any sales by him of said jewelry up to said sum of dollars, and the return to plaintiff of the jewelry received by said defendant for sale, and then unsold, and the pro- ceeds of such jewelry as had been sold, up to an amount less than dollars, as provided in said agreement; that the defendant refused, and refuses and neglects to deliver to plaintiff the proceeds of any sale, or to return to the plaintiff said jewelry, or any money received therefor, or to account therefor as requested by plaintiff,'^ and defendant has wrong- "' Refusal to account, i. e., to state mediate right to demand return of how much has been sold, gives im- unsold goods and payment of pro- Actions for Conversion 1205 fully converted and disposed of said jewelry so intrusted and delivered to him, to his own use, to plaintiff's damage dollars."" Wherefore [etc., demand of judgment]. 1114. The Same, Under Agreement to Purchase or Return. I. That on or about the day of 19 at , plaintiff was the owner of [describe property, as] a bond [describe as in Form 1104]; that on said day, at the request of the defendant, plaintiff deposited said bond with the defendant for the purpose of enabling him to ascertain the value thereof, upon an agreement between him and plam- tiff that on ascertaining the value, he would either buy the same from plaintiff and pay him the value thereof, or would return it to him upon demand. II. That after a reasonable time for ascertaining the value thereof, and on or about the day of ,19 at , plaintiff duly demanded from the defendant the said bond, or the value thereof; that the defendant re- fused either to return it or to pay its value to plaintiff. III. "That the value of said bond, at all the times aforesaid, was dollars. IV. That by reason of the premises, plaintiff has been dam- , aged dollars. Wherefore [etc., demand of judgment]. 1115. Against Consignee, Appropriating Goods Shipped by Mistake. I. That on or about the ,day of , 19 , the plaintiff was the owner and possessed of [designate the merchandise] of the value of dollars, and then ceeds of goods sold. Yardum v. mand made for its return. Stern u. Wolff, 33 App. Div. 247, 54 N. Y. Sydney, 91 Misc. 33, 154 N. Y. Supp. Supp. 192. 130; Thomas Mfg. Co. v. Symonds, * Where a single article is delivered 27 App. Div. 316, 50 N. Y. Supp. for sale, it is matter of affirmative 695. defense that it- was sold before de- 1206 Abbott's Forms of Pleading shipped the same from , consigned to the defendant at , who thereafter received the same. II. That plaintiff shipped the said goods to said defendant by mistake, and that said defendant well knew that it was done through mistake, and knew that said merchandise did not belong to him, but was so shipped by mistake; that, not- withstanding the premises, all of which defendant knew, defendant converted and disposed of the said goods to his own use, and wholly failed to notify plaintiff of his mistake and of the shipment and receipt of said goods. III. That before the commencement of this action, and on or about the day of , 19 , plaintiff in- formed said defendant that said merchandise was so shipped through mistake, that it belonged to plaintiff, and that he was entitled to the immediate possession of the same, and duly demanded of defendant the possession thereof, and the payment of the proceeds of any sale thereof; that defendant has refused to allow plaintiff to take possession of said goods or to pay him the proceeds of any sales, and has converted and misappropriated said goods and the proceeds of any sales of any portion thereof to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1116. Against Agent to Sell at Price to be Approved by Principal, for Selling Without Approval.^'' I. That on or about the day of , 19 , plaintiff was doing business [state its character, as:] as a theatrical manager, and as such was the owner of certain theatrical costumes or wardrobes. II. That on or about the month of , 19 , plain- tiff assigned and deUvered to defendant, the said theatrical costumes and wardrobes, upon the following terms and con- ditions: That defendant should solicit purchasers therefor, and use his best efforts to sell the said costumes at a suitable " Adapted •from the complaint in Comley v. Dazian, 114 N. Y. 161. Actions for Conversion 1207 price, and, with the consent and approval of the plaintiff, to sell the said costumes and account to plaintiff for the pro- ceeds thereof, and to pay over the same, less per cent thereof to be allowed to defendant for his services m per- fecting such sale; and it was specially provided and agreed that all offers to purchase said costumes, and the prices and terms of any proposed purchase thereof, should be submitted by defendant to the plaintiff for his approval, and that no sales should be made of such costumes except the consent and approval of the plaintiff to the terms and conditions thereof were first obtained. III. That the defendant, in violation of said contract, has sold and disposed of the said costumes without the consent ■ of the plaintiff, and has received, or is to receive therefor, the sum of dollars; that said goods were of the value of at least dollars, and that said defendant, although plaintiff has duly demanded the same, has refused to deliver the said costumes to the plaintiff, or to pay plaintiff the value thereof, and does still so refuse [and has wrongfully converted and disposed of said costumes to his own use],"* whereby plaintiff has suffered damage dollars. Wherefore [etc., demand of judgment]. 1117. Against a Purchasing Agent for Converting Money Advanced.'* I. That on or about the day of , 19 , defendant, who was engaged in business at , agreed with plaintiff, who was engaged in business at , that in consideration of a commission of per cent, to be allowed to defendant, he, defendant, would purchase for plaintiff [designate merchandise] with money to be intrusted to defendant for that purpose by plaintiff. ''Not in the precedent, but in- N. Y. Supp. 78; Ibled v. Koehler, serted to more clearly characterize 134 App. Div. 496, 119 N. Y. Supp. the action as sounding in tort. 241; Britton v. Ferrin, 171 N. Y. 235; "' For the sufficiency of this com- All-Package G. S. Co. v. McAtamney, plaint see decisions in Spiegel v. 174 App. Div. 778, 161 N. Y. Supp. Levine, 161 App, Div. 764, 147 622. 1208 Abbott's Forms of Pleading II. That pursuant to said agreement, and on or about the day of , 19 , plaintiff sent to the defendant the sum of dollars; that said amovint was so sent to defendant expressly and solely in conformity with said agreement, and was received by defendant solely for the purchase by him for plaintiff of said goods, and to cover the cost thereof, including the aforesaid commission. III. That said defendant has wholly failed to purchase said goods for plaintiff, and has wrongfully converted and embezzled and disposed of the plaintiff's money so received by him to his own use. IV. That the plaintiff has duly demanded of defendant that he return said money to plaintiff, but defendant has refused so to do, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1118. Against Stockbroker for Conversion of Securities He Had Agreed to Carry. ^»<' [Adapted from complaints in Keller v. Halsey, 202 N. Y. 588; Read v. Lambert, 10 Abb. Pr. N. S. (N. Y.) 428, and Levy V. Lock, 85 N. Y. 365; again, 89 id. 386.] L [As in Form 1119.] II. That on or about the day of , 19 , plaintiff employed defendant as his broker and agent to piu-chase [or, to sell short] '"' for plaintiff's account [designate securities directed to he boiight or sold according to the fact], and in consideration thereof, and of the payments hereinafter alleged, defendant agreed to hold and carry for the plaintiff, until he was given directions to sell, the specific securities "* The next form, while more is not sustained by proof of a valid voluminous, is recommended, as lien but a wrongful sale without tending to narrow the issues. notice. Moore v. Rodewald, 142 A complaint which does not dis- App. Div. 741, 127 N. Y. Supp. close the transaction, but which 725. merely alleges that the defendants "" See, as to the undertaking of a came into possession of certain prop- broker making a short sale. Matter erty of plaintiff's which they wrong- of Mills, 139 App. Div. 54, 133 N. Y. fully refused to return on demand, Supp. 671, aff'd 200 N. Y. 583. Actions for Conversion 1209 he should purchase for plaintiff [continuing as in paragraph III of next form]. That on said day plaintiff paid to defend- ant the sum of dollars, as a proportionate payment of the price of such securities as defendant should thereafter buy for plaintiff under said employment. III. That thereafter, and on or about the day of , 19 , defendant purchased for account and risk of plaintiff [designate securities] for the sum of dollars, which sum less the dollars paid thereon by plaintiff he charged to plaintiff, and for purchasing which he charged plaintiff a commission of dollars. That defendant retained the said specified securities as collateral security for the sum so advanced by him in the purchase thereof. rV. That on or about the day of , 19 , without any notice to plaintiff of the amount due from him, or any demand upon him for payment thereof, and without authority so to do, the defendant, in violation of his agree- ment, and without notice to plaintiff of the time or place of sale,^"^ and without plaintiff's consent, wrongfully ^"^ sold and disposed of said securities and converted the same to his own use, to the damage of this plaintiff dollars."''' [Or, where an account had been stated.] That on or about the day of , 19 , an account was stated between the plaintiff and the defendant, including the afore- said transaction, and upon such statement a balance of dollars was found by him to be due to the defend- ant from the plaintiff, and no more; of which sum plaintiff then and there offered payment to the defendant, on con- '"^ A sale without notice of time '"^ It is desirable to so characterize and place is a conversion. Mayer v. defendant's act, to avoid a holding Monzo, 221 N. Y. 442; Moore v. that the complaint is on contract. Rodewald, 142 App. Div. 741, 127 See Barber v. Ellingwood, 137 App. N. Y. Supp. 725. Div. 704, 122 N. Y. Supp. 369. A notice which fails to state time '"* See more detailed allegations or place of intended sale is fatally in paragraph VII of next form, as defective. Content v. Banner, 184 to character and measure of dam- N. Y. 121. age. 1210 Abbott's Forms of Pleading dition of his delivering said securities to plaintiff, which he then and there refused to do, and, as plaintiff is informed and believes, defendant has sold and disposed of said secu- rities and converted the same to his own use, to the damage of plaintiff dollars.'"' Wherefore [etc., demand of judgment].^"^ 1119. Against Stockbrokers; Another Form, with more Detail.""^ I. That at all the times hereinafter mentioned, the de- fendants were co-partners at the city of , doing busi- ness as stockbrokers, under the firm name and style of II. That heretofore, between the day of , 19 , and the day of , 19 , defendants, as plaintiff's agents and brokers, at the special instance and request of plaintiff, purchased for him the following shares of stock, at the following prices, viz. : [description], and that said stocks were thenceforth, and until about the day of , 19 , held and carried by them for plaintiff; that upon such purchases, and as margin thereon, plaintiff deposited with defendants amounts aggregating the sima of dollars. III. That said purchases were made, and said stocks so held and carried, under and pursuant to an agreement made by and between plaintiff and defendants, that in considera- tion of plaintiff's so employing said defendants, and allowing them interest and commissions, and depositing such col- lateral security or margin as defendants should from time i»5 If the characterization of de- 195 N. Y. 109, 28 Am. & Eng. Encyc. fendant's act as a conversion is of Law, 686. omitted, the complaint may be con- ^'>' Adapted from complaint in strued to be on contract. See Barber Fickinger v. Ives, 109 App. Div. 684, V. EUingwood, 130 App. Div. 555, 96 N. Y. Supp. 396; Rothschild v. 115 N. Y. Supp. 43. AUen, 90 App. Div. 233, 86 N. Y. "» Demand and tender of balance Supp. 42, aff'd 180 N. Y. 561; Hardy of the purchase price need not be v. Peters, 30 Hun (N. Y.), 79. See alleged. Mullen v. Quinlan & Co., notes to preceding form. Actions for Conversion 1211 to time require, they, said defendants, would purchase and obtain said stocks at the best prices obtainable, and would hold and carry the same, subject to plaintiff's direction as to the sale and disposition thereof, as long as plaintiff should desire, and would not sell or dispose of the same unless plaintiff's margin should be exhausted or insufficient, and not then unless plaintiff should fail to comply with their demand of plaintiff that he should give further security or margin, ^r take said stocks and pay the balance due there- for, and in the event of plaintiff's failure so to do, defendants agreed to give him due notice of the time and place of such sale."^ [IV. That defendants have never demanded of plaintiff that he should deposit any collateral security or margin, nor was there at any time any notice given to plaintiff by said defendants that any collateral security or margin was desired or required by defendants, before the alleged sale of said stocks as hereinafter mentioned.] V. That between the and days of , 19 , defendants, in violation of their said agreement, and without calling on plaintiff for any additional margins, or giving him any opportunity to take said stocks and pay the balance due therefor, or notifying plaintiff of the time and place of sale, wrongfully sold or pretended to sell the said stocks, and misapplied the proceeds of said sale, and wrongfully converted them to their own use. VI. That plaintiff was wholly ignorant of defendant's said wrongful sale until on or about the day of ,19 . VII. That thereafter, and before the expiration of a reasonable time within which plaintiff could have replaced ™ This is a correct statement of This paragraph was used in Roths- the broker's duty in the absence of child v. Allen, 90 App. Div. 233, 86 an agreement to the contrary; if N. Y. Supp. 42, aff'd 180 N. Y. 561, some other agreement was in fact in which case is a discussion of the made, the broker has the burden of broker's right to re-pledge the securi- proving it. Thompson u. Bailey, 220 ties he carries. N. Y. 471. 1212 Abbott's Forms of Pleading said stocks, after learning of defendants' wrongful conver- sion thereof as hereinbefore alleged, said stocks rose in value and market price; and that by reason of defendants' breach of said agreement, and their said conversion of said stocks, plaintiff has been damaged in the sum of dollars.^"' Wherefore [etc., demand of judgment]. 1120. Against Warehouseman, by Assignee of Warehouse Certificate."" I. That on or about the day of , 19 , the defendant, who was then a warehouseman doing business at , received from one M. N., of , [design-ate the goods; see Form 1077] of the value of dollars, for storage in his said warehouse, and then and there executed and delivered to said M. N. a warehouse receipt therefor, of which a copy is hereto annexed as a part of this complaint, and marked Schedule A. II. That on or about the day of ; 19 > said M. N. sold to plaintiff, and plaintiff bought of said M. N., the merchandise hereinbefore mentioned, in storage with the defendant as aforesaid, and as a means of delivering the same, said M. N. then and there assigned and delivered to plaintiff the said original warehouse receipt, with the in- dorsement by M. N. thereon of an order to defendant to deliver said merchandise to plaintiff, of which indorsement a copy is hereunto annexed as a part of this complaint, and marked Schedule B. III. That on or about the day of , 19 , and after all his storage charges on said merchandise had been fully paid to defendant [or, if not paid, allege tender to defendant of amount of charges], plaintiff duly presented ™ That this is the correct meas- chapter in measure of damages in ure of damages, see Mayer v. Monzo, conversion. 221 N. Y. 442; Wright v. Bank of "»A complaint in substantially Metropolis, 110 N. Y. 237; Mullen this form, but brought by the owner V. Quinlan & Co., 195 id. 109. See, and for the possession of the prop- also, extensive note at the end of this erty, was sustained in Visher !>. Smith, 91 Cal. 260, 27 Pac. Rep. 650. Actions for Conversion 1213 and tendered to said defendant the said original warehouse receipt with said indorsement thereon, and duly demanded delivery of said merchandise, but said defendant refused to deliver the same. IV. That defendant has wrongfully converted and dis- posed of said merchandise to his own use, to the damage of plaintiff dollars. Wherefore [etc., demand of judgment]. 1121. Against Common Carrier.'^' I. [Allege corporate capacity, or other capacity,] that de- fendant is a cpmmon carrier engaged as such in the business of transporting goods for liire. II. [Allege delivery of goods to defendant, as:] That on or about. the day of ; 19 , plaintiff delivered to the defendant certain goods consisting of [briefly describe], and which were of the value of dollars, for trans- portation by it from to , there to be de- livered to one M. N. III. On information and belief, that defendant has wrongfully delivered said goods to. some other person to plaintiff vmknown [or otherwise show misfeasance], and has thereby converted said goods, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1122. Against Common Carrier; After Reshipment to Consignor. "- I. That the defendant is a domestic railroad corporation engaged in domestic and interstate commerce. "' A common carrier is not liable Atlas S. S. Co., 168 N. Y. 533, and in conversion, except for misfeasance, cases cited; see also Forms 728-743, though it is not necessary to show for complaints against common ear- that such misfeasance is intentional. riers for breach of duty, and notes A mere non delivery by the carrier thereto. wiij not constitute a conversion, but "' Adapted from Troy Waste Mfg. the action should be brought for a Co. v. N. Y. Central R. Co., 158 breach of duty. See Walmsley v. App. Div. 352, 143 N. Y. Supp. 420. 1214 Abbott's Forms or Pleading II. That at , and on the day of , 19 , the plaintiff caused to be shipped by the defendant to one M. N., at , in the State of , [state goods, as], twenty-four bales of gunny bagging, containing pounds, and plaintiff duly prepaid the freight thereon amounting to III. On information and belief, that said merchandise was rejected by the said consignee at , and that there- upon, and immediately, directions and orders were given to the defendant by both the said consignee and by this plain- tiff to reship and return said merchandise to plaintiff at IV. That said merchandise was thereupon reshipped and returned and conveyed by the defendant to , and the plaintiff was notified that said merchandise had been reshipped and was at a depot of the defendant at V. That the plaintiff then and thereupon offered to pay to the defendant the freight charges for such reshipment from , to the city of , amounting to dollars, and thereupon demanded of said defendant that said merchandise be delivered to this plaintiff. VI. That the defendant unlawfully refused to accept said freight charges, and unlawfully refused to deliver said mer- chandise to plaintiff, and unlawfully refused to allow and permit plaintiff to take said merchandise from its depot and station at aforesaid, all to the damage of this plaintiff of dollars. VII., That the plaintiff is the owner of the said merchan- dise, and is entitled to the immediate possession of the same; that the defendant unlawfully and illegally retains possession of the same, and unlawfully and illegally refuses to deliver the same to the plaintiff, and in like manner re- fuses to permit the plaintiff to take the same, although the plaintiff has duly demanded of the defendant that it deliver same to the plaintiff and allow and permit the plaintiff to take the same after paying the freight charges thereon from to , and that the defendant has thereby Actions for Conversion 1215 and by reason thereof converted the same to its own use to the damage of this plaintiff dollars, being the value of the merchandise, which is dollars, less the sum of dollars due to the defendant for said freight charges upon the goods. Wherefore [etc., demand of judgment]. 1123. Against Private Expressman or Truckman, who Delivers Goods to Wrong Person."' I. That at the times hereinafter mentioned defendant was an expressman engaged in the transportation for hire of goods within the city of II. That on or about the day of , 19 , plaintiff delivered to defendant [describe chattel] for delivery by defendant to one M. N. at in said city. III. That defendant did not deHver said [chattel] to said M. N., but [on information and behef] has delivered the same to one 0. P., or to some other person to plaintiff un- known. IV. That said [chattel] was at the times aforesaid of the value of dollars. Wherefore [etc., demand of judgment]. 1124. Against Bank ; Misappropriation of Depositor's Funds by Paying Unauthorized Checks."^ I. [AUege defendant's corporate capacity and business, as in Forms 44 o-nd 154-] II. That prior to the day of , 19 , "' Every bailee is bound, at his Nat. Bank, 55 App. Div. 1, 67 N. Y. peril, to know that the person to Supp. 397, defendant had accepted whom he delivers the chattel is and paid a corporation's check the proper person to receive it, and drawn by its president to his own if he delivers it to the wrong person, order. It was held to be such a though acting in perfect good faith, misapplication of the corporate funds he is nevertheless liable for its con- as excused demand, version. Sonn v. Smith, 57 App. Precedent adapted from Schnabel Div. 372, 68 N. Y. Supp. 217. v. Hanover Nat. Bank, 78 Misc. 35, "* In Reynolds El. Co. v. Merch. 137 N. Y. Supp. 727. 1216 xIbbott's Forms of Pleading plaintiff had deposited to his credit with the defendant funds amounting to more than dollars, which de- fendant agreed to return to plaintiff on demand, or to pay out upon his proper order, and which on said day remained in defendant's possession. III. On information and belief that defendant on or about said day misapphed dollars of said funds by paying such amount to one M.N. [or, to persons unknown to plain- tiff] upon a check purporting to have been made by plaintiff, but which was a forgery and not made by him or by his authority. IV. That plaintiff has heretofore duly demanded of de- fendant the return to him of said sum of dollars so converted and misapplied, but defendant has refused to return any part thereof, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1125. Against Bank Which Collected Checks Belonging to Plaintiff, on an Unauthorized or Forged Indorsement, and Paid out the Proceeds. '^'^ I. [Allege defendant's corporate capacity and business; see Forms 44, 154.] II. That plaintiff was at the times hereinafter mentioned, the owner and entitled to the possession of certain checks as '" Complaint sustained against and by the president in his individual motion at trial to dismiss in Schmidt name, and which were deposited to V. Garfield National Bank, 64 Hun, his individual credit and subse- 298, 19 N. Y. Supp. 252, aff'd 138 quently collected, and paid to him N. Y. 631, without opinion. The on his individual checks. HeU), that court held that no allegation of plaintiff had an action either for demand was necessary in addition money had and received, or for con- to the allegation of wrongful disposal version, and that the theory was and conversion. immaterial when the defendant was a In Moch Co. v. Security Bank, corporation and not subject to arrest 176 App. Div. 842, 163 N. Y. Supp. or body execution. See action by a 277, the defendant received checks judgment creditor on similar facts, payable to plaintiff's order indorsed, Form 1485. in plaintiff's name by its president Actions for Conversion 1217 follows: [describe them — or annex and refer to schedule]; that said checks were and axe of the value of dollars. III. That between the day of , 19 , and the day of , 19 , the defendant, wrong- fully and without the authority of the plaintiff,"" obtained possession of said checks, [upon indorsements of such checks made in plaintiff's name by one M. N., as plaintiff's president, without any authority] and wrongfully disposed of and con- verted the same and the proceeds thereof to its own use, [or, to the use of said M. N. individually], to plaintiff's dam- age dollars. "'^ Wherefore [etc., demand of judgment]. 1126. For Conversion of Deposit, Made in Trust for Plain- tiff. [Sustained in Bullen v. Mm-phy, 16 Abb. New Cases (N. Y.), 474.] I. That between the day of , 19 , and the day of , 19 , at the city of , the plaintiff paid and delivered to the defendant, as plaintiff's trustee, various sums of money belonging to plaintiff, amounting in all, exclusive of interest, to the sum of dollars, which said sums of money defendant accepted and agreed to deposit in bank in trust for plaintiff, and to return the same, on demand, to plaintiff, with the interest allowed thereon by said bank. II. That defendant did so deposit said sums of money in trust for plaintiff in the Bank of , and that the principal, with the interest so allowed thereon, amounted "' The appellant criticized this to allow proof of the act of the forger allegation as indefinite; the court and support plaintiff's recovery, it held, however, that it was sufficient would probably be better to allege to admit evidence that plaintiff's the facts as they really transpired, name was forged, or was indorsed and thus avoid a claim of surprise on upon the checks without his au- the part of the defendant. See thority. Schnabel v. Hanover Nat. Bank, "'While the court held that the 78 Misc. 36, 137 N. Y. Supp. allegations here given were sufficient 727. 1218 Abbott's Forms of Pleading to dollars on the » day of , 19 , all of which defendant drew out of said bank between , 19 , and ,19 , and wrongfully kept, retained and converted the same to his own use. III. That thereafter, and before commencing this action, plaintiff duly demanded said principal sum of dol- lars, together with the said interest, amounting in all to the sum of dollars, from defendant, but no part thereof has been paid [except the sum of dollars, which de- fendant has paid plaintiff on account], and defendant still wrongfully neglects and refuses to pay the same, to plain- tiff's damage dollars. Wherefore [etc., demand of judgment]. 1127. Under Agreement for Conditional Sale; By Seller Against Buyer. I. That on or about the day of , 19 , the plaintiff and defendant entered into an agreement whereby defendant agreed to buy of plaintiff [description of property] and to pay therefor the sum of dollars, in equal monthly installments of dollars, each pay- able on the day of each succeeding month there- after, and plaintiff agreed to deliver the said [property] to defendant upon the execution of said agreement, and to accept payment therefor in said monthly installments; and it was further mutually agreed that the title to said [prop- erty] should be and remain in the plaintiff until said pay- ments were fully made, and that in case of defendant's default in making any one of said payments, plaintiff should be entitled to the immediate return of said [property]. II. That plaintiff then and there delivered said [property] to defendant, but that defendant has failed to pay the install- ment coming due on the day of , 19 . III. That on or about the day of , 19 , plaintiff duly demanded of defendant the return of the said [property], but defendant has failed and refused to return Actions for Conversion 1219 the same "^ and has converted said [property] to his own use, to plaintiff's damage dollars.^'^ Wherefore [etc., demand of judgment]. 1128. The Same, Seller Against Transferee of Buyer, or Purchaser at Foreclosure. [Sustained in Colwell Lead Co. v. Home Title Ins. Co., 154 App. Div. 83, 138 N. Y. Supp. 790, aff'd 214 N. Y. 645.] 120 I. That on or about the day of , 19 , at the special instance and request of one M. N., who was the owner of certain premises situated at the [southwest corner of Maple and East Forty-eighth streets, borough of Brooklyn, New York], plaintiff furnished and delivered cer- tain [bathroom and plumbing] fixtures, described in a condi- tional bill of sale, a copy of which is annexed to the com- plaint marked Schedule A and made part hereof, at the agreed price and value of dollars, which said fix- "* Demand for return is neces- sary. Moran v. Abbott, 26 App. Div. 670, 50 N. Y. Supp. 337; Gillet V. Roberts, 57 N. Y. 28; O'Rourke v. Hadcock, 114 N. Y. 541. If the vendor allows the vendee to retain possession after the latter's default, a demand for payment must be made, and the vendee has meantime a salable interest in the property. If» so sold, the purchaser from the vendee, though chargeable with notice, is not liable for a conversion without demand. Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261; Shipley Constr. & Supply Co. v. Mager, 165 App. Div. 866, 150 N. Y. Supp. 969. "' The damages in New York, under § 65 of the Personal Property Law, in an action against the vendee, or his successor in interest (in which class would fall a transferee), is limited to the amount unpaid under the contract at the date of the con- version. Davis V. Bliss, 188 N. Y. 77. In the absence of statutory modification, it is held in some States that the recovery must be limited to the unpaid purchase price (Johnston v. Whittemore, 27 Mich. 463; Morton v. Frick Co., 87 Ga. 230; Wood v. Nichols, 21 R. I. 537; Rose V. Story, 1 Pa. St. 190), in others that the full value of the property may be recovered (Colcord V. McDonald, 128 Mass. 470; Brown V. Haynes, 52 Me. 578; Buckmaster V. Smith, 22 Vt. 203). '^ It is immaterial that the plain- tiff was made a party to the mort- gage foreclosure under the general allegation of having a subordinate lien, and made default therein. Id. The filing of a mechanic's lien waives the seller's right under the conditional sale agreement. Kirk V. Crystal, 118 App. Div. 32, 103 N. Y. Supp. 17, aff'd 193 N. Y. 622. 1220 Abbott's Forms of Pleading tures were to be installed and which were thereafter duly installed in the building on said premises. II. That prior to the deUvery of the said fixtures, the said conditional bill of sale was duly executed and was duly filed with the [register of the county of Kings] on the day of , 19 .'" III. That [prior thereto and] on the day of , 19 , the said M. N. [owner] executed and de- livered to the defendant a mortgage on said premises as security for an indebtedness due from him. IV. That on or about the day of , 19 , the defendant brought an action to foreclose said mortgage, and thereafter, pursuant to a judgment of the court duly made therein, the premises were sold at public auction on or about the day of , 19 , and were bid in by the defendant, to whom the referee appointed in said foreclosure action to make the sale thereof duly executed deeds thereof on the day of , 19 , where- upon the defendant entered into the possession of the prem- ises. V. [That thereafter and on or about the day of , 19 , with full knowledge of the said conditional Taill of sale, and of the fact that the said fixtures had not been paid for, and without the consent and authority of the plaintiff, sold and delivered said fixtures to one O. P.] VI. That plaintiff thereafter duly demanded of the de- fendant the return and possession of the said fixtures, '-- which has been refused, and that the defendant claims title thereto. VII. That the value of the fixtures is the sum of dollars, no part of which has been paid to plaintiff, and that '2' If more than a year intervened ^-- Demand must be made of the between filing and alleged conver- purchaser at foreclosure after he re- sion, allege the due refiling under § 64 ceives the referee's deed; a prior de- of the Pers. Prop. Law, otherwise inand is ineffective. Shipley Const., the sale becomes absolute without etc., Co. v. Mager, 165 App. Div. 866, actual notice. Colwell Lead Co. v. 150 N. Y. Supp. 969. Home Title Ins. Co., supra. Actions for Conversion 1221 by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1129. By Lessor Against Lessee of Chattel After Expiration of Term. 123 I. That on or about the day of , 19 , plaintiff let to the defendant a certain [descrihe chattel] belonging to plaintiff, of the value of dollars, for the term of [one month from said date]. II. That prior to the day of , 19 , said term of letting fully expired, and plaintiff became and was entitled to the immediate return and possession of said [chattel]; that on said day plaintiff duly demanded of de- fendant the return of said [chattel], but defendant refused to return the same, and has wrongfully converted the same to his own use, to plaintiff's damage . dollars. Wherefore [etc., demnnd of judgment]. 1130. The Same, Upon Breach of Condition in Lease. ^^^ I. [Allege as in preceding form, continuing:] That in con- sideration of said letting defendant promised to pay the sum of dollars [weekly] for the use thereof; that it was also agreed by defendant, in consideration of said letting, that if he should fail to make any one of said [weekly] pay- ments when the same became due and payable, said lease and all of the defendant's rights thereunder should there- upon cease and determine, and plaintiff should be immedi- ately entitled to possession of said [chattel]. II. That on the day of ; 19 , the sum of dollars became due and payable by defendant "' Allegations framed with much '2* A complaint in substantially less particularity as to the term of this form, but framed to recover the letting, and its expiration, were property, was sustained against de- sustained against an objection at the murrer in Scofield v. Valentini, 46 trial in Gleason i>. Morrison, 20 Misc. N. Y. State Rep. 880, 19 N. Y. Supp. 320, 44 N. Y. Supp. 909. 225. 1222 Abbott's Forms of Pleading to plaintiff by the terms of said lease, but said sum was not paid by said defendant; that, by reason thereof, plaintiff became entitled to the return and possession of said [chattel]. III. [Allege subsequent demand of return and refusal, con- version and damage as in preceding form.] Wherefore [etc., demand of judgment], 1131. Against Purchaser of Mortgaged Chattels, After Conversion by Mortgagor.^'* I. That- on or about the day of , 19 , one M. N., of , was the owner and in possession of [briefly describe chattels] of the value of dollars. II. That while so possessed of the same, said M. N. executed and delivered to plaintiff a chattel mortgage thereon [oi', a conveyance intended to operate as a mortgage of said— chattels] '^^ bearing date the said day of , 19 , ^hereby he granted, bargained and sold to said plaintiff the said [chattels], [together with divers other personal property in said chattel mortgage described]. III. That said chattel mortgage contained the following clause: [quote, as] Provided always, and it is hereby agreed by the parties to these presents, that if the said mortgagor aforesaid shall and does well and truly pay unto the said mortgagee aforesaid, or to his executors, administrators or assigns, the just and full sum of dollars, and in- terest thereon from the date thereof, on the day of , 19 , that then and in that case the said mort- gage should be void. That said chattel mortgage also con- tained the usual clause or right to the said mortgagee to take possession of the said property and sell the same at public or private sale upon default in said payment, and also contained authority to said mortgagee to at any time '2* Conversion will lie. Sheldon v. See notes to Form 1168. McFee, 216 N. Y. 618. Action i^" The fact that the instrument sustained on this complaint in Ed- was on its face a bill of sale is not gerly v. Bush, 81 N. Y. 199. See, material, if it was filed and was in- also, Cone t. Ivison (Wyoming), tended to operate as a mortgage. 35 Pac. Rep. 933. Sheldon v. McFee, 216 N. Y. 618. Actions for Conversion 1223 take possession of said property whenever he should deem it necessary for his security so to do, or in case the said mort- gagor, or any person, should attempt to remove, secrete or dispose of the said property, or any part thereof. That the said mortgage was on the day of , 19 , duly filed in the office of the clerk of , that being the in which said M. N. resided on the day of execution thereof. ^^^ rV. That the said M. N., on the said day of , 19 , failed and neglected to make the aforesaid payment of dollars, agreed to be paid on said day by the terms of said mortgage. V. That after the execution and filing of said mortgage, said M. N. wrongfully removed said [chattels] from the said of and secreted them from this plaintiff; that thereafter, on or about the day of , 19 , the said [chattels] came into the possession of the de- fendant; that the said defendant well knew that they were subject to said chattel mortgage of the said plaintiff and that said mortgage had not been paid and that default had accrued thereon. ^^* VT. That while so in the possession of said defendant, plaintiff duly demanded the said [chattels] of said defend; ant; ^^' that the said defendant refused to deliver the same, '" The filing must be within a chattel mortgage, payable on de- reasonable time after execution and mand, may recover the property delivery of the mortgage; a month's from any one unlawfully taking delay in filing held to vitiate the away the same, without proof of mortgage. Troker v. Siegel-Cooper demand of the money due on the Co., 194 N. Y. 442. mortgage. As between the mort- '^ This allegation was included in gagor and the mortgagee, a demand the precedent, but was not sustained may be necessary; but as between by proof, and is not material when the mortgagee and a wrongdoer, the mortgage has been properly may be dispensed with. Brown v. filed, and refiled when necessary. Cook, 3 E. D. Smith (N. Y.), 123. See notes to Form 1168. Where, however, the sheriff is being 129 Where defendant is a bona fide sued for wrongful levy under an ex- purchaser a demand and refusal ecution against the mortgagor, the must be alleged. Gillet v. Roberts, complaint must allege that a demand 57 N. Y. 28. The mortgagee in a has been made upon the mortgagor. 1224 Abbott's Forms of Peeading but has since wrongfully [and fraudulently] removed the same beyond the limits of this State, and has secreted them from the plaintiff and converted and disposed of them to his own use. VII. That by reason of the premises, plaintiff has sus- tained damage to the amount of dollars. Wherefore [etc., demand of judgment]. 1132. Against Sheriff, who has Attached Under a Writ Subsequently Vacated, and who Then Refuses to Surrender. 1^° I. That at all the times hereinafter mentioned, defendant was [and now is] the sheriff of the county of II. That on or about the day of , 19 , in an action then pending in the Court, wherein one Lymau o. Bowc, 12 Daly (X. Y.), 281, 5 N. Y. Civ. Pro. R. 157. The terms of the debt for which the inor- gage was given need not be alleged. Rodgers v. Graham, 36 Nebr. 730, 55 N. W. Rep. 243. "" An action against a sheriff, who sei'es plaintiff's goods under process directed against another ^^erson, lies without demand, as the taking is tortious nb initio. Hill v. Page, 108 App. Div. 71, 46 N. Y. Supp. 277; Boulware v. Craddock, 30 Cal. 190. It is not necessary for plaintiff to aver the official character of defendant in such case; if defend- ant had any authority for taking plaintiff's property, he must set it up as a defense. Stevens v. Somerin- dyke, 4 E. D. Smith (X. Y.), 418. The forms given in the first subdi- vision of this chapter for wrongful taking, will be appropriate. See Form 1089. But where the original taking by the sheriff was lawful,' as for instance, under n warrant of attachment in force at the time and not void on its face, the subsequent vacating of the warrant should be followed by a demand on plaintiff's part for a re- turn of the property attached before suing the sheriff. See Bowe v. Wil- kins, 105 N. Y. 322, 329. For statutory provisions regarding substituting the sheriff's indemnitors as defendants, see X. Y. Code Civ. Pro., §§ 1421-1427. A levy under a warrant void on its face gives the o^vner a right of action against all persons participat- ing in the levy; a process apparently valid, though afterward vacated for irregularity, will protect the oflBcer acting in good faith under it, though it will not protect the party at whose instigation it was issued; a process, neither void nor irregular, protects the officer acting under its authority until it is set aside. For cases sus- taining these propositions see Kerr V. Mount, 28 N. Y. 669; Whele v. Butler, 61 id. 245; Day v. Bach, 87 id. 56; Boulware u. Craddock, 30 Cal. 190. Actions for Conversion 1225 M. N. was plaintiff and this plaintiff was defendant, the said M. N. caused a certain warrant of attachment to be issued by Hon. J. K., one of the justices of said court, directed to said defendant Y. Z., as such sheriff, and com- manding him in the usual terms thereof to attach and safely keep the property of this plaintiff to an amount not exceeding dollars in value [or otherwise briefly allege the substance of the writ]. III. That pursuant to said warrant, and on or about the day of , 19 , the said defendant, as such sheriff, did attach and take from the plaintiff's posses- sion into his custody, certain property of which plaintiff was the owner and consisting of [briefly describe] of the value of dollars. IV. That thereafter, and on or about the day of J 19 , such proceedings were had in said action, that an order was duly made and entered in said court va- cating and setting aside said warrant of attachment. V. That thereafter, and on or about the day of , 19 , this plaintiff duly notified the defendant of the setting aside of said warrant of attachment and de- manded of defendant the surrender and return of said [property], but defendant refused to surrender or return the same or any part thereof, and has wrongfully converted the same to his own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1133. Against Attorney for Conversion of Moneys Col- lected or Received by Him.'" I. That at all times hereinafter mentioned defendant was "' From complaint in King v. Mc- A complaint substantially in this Kellar, 94 N. Y. 317, where it was form, but omitting the allegation held that the cause of action stated that defendant had disposed of the in the complaint was not sustained money, was held to state an action by evidence that defendant had on contract, in Lange v. Schile, 117 negligently made a bad investment, App. Div. 233, 101 N. Y. Supp. 1080. resulting in loss of plaintiff's money. This decision does not seem in ac- 1226 Abbott's Forms of Pleading [and now is] an attorney at law, engaged in the practice of his profession at II. That heretofore at , and on or about the day of , 19 , plaintiff intrusted to the defendant, as such attorney, the sum of dollars, belonging to plaintiff, for the purpose of, and which de- fendant promised should be by him used for [state purpose, as:] investing the same in bond and mortgage upon real estate in for this plaintiff. III. That the defendant has not invested any of plain- tiff's said money, and has wrongfully converted and dis- posed of [or, applied and appropriated] the said money to his own use, and has refused to repay the same to this plaintiff, upon demand heretofore made by this plaintiff, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1134. By Seller to an Insolvent Buyer, Against Transferee of the Bills of Lading. [Sustained in Dows v. Kidder, 84 N. Y. 121.] 1^2 I. That plaintiff at the times hereinafter mentioned, and before, and ever since, has been a merchant doing business at as a produce commission merchant. II. That defendant Y. Z. was at the said times doing business at as a banker and broker, and as a buyer of exchange on foreign ports upon the security of bills of lading and otherwise. III. That one M. N. at and before the times hereinafter mentioned, was a merchant carrying on, at , the cord with Britton v. Ferrin, 171 the faith of the bills of lading; held, N. Y. 235; Jackson v. Moore, 94 _ that to the extent of the amount so App. Div. 504, 87 N. Y. Supp. 1101; advanced, he was entitled to pro- Quail V. Nelson, 39 App. Div. 18, tection as a bona fide purchaser. 56 N. Y. Supp. 865. An objection that conversion would See Forms 152 and 153, under not lie was made before the Court of Money Received. Appeals, but the court declined to "^ It was found on the trial before pass upon it, on the ground it was a referee that defendant had in good not raised before the trial court, faith advanced some money upon Actions for Conversion 1227 business of buying grain for shipment to foreign ports; and who realized the money to keep himself in funds or to pay for his purchases by sales of bills of exchange against ship- ments, with the bills of lading attached or on the deUvery thereof, with said bills of exchange. IV. That on or about the - day of , 19 , at said , the plaintiff agreed to sell, and said M. N. agreed to buy of the plaintiff [state contract as thus:] about 50,000 bushels of sound western mixed corn, to load two vessels, deUverable seller's option from store or afloat, de- livery to be taken by buyer during first half of August then next, as per sample, at 55 cents per bushel of 56 lbs., to be delivered in prime shipping condition to buyer's vessel or ^ store, payment to be made in cash on delivery. V. That thereafter, and on or about the and days of , 19 , the plaintiff, on the request of said M. N., caused to be delivered from the house of , at , upon and under said con- tract bushels of corn, which the plaintiff owned and had in possession on board the bark , then being in the port of , and bound for for orders. VI. That such delivery was made under orders from the plaintiff, for the delivery of said corn to said bark for the account of the plaintiff as the owner thereof; and said corn was, at said dates, so delivered from said warehouse in and on board said bark, -to be held for account of the plaintiff; and the plaintiff, in and according to the usual course of business in that behalf, received as the owner of said corn so delivered, the return of the measurer or weigher of said ware- house, dated , showing the delivery as aforesaid of said com, consisting of bushels, on board said vessel. VII. That the price to be paid for said bushels of corn, at 55 cents a bushel, with half weighing and screening, and blowing added as usual, amounted to dollars, for which a bill was rendered at the time of delivery of the measurer's return as next herein mentioned, for payment to be made in cash. 1228 Abbott's Forms op Pleading VIII. That the day of said bemg steamer day, so called in the trade, or the day for the sailing of said vessel, when, in and according to the usual course of the business, parties shipping realize on sale of exchange on security of the bills or bills of lading, the plaintiff on that day, at about ten and a half o'clock a. m., made a conditional or temporary delivery of said com so delivered on board said vessel as aforesaid, by the dehvery of said weigher's return thereof indorsed by the plaintiff, to said M. N., the title to said corn being conditioned in anjl according to the usual course of the business in this shipping trade, in like cases of sales for shipment at the New York Produce Exchange and elsewhere in New York, and by reason of an express agree- ment between said M. N. and the plaintiff, under which said delivery was made, not to pass until the payment of said price in cash, for the purpose of enabling' said M. N. to re- ceive the bill or bills of lading for said corn, in trust for the plaintiff, and to sell the same or bills of exchange on the security thereof for cash to raise the money to pay for the corn, and to pay the plaintiff, with the proceeds, and upon the trust and confidence that he would do so as he had done in former transactions with the plaintiff, and in and according to the usual course of the business in such cases as aforesaid. IX. That the said M. N. at the time and as an induce- ment to the delivery of the said measurer's return to him, promised to pay for said corn by check in the afternoon of the same day, and that upon plaintiff's clerk calling for such pajTnent on said afternoon the payment thereof was refused, and he was told that said M. N. had failed, and thereafter on demand of said corn, or of the bill of lading therefor being made upon said M. N., the same was refused. X. The plaintiff alleges as an additional and further ground of defect of title of said M. N. that he was in fact, and knew himself to be, insolvent at the time of the procuring of said delivery of the aforesaid return, and that thi^ fact was fraudulently concealed by him from the plaintiff, and that Actions for Conversion 1229 the delivery and possession of said corn and of said weigher's return therefor was obtained by him as aforesaid, with intent to appropriate the same for other uses and without paying plaintiff therefor. That said M. N., upon obtaining possession of said measurer's or weigher's return as aforesaid, and before the time appointed for payment for said corn by check as aforesaid on said day of , 19 , procured bills of lading for the shipment of said plaintiff's com in the name of said M. N., as the shipper, and trans- ferred the same to said defendant Y. Z. without value re- ceived thereon on the faith thereof, or upon some misappro- priation, and not upon any sale thereof to said defendant Y. Z. for payment made in cash, nor for any advance of cash made by defendant Y. Z. by purchase of the bill or bills of exchange attached thereto or delivered therewith or other- wise, upon the faith or security thereof, or of the property covered thereby upon such transfer, and that said transfer to said defendant Y. Z. was wrongful, and transferred no title to said defendant as against the plaintiff to said corn or said bill of lading. XI. That thereafter, and on or about the day of ,19 , the plaintiff demanded of said Y. Z., then being in possession of said corn, or of the bills of lading therefor, said bushels of corn, which were delivered as aforesaid on board said bark , as sold by them for cash to M. N., for which measurer's returns were delivered by the plaintiff upon condition or in trust to procure bills of lading to attach drafts to raise the money to pay for the corn in the bills of lading therefor, or that he, the said Y. Z., should agree to account to the plaintiff for the value or for the proceeds of the corn. XII. That the said defendant Y. Z. neglected and refused, and has hitherto neglected and refused, to comply with any of the said demands, and has wrongfully converted to his own use said corn of the plaintiff, and has disposed of the same, being of the value of dollars, with interest 1230 Abbott's Forms of Pleading from said day of , 19 , to the damage of these plaintiffs to said sum and interest. Wherefore [etc., demand of judgment]. 1135. For Conversion of Goods Upon Which Plaintiff has a Lien under Foreign Law. [Sustained in Williams v. Finley (Ohio), 11 Cinn. Weekl. Bull. 44.] I. That on or before the day of , 19 , one M. N. occupied the premises of the plaintiff in the city of , in the State of , known as No. street, as the tenant of the plaintiff, under a lease [briefly describing it], and that on said day there was due and in arrear to plaintiff, from said M. N., as rent for said premises under said lease dollars. II. That [here state the provisions of law relied on, or allege it according to the legal effect as thus] '^' by the law of said State of , a lessor is entitled to a lien on the goods and chattels of the lessee upon the premises for rent due and in arrears [etc.], and entitled to distrain the same; and that on or about the day of , 19 , plaintiff, in accordance with said law, duly distrained [an organ, of the value of dollars], then belonging to said M. N. and being in and upon said premises, as a distress for the rent due as aforesaid, whereby under said law plaintiff acquired a lien upon said organ for the payment of said sum of dollars. III. That while plaintiff's lien was subsisting upon said organ, the defendant, without the knowledge or consent of the plaintiff, removed the said organ from said State, and unlawfully converted and disposed of the same to his use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. "' See Forms 1296-1302 under Chapter on Pleading a Foreign Law. Actions for Conversion 1231 1136. By Corporation Against Officers or Trustees for Appropriation of Its Property. [From complaint in Saranac, etc., R. Co. v. Arnold, 167 N. Y. 368.] ^'* I. [Allege corporate capacity of plaintiff, as in Form 44]; That at the times hereinafter mentioned the defendapt, W. X., was its president and one of its directors, and the defendant, Y. Z., was its treasurer, and also one of its di- rectors. II. That between the day of , 19 , and the day of , 19 , defendants received and collected certain money belonging to plaintiff amounting to dollars, and wrongfully withheld and retained the same from plaintiff for their individual use and benefit, no part of which has been paid to the plaintiff though payment thereof has been heretofore duly demanded of each of the defendants. III. That defendants collected said money by means of their powers of officers of plaintiff, and by means of their fiduciary relation to plaintiff. IV. That plaintiff has suffered damage in the sum of dollars. Wherefore [etc., demand of judgment]. 1137. By Municipality, Against One who Wrongfully Obtains its Public Moneys Through Misconduct of Public Officer.155 I. That on or about the day of , 19 , "* Where judgment dismissing the tended to establish the right to re- complaint was reversed and a new cover under the allegations of fraud trial ordered. contained in the complaint." Held, '** Of this complaint, the court in on afSrmance of judgment for plain- Mayor, etc., of N. Y. V. Sands, 39 tiff, that one who receives from a Hur (N. Y.), 519, say: "It can public officer a check which the law hardly be doubted that these allega- requires the latter to deposit, and tions are of a cause of action sound- who collects the money thereon for ing in fraud, and one of the principal his own use, obtains the money questions presented on the appeal is wrongfully and fraudulently. (The whether the evidence in the case judgment was reversed in the Court 1232 Abbott's Forms of Pleading the said defendant was one of the commissioners of taxes and assessments for the city of , and one R. B. C, was comptroller of the city of II. That on or about the day and year last aforesaid; at the said city of , one M. N. made his certain draft bearing date on that day, whereby he requested the Lank to pay to the order of the comptroller of the city of the sum of dollars, and then and there delivered the same to the said comptroller, fbr the use and benefit of these- plaintiffs and in payment for certain con- solidated stock of the city of , which it was then and there agreed by and between the said comptroller and the said M. N. should be thereafter issued and delivered to the said M. N. by said comptroller. That the said comp- troller of the city of did thereafter issue and deliver to the said M. N. the consolidated stock of the said county of , so agreed to be used and delivered aforesaid. III. That the said R. B. C, comptroller as aforesaid, did not apply the said draft, nor the sum of money therein mentioned, nor any part of said sum to the use or benefit of these plaintiffs, but on the contrary thereof he, the said R. B. C, with intent to cheat and defraud these plaintiffs out of the said sum of money in said draft mentioned, and with intent that the said defendant should apply the said draft, and the sum therein mentioned, to his own use, did thereafter, and on or about the day and year last aforesaid, at said city of , indorse said draft as comptroller as aforesaid, and did willfully and corruptly deliver the same so indorsed to the said defendant. That said defendant, then and there well knowing that the same had been made and delivered to said C. for the use and benefit of these plaintiffs, wrongfully and corruptly, and with intent to of Appeals, but upon the ground that See, also, a similar action brought the statute requiring deposit of by the People under statutory au- checks by comptroller was not ap- hority, -post, Chapter LVIII, under plicable to this particular transaction. Actions Given by Statute. 105 N. Y. 210.) Actions for Conversion 1233 cheat and defraud these plaintiffs out of the said draft and the said sum of dollars therein mentioned, received and accepted the said draft from the said C, and afterwards obtained from the said bank the said sum of dollars therein mentioned, and appUed the same to his own use and benefit. IV. That plaintiffs have demanded the said sum of dollars from the said defendant, but no part thereof has been paid, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1138. By Assignee of Borrower against Corporation which has Exacted Usurious Interest for Loans, and Re- newals of Loans, on Pledged Property; Allegations that ' Commissions Charged were in Fact Interest. [Sustained in Merchants' Exchange Natl. Bank v. Com- mercial Warehouse Co., 49 N. Y. 635.] "^ I and II. [Allege plaintiff's and defendant's incorporation and business as in Forms 44, etc.] III. That on or about the day of > 19 , one M. N. was the owner of [description of goods] over which the defendant warehouse company claims to exercise con- trol by virtue of certain warehouse receipts for the same lodged with it by the said M. N., by way of pledge or other- wise. That being so owner of said [property], and indebted to the plaintiff, the said M. N., on the said day of , 19 , did, in consideration of such indebtedness, sell, assign, transfer and set over the said [property].to said plain- tiff, with authority to reclaim the same, and to take all law- ful ways and means for its recovery by suit or otherwise."^ "» It is well settled that, in plead- Tyler, 21 N. Y. 567; Dagal v. Sim- ing usury, the allegations are strictly mons, 23 id. 491; Griggs v. Howe, construed, and facts must be stated 31 Barb. 100. which are not susceptible of any "' A purchaser, or assignee of prop- other construction than that the erty subject to an usurious lien may transaction was of an usurious char- attack the lien on that ground. a6ter. See Myers v. Wheeler, 24 Mason v. Lord, 40 N. Y. 476; Mer- App. Div. 327, 48 N. Y. Supp. 611, chants', etc.. Bank v. Commercial aff'd 161 N. Y. 637; Manning v. Warehouse Co., supra. 1234 Abbott's Foems of Pleading IV. That the said claim of the defendant company is as follows, and not otherwise, to wit: That the said M. N., on or about the day of , 19 , appUed to the said company for an -advance or loan of money upon the pledge of certain warehouse receipts for [property] when held by the said M. N., and the said company thereupon made him such advance amounting to dollars. That said M. N., from time to time, thereafter appUed to said company for further Hke advances on similar pledges of warehouse receipts, and the said company made to him such advances, amounting together to a large sum, to wit, to more than dollars. That such advances of smaller sums were, from time to time, consohdated into larger ones, and from time to time renewed, the notes of said M. N. being given for each advance when made, and for each renewal thereof; that some of the [property] on which such advances were made was, from time to time, redeemed and withdrawn from said company, payments being made to said company at the time; that the advances so made by said company were at first made generally for days, and occasionally for shorter periods, and at the time of each advance, and of each renewal thereof, on the maturity of the previous advance, a charge of one per cent, on the amount of the debt, was made, in addition to interest at the rate of [six] per cent for the period for which the loan was renewed. That on the day of , 19 , the said company claimed that the balance due them on account of all such previous transactions was dol- lars, and thereupon the said company required of said M. N. that he should, as a condition of forbearing payment of said alleged indebtedness for a further period of days, execute, and he did thereupon execute and deliver to said company, a promissory note whereby he promised to pay to said company the said sum in days from that date, and also fm-ther required that he, the said M. N., should execute, and he did accordingly execute and deliver to said company, a paper, of which the following is a copy: Actions for Conversion 1235 [Setting forth agreement pledging the property in question as security for the note.] V. That the [property] in said paper mentioned is the same transferred as aforesaid by the said M. N. to the plaintiff, and is of the value of dollars. VI. That on the day of , 19 , the plain- tiff owner demanded of the said defendant company the surrender and the delivery of the said [property] to the said plaintiff, claiming, in and by said demand, that the charges of interest and commissions which the said defendant com- pany had made in the said transactions were usurious in their character, and not authorized by the charter of said company, and that the alleged indebtedness for which said company claimed to hold the said [property] was void, but offering to pay all legitimate charges the company might have incurred in or about the safekeeping of the said prop- erty in way of storage, insurance, cartage, handling or the like, but the said warehouse company refused and still re- fuses to surrender and deliver over the said property, in ac- cordance with such demand. VII. [// there is any provision in the defendant's charter which may affect the question, allege it, as:] That in and by the charter of the defendant, the said company, it is prohibited from charging, taking or receiving interest at a greater rate than [six] per cent per annum on advances made by said company, and although the said company is authorized by its said charter to charge commissions for the management, charge or custody of personal property on which, or on the pledge of which, it may make advances, yet such commissions are, by the true intent of said charter, a compensation for reasonable care and diligence for such management, charge or custody; whereas this plaintiff al- leges that in all the transactions above stated with the said M. N., the [property] upon which the advances were made was never in the actual charge or custody of the said com- pany, but the said company required of the said M. N. that the same should be kept on storage at his own expense, with 1236 Abbott's Forms of Pleading other parties, and it was so kept. And the said company made its advances upon the warehouse receipts or evidences of such storage; and upon each and every advance made by the said company upon the pledge of such receipts, in- stead of assuming any management, charge or custody of such [property], expressly exempted themselves by condi- tions similar to those expressed upon the paper above set forth, from all Uability for loss or injury which might hap- pen to the same from any other cause than the gross negli- gence of the said company or its agents; that the charges of commissions upon the money so loaned and advanced, which charges were renewed at short periods of days, or less, upon each renewal or continuance of said ad- vances, were merely colorable devices to evade the restric- tions of the said charter of the defendant against taking or receiving more than [six] per cent interest, and were con- trary to the provisions of law, whereby all deposits of goods, or other things whatsoever, whereupon or whereby there shall be reserved or taken or secured any greater sum or greater value for the loan or forbearance of any money, goods or things in action, than at the rate of [six] dollars upon one hundred dollars for one year, shall be void; that by the said charges of interest and commissions, the said company re- ceived and charged for the loans and advances so made as aforesaid, a rate of interest exceeding [six] per cent per annum, contrary to the form and provisions of the statute in such.case made and provided, and in violation of the re- strictions of said charter. . VIII. That by reason of the premises the defendant company Kas wrongfully and unlawfully converted said [property] to its own use, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. Actions for Conversion 1237 The Measure of Damages in Conversion, and in Trespass and Replevin. First. Plaintiff the owner of the propeett Marketable, and fluctvating in value The doctrine laid down in Romaine v. Allen, 26 N. Y. 309, that if the thing has a fluctuating value and rises after the conversion, the plaintiff may re- cover the. highest market price down to the conclusion of the trial, is modified by later decisions, as follows: Restricted to highest value within a reasonable time for repurchasing after learning of conversion, on theory that this affords reasonable indemnity (m case of no enrichment of defendant at plaintiff's expense). Mayer v. Monzo, 221 N. Y. 442; Mullen v. Quinlan & Co., 195 N. Y. 109; Burnham v. Lawson, 118 App. Div. 389, 103 N. Y. Supp. 482; Barber v. EUingwood, 137 App. Div. 704, 122 N. Y. Supp. 369; Baker v. Drake, 53 N. Y. 211, 222. (Stocks carried on a margin for speculation.) Wright v. Bank of Metropolis, 110 id. 238. (Stocks held as investment and pledged to defendant as collateral security.) What is a reasonable time upon purchases which can be made on the stock exchanges is a question of law; eight days conceded to be reasonable as a matter of law in Matter of Dickinson, 171 App. Div. 488, 157 N. Y. Supp. 248; nine days from notice of conversion held reasonable in Keller v. Halsey, 130 App. Div. 698, 115 N. Y. Supp. 564; thirteen days, in Burnham v. Lawson, 118 App. Div. 389, 103 N. Y. Supp. 482; thirty days, in Burnham v. Lockwood, 71 App. Div. 301, 75 N. Y. Supp. 828. When customer immediately notifies brokers that he will hold them respon- sible, he can only claim highest price reached at the time of his determination. Hurt V. MiUer, 120 App. Div. 833, 105 N. Y. Supp. 775, aff'd 190 N. Y. 553. Complaint dismissed where price of securities shown to have been lower during a period of months after conversion and notice. Peschke v. Wright, 93 Misc. 154, 156 N. Y. Supp. 773. This (called the New York rule) has now been adopted by the courts gen- erally throughout the country. If, however, between the time of the conversion and its discovery by plaintiff the stocks have declined in value, plaintiff is entitled to the value at the time of the conversion, less any amount unpaid on the stock; for any other rule would unjustly enrich the defendant at plaintiff's expense. Mclntyre v. Whitney, 139 App. Div. 557, 124 N. Y. Supp. 234, aff'd 201 N. Y. 526. For notes on the very variable rules applied where value of property has been increased by act of the wrongdoer, see 33 Am. Rep. 282, 54 id. 421. Marketable; but not specially fluctuating The plaintiff can recover the value of the thing at the place and at the time of the conversion, with interest. Corn Exch. Bank v. Peabody, 111 App. Div. 553, 98 N. Y. Supp. 78; Mclntyre v. Whitney, 139 App. Div. 557, 124 N. Y. Supp. 234, aff'd 201 N. Y. 526. If in transitu, the value at its destination, less expense of transportation and of sale. Waliingford v. Kaiser, 191 N. Y.,392 (horses, en route for Liverpool, converted at Buffalo). As against common carriers, where goods are lost in transit, or are damaged or destroyed, their value at their destination is recoverable. Holden v. N. Y. Central R. Co., 54 N. Y. 662. Enhanced value because article has been installed may be recovered, but not unless plaintiff shows right to continue article where installed. See Fleisch- mann v. Samuel, 18 App. Div. 97, 45 N. Y. Supp. 404. Kennedy v. Strong, 14 Johns. (N. Y.) 128. Conversion of merchandise, and, as it appeared that the goods were converted in a foreign port, at the place as well as the time of the conversion. [In Trespass for taking logs, measure held to be value the moment severed, 1238 Abbott's Foems of Pleading not standing, nor when carried to market. Gushing v. Longfellow, 26 Me. 306. See fifth at the end of this article.] Fort V. Saunders, 5 Heisk. (Tenn.) 487. Conversion of cotton; value at place of conversion ascertained by evidence of market price at nearest accessible market, less transportation; s. p. Hamerv. Hathaway, 33 Cal. 120. Conversion of hay, value at place of conversion allowed. Hisler v. Carr, 34 Cal. 645. Hopper V. Smith, 63 How. Pr. (N. Y.) 64. Conversion of receiver's certif- icate. Held, also, that a wrongful sale by the pledgee did not require the pledgor to treat the act as a conversion, and thus entitle the pledgee to Umit the damages to market value at that time, but plaintiff may, after a subse- quent tender agreeable to the contract, recover the value as at the time of the tender and refusal. Keller v. Paine, 34 Hun (N. Y.), 167, 176. Conversion of a canal boat; also held, that if the thing is converted where there is no market, witness may prove salable value at places reasonably near, and {it seems) that value may be recovered. Andrews ?'. Durant, 18 N. Y. 496. Also held, that the price to be paid by the plaintiff's assignor to the defendant cannot control against plaintiff's claim to recover the highest actual value. Kilpatrick v. Dean, 4 N. Y. Supp. 798; s. c, 15 Daly, 182, 197, aff;g 3 N. Y. Supp. 60. Conversion of merchandise where it is held that the rule in Wright V. Bank, supra, that plaintiff may recover the value of stocks at the time of, or within a reasonable time for, repurchasing after conversion, could not be invoked by defendant where plaintiff had been allowed to recover a less value at the time 'of conversion. Whether the rule applies to commodities as well as securities, query. [In Trespass for taking a shopkeeper's stock of goods, the value is cost at wholesale, not at retail. Wehle v. Haviland, 69 N. Y. 448. There seems no reason why the rule in conversion should not be the same unless the conversion profited defendant at a higher than wholesale rate.] [In Trespass, punitive damages may be allowed, where defendant's behavior was reckless and high-handed. SmaOing v. Jackson, 133 App. Div. 382, 117 N. Y. Supp. 268.] [In Replevin the value is assessed as at the time of trial. Allen v. Fox, 51 N. Y. 562 (horse); N. Y. Guaranty Co. v. Flynn, 55 id. 653 (bales of cotton); Button V. Chapin, 7 N. Y. Civ. Pro. II. 278 (machinery); Brewster v. Silliman, 38 N. Y. 423 (boat), and general rule stated in N. Y. Code Civ. Proc, § 1726.] Choses in action. On conversion of a promissory note of plaintiff, held, that he might recover the amount paid by him in compromising a judgment obtained on the note, and, it seems, counsel fees necessary in effecting the compromise. Hynes v. Patterson, 95 N. Y. 1, 6. But held error to instruct jury that measure of damages is amount of note and interest, where defendant had compromised a note sent to him for collec- tion by plaintiff, after it had been shown defendant made an unsuccessful effort to coUect it, and evidence had been given of the maker's insolvency. Turner v. Retter, 58 111. 264. For conversion of note of third person, the amount due thereon with interest is prima facie the measure of damages, but defendant may show in reduction the maker's insolvency, or other fact impairing the value. Griggs i'. Day, 136 N. Y. 152. [In Replevin for a check, the face value held to be prima facie value. 2 Misc. 252; s. c, 50 State Rep. 341, 21 N. Y. Supp. 950.) For an incomplete instru- ment, the value is nominal, and any other damages must be for detention. Davis Sewing Machine v. Best, 105 N. Y. 59, or for the wrong done in taking. Id. No market value (a) Value to owner. For loss of box of photographic negatives of foreign travel proof admissible of their nature, cost of obtaining, purpose for which procured, difficulty of re- Actions for Conversion 1239 placing, and value to owner. Walmsley v. Atlas Steamship Co., 50 App. Div. 199, 63 N. Y. Supp. 761, rev'd on ano. point, 168 N. Y. 533. Value of tenant's fixtures, retained by landlord, fixed at what they would be worth to tenant when removed, not what they were worth to the landlord as installed for use in the business. Johnston v. Alb. Dry Goods Co., 12 Add Div 608, 43 N. Y. Supp. 164. ^^ For conversion of manuscript containing names of customers of plaintiff, it being shown that reproduction is impossible, and that it has no definite value, such a sum as may be fixed by the jury in its discretion, but neither inadequate nor excessive. Jaft v. Smith, Gray & Co., 76 Misc. 283, 134 N. Y.' Supp. 1011 (reviewing many authorities) . For usable property having no marketable value, such as electroplates, the actual value to the owner having use for them, in estimating which "proof of the cost of the plates and the cost of replacing them, and that the plates had a use which was a valuable one, and all proof in reference to the usefulness of the plates to the plaintiff, is material and relevant." Heald v. Macgowan, 15 Daly, 236, 5 N. Y. Supp. 450; Lovell v. Shea, 60 Super. Ct. 412, 18 N. Y. Supp. 193. (6) Or, if of a nature not to be adequately replaced, plaintiff's prelium affeclionis, if defendant knew it (picture). Frankinstein v. Thomas, 4 Dalv (N. Y.), 256. H ^ , y (c) Or, the cost of replacing it, and the value for a particular use (mean- while), Leonicini v. Post, 37 N. Y. State Rep. 255, 13 N. Y. Supp. 825 (sheet music with transcriptions), with interest, of course, on both. ^Tiere the thing (electroplates) had been sold by defendant to plaintiff's assignor, held that the jury had a right to infer that the price paid was the value, they being then second hand — rather than their value as old metal, even though there was no evidence of any intent to use them, or that any other person needed them. Heard v. Van Siclen, 37 N. Y. State Rep. 187. Only nominal damages can be given in absence of evidence of value. So held, even though there was evidence of a sum that plaintiff had paid on account for the thing — a sewing machine. Whitmark v. Lorton, 29 N. Y. State Rep. 322. (But query?) [In Replevin for a thing of value, undemonstrated at time of taking (a pat- ented machine), value at time of trial was held to control, although by that time it had been found to be of mere nominal value. Scattergood v. Wood, 14 Hun (N. Y.), 269.] Interest on value in any of the above cases is: In Conversion matter of right. Andrews v. Durant, 18 N. Y. 496; McCor- mick V. Penn. Ry. Co., 49 id. 303, 315; Einstein v. Dunn, 61 App. Div. 196, 70 N. Y. Supp. 520, aff'd 171 N. Y. 648. Valne of use cannot be allowed in conversion, in the absence of any notice of such a claim and of special circumstances warranting it. See Dakin v. Elmore, 127 App. Div. 457, 111 N. Y. Supp. 519 (tools and machinery) ; Prior v. Morton Stables, 43 App. Div. 140, 59 N. Y. Supj). 287. Such usable value allowed in Johnson v. Marks, 66 Misc. 153, 121 N. Y. Supp. 294; Alexander v. Osbom, 21 N. Y. Weekly Dig. 298 (horse converted by wrongful sale). [In action for breach of contract in not retummg stock pledged, dividends declared between the deposit and demand may be recovered as a part of the, damages necessarily resulting from the breach of contract. Briggs v. Kennett, 8 Misc. 269; s. c, 28 N! Y. Supp. 540.) [Plaintiff in Replevin for a thing of no usable value may have interest on the value at the time of taking, computed from that time during defendant's possession. Dictum in Allen v. Fox, above cited; Follett Wool Co. v. Utica Trust, etc., Co., 84 App. Div. 151, 82 N. Y. Supp. 597. [In the absence of any evidence that damages are more or less than interest on the value, interest is the prima faire measure of damages for detention. N. Y. Guaranty Co. v. Flynn, 53 N. Y. 653. So, also, where the article was not one which had been, or probably would be, in use, such as a newly pat- ented machine, although capable of use, and which rightfully came into de- 1240 Abbott's Fobms of Pleading fendant's possession under contract to sell or return. Redmond v. Am. Mfg. Co., 121 N. Y. 415.1 [In Conrad v. Pacif. Ins. Co., 6 Pet. (U. S.) 262, 282, in trespass for seizure of a large quantity of teas, interest was allowed only from the expiration of the usual credit on extensive sales, but the point does not seem to have been contested.] [In Trespass, if the thing was bought in at sale, damages include amount paid, with interest. Baker v. Freeman, 9 Wend. (N. Y.), 38; Deluce v. Kelly, 5 N. Y. Weekly Dig. 32; or for a third person's bid, taken over by plaintiff. Bedell v. Barnes, 17 Hun (N. Y.), 350.] Expense incurred. General claim for legal service not allowed in Replevin. Cook V. Gross, 60 App. Div. 446, 69 N. Y. Supp. 924. Loss of Profits not allowed. Moravec v. Grell, 78 App. Div. 146, 79 N. Y. Supp. 533; Wehle v. Haviland, 69 N. Y. 448 (conversion of stock of goods). Loss from interruption of plaintiff's business. Bodey v. Reynolds, 82 B. 779. (Carpenter's tools; stoppage of plaintiff's business alleged.) II. Where the thing lias been returned Return (except in Replevin) is considered only in mitigation of -damages. Damages recoverable: (1) In conversion, the highest value of the article from the time of conversion to time of its return, with interest from time of conversion, less the value of the article when returned and interest from day of return. Flagler v. Hearst, 91 App. Div. 12, 86 N. Y. Supp. 308. Where it was shown that plaintiff was hiring out the property (an auto- mobile) to others for profit, the value of the use prior to its return is recover- able. Johnson v. Marks, 66 Misc. 153, 121 N. Y. Supp. 294. Reasonable expenses, and value of time lost, in searching for the goods. McDonald v. North, 47 Barb. (N. Y.) 531. [So, also, in Trespass, Bennett v. Lockwood, 20 Wend. (N. Y.) 222, and in ascertaining defendant's claim, and making demand, if necessary. Park v. McDaniels, 37 Vt. 394.] [In Trespass, depreciation is considered, and usable value during detention, or expense of hire of a substitute is allowed. Clinton v. Townsend, 1 N. Y. Sup. Ct. (T. & C.) 330.] (2) Plaintiff in Replevin may have depreciation in value between time of taking and time of trial, whether from fluctuation in price [Allen v. Fox, 51 N. Y. 562; Brewstel- v. Silliman, 38 id. 423; N. Y. Guaranty Co. v. Flynn, 55 id. 653; Rowley v. Gibbs, 14 Johns. (N. Y.) 384] or from inherent causes. Young V. Willctt, 8 Bosw. 486. But not natural depreciation and also value of use of usal)le property. Odell v. Hole, 25 111. 204. [In case of an article of undemonstrated value, ascertained by the time of trial to be of mere nominal value, plaintiff in replevin may have besides nom- inal value, the expenses incurred in constructing another nke it, before useless- ness was discovered, together with interest therein, as damages for detention. Scattergood v. Wood, 14 Hun (N. Y.), 269. As to necessity of specially alleging depreciation compare Young v. Willett, 8 Bosw. (N. Y.) 486; Stevenson v. Smith, 28 Cal. 103.] Plaintiff in Replevin for a thing of usable value may have the value of use during defendant's possession. Allen v. Fox (above cited) ; Slocum v. Delano, 17 N. Y. Weekly Dig. 207. But not in case of an article of peculiar use like a steam engine, without showing that he was in a position and intended to use it. Barney v. Douglass, 22 Misc. (N. Y.) 464. Nor if he was a pledgee, without showing a right to use it. McArthur v. Howell, 72 111. 359. But in Twinam V. Swart, 4 Lans. (N. Y.) 263, value of use asked by a plaintiff guilty of con- cealment, against a bona Jide purchaser, was refused. In Replevin, in addition to value at time of trial, plaintiff may perhaps have reasonable expenses and loss of time in searching, if specifically alleged; but not counsel fees nor time spent in securing writ of replevin. Blackwell v. Acton, 38 Ind. 426. • ' Actions for Conversion 1241 [Sheriff's expenses of taking and removal are not allowable as damages, but are to be added as costs. Young v. Atwood, 5 Hun (N. Y.), 234.] Second. Plaintiff having special property Goods not returned. If defendant is general owner, value of plaintiff's special property. Parish v. Wheeler, 22 N. Y. 494, 515; Clark v. McDuflie, 49 N. Y. State Eep. 535; s. c, 21 N. Y. Supp. 174. Mortgagee, for conversion by purchaser at execution sale under judgment against mortgagor, cannot recover the value of the property but only the amount of debt with interest and expenses for care of property. [So, also, in Replemi, Allen v. Judson, 71 N. Y. 77; Town- send V. Bargy, 57 id. 665; Fowler v. Haynes, 91 id. 532.] If defendant is a mere "wrongdoer," full value; Merchants', etc., Bank v. Mechanics' Bank, 60 N. Y. 40, 52 (and plaintiff will be liable to account to the general owner for, his share of the proceeds of recovery; Id.). Bigelow v. Goble, 9 App. Div. 391, 41 N. Y. Supp. 316 (plaintiff a chattel mortgagee). So also in trespass; Campbell v. Connor, 70 N. Y. 424; Alt v. Weidenburg, 6 Bosw. (N. Y.) 176, where a thing deposited with defendant by his leave was sub- sequently carried away by him because his unfounded claim for storage was not paid; if a "stranger having no interest in the property," full value; Leon- icini V. Post, 37 N. Y. State Rep. 255. [So, also, in Replevin, Frei v. Vogel, 40 Mo. 150.] Third. Plaintiff the owner, subject to lien, etc. Where defendant held a chattel mortgage, the value of the property, less any unpaid amount due on the mortgage. Fischman v. Levin, 83 Misc. 107, 144 N. Y. Supp. 674. Pledgor against the pledgee selling whole when a part would have been sufficient to satisfy lien; value of goods sold beyond sufficient to satisfy lien and expenses of sale. Davis v. Morrell, 16 N. Y. Weekly Dig. 530. [In Trespass the value of defendant's special property must be deducted from the value of the thing.) Fourth. Plaintiff a mere custodian A statutory receiver, at suit of a judgment creditor in supplementary pro- ceedings, may recover at least so much of the fund as is needed to pay the judgment, the costs of the supplementary proceedings, the costs of the action, and the receiver's disbursements and commissions. O'Connor v. Mechanics' Bank, 54 Hun (N. Y.), 272, modifying 21 Abb. N. C. 383. When a receiver is a mere custodian and when he has title, see 19 Abb. N. C. 359. [In Trespass, value of the use; or, if custodian was continuing business with the thing, the loss suffered by interruption, but not depreciation in value. Farnsworth v. Western Un. Tel. Co., 6 N. Y. Supp. 735, 749. (Common-law receiver. But Query?) [In Replevin, for a check interest on face value was allowed. Merchants' & Co. V. Goodrich, 75 111. 559.] Fifth. Value enhanced by act of wrongdoer The proper rule where there has been an enhancement of value by act of the wrongdoer done in good faith, is a point of much difference of opinion. For recent cases see Sonmier v. Adler, 36 App. Div. 107, 55 N. Y. Supp. 483; Dyke V. Nat. Transit Co.. 22 App. Div. 360, 49 N. Y. Supp. 180; Palestine, etc., Co. v. Terminal Wareh. Co., 67 Misc. 456, 123 N. Y. Supp. 346; Carpenter v. Lengen- felter (Neb., 1894), 60 N. W. Rep. 1022, where previous cases are reviewed. The New York rule seems to be that the plaintiff will be allowed compensatory damage only. See, also, Suydam v. Jenkins, 3 Sandf. (N. Y.) 619; Silsbury v. McCoon, 3 N. Y. 379. CHAPTER XXXIX COMPLAINTS FOE INJURIES TO PERSONAL PROPERTY OTHER THAN FOR CONVERSION \For a comparison of the rules governing the measure of damages in Trespass, Conversion and Replevin, see ante, page 1S37.] PAGE I. Trespass de bonis asportatis. 1139. For seizing and carrying away plaintiff's goods 1242 1140. The same, plaintiff having regained possession before suit brought 1243 1141. For seizing plaintiff's vessel 1244 1142. Against sheriff for excessive levy under warrant fo attach- ment 1244 1143. By mortgagee of chattels against sheriff for selling them on execution against mortgagor after default 1245 II. Other injuries to chattels. 1144. For malicious injury to property 1248 1145. For maliciously shooting plaintiff's dog 1248 I. TRESPASS DE BONIS ASPORTATIS 1139. For Seizing and Carrying away Plaintiff's Goods.^ That on or about the day of , 19 , at 1 It is not necessary for plaintiff son. It is not necessary to set forth to anticipate and avoid possible de- the sheriff's official capacity. Curtis fenses which amount to a justifica- v. Fay, 37 Barb. (N. Y.) 64. A tion. A prima facie case is estab- process being void, the party who lished when plaintiff proves that sets it in motion, and all who aid defendant seized his property; the de- him, are trespassers ab initio. Day fendant must then take the burden v. Bach, 87 N. Y. 56; Kerr v. Mount, of establishing the further facts which 28 id. 659. authorized such seizure. See Gray The usual order of proof in an ac- V. First Division, etc., R. Co., 13 tion against a sheriff for wrongful Minn. 315; Atchison, etc., R. Co. v. levy is thus described in Abb. Trial Weaver, 10 Kan. 344. Ev. 797, with cases cited to sustain: Such a form as is here given will "The plaintiff proves the act of tak- be appropriate against a sheriff sued ing, etc., and the damages, and rests. for a levy under void process, or a Defendant then proves his allegar process directed against a third per- tions that he, or one of several de- 1242 Trespass to Personal Property 1243 , the defendant wrongfully and unlawfully seized and took from the possession of the plaintiff, and carried away [briefly designate the goods] which were then and there the property of the plaintiff, of the value of dollars, and has destroyed qr disposed of the same,^ to plaintiff's damage dollars.^ Wherefore [etc., demand of judgment], 1140. The Same, tiie Plaintiff Having Regained Possession Before Suit Brought. I. That on or about the day of , 19 , at , the defendant unlawfully seized and took from the possession of the plaintiff, and carried away [briefly desig- nate the goods], which were then and there the property of the plaintiff, of the value of dollars, and unlawfully detained the same from the plaintiff, until about the day of , 19 . II. [// the property has a usable value, e. g., a horse, allege the value of the use; if damaged by the taking, or during the detention, allege the damage; and, if expenses of retaking have been incurred, allege as follows:] That by reason of such un- lawful taking and detention of said property, the plaintiff was compelled to pay, and did, on or about the day of , 19 , at , pay dollars to fendants, was a public officer, and ^ Where the asportation was merely that he acted under process. Plain- from one place on the highway to tiff may then prove whatever new another, with no claim of right to matter he rehes on in avoidance — the property, it was held that an such as exemption — although not action of this character would not pleaded." See Dennis v. Snell, 54 lie, and that the owner was not jus- Barb. (N. Y.) 415. tified in abandoning and could not It is the better opinion that a recover full value. Hammond v. charge of entering upon plaintiff's Sullivan, 112 App. Div. 788, 99 N. Y. land, with a statement that defend- Supp. 472. ant took away personal property, ' Punitive damages may be re- shows but one cause of action, viz., covered where defendant's behavior the trespass q. c. /., and that the re- was reckless and high-handed. Small- maining allegations show matter in ing ;;. Jackson, 133 App. Div. 382, aggravation or enhancement of dam- 117 N. Y. Supp. 268. ages only. See Form 1055, and notes. 1244 Abbott's Forms of Pleading • [state reason briefly, as:] for cartage on the return of said property from to ; in all to plaintiff's dam- age dollars. Wherefore [etc., demand of judgment]. 1141. For Seizing Plaintiff's Vessel. I. That the plaintiff, at the times hereinafter mentioned, was the owner of [naming the vessel], together with her tackle and equipment, of the value in all of dollars. II. That when said vessel was at , the defendant, on or about the day of , 19 , forcibly seized the same, and took and has retained possession thereof. III. That by reason of the premises plaintiff has been damaged dollars [and if any special damage by way of loss of earnings, etc., allege specially]. Wherefore [etc., demand of judgment]. 1142. Against Sheriff for Excessive Levy under Warrant of Attachment.* I. That at all the times hereinafter mentioned the defend- ant was sheriff of the county of II. That on or about the day of , 19 , in an action then pending in the Court wherein one M. N. was plaintiff, and this plaintiff was defendant, and which action was brought to recover judgment for [five hundred] dollars, a warrant of attachment was issued by Hon. J. K., one of the justices of said court, directed to the above-named defendant as such sheriff, and commanding him to attach and safely keep so much of the property within said county which this plaintiff (the defendant therein) had, as would satisfy the said M. N.'s demand of [five hun- dred] dollars, together with costs and expenses. III. That a levy upon so much of plaintiff's property * The complaint in this action wrongfully attached will not permit should allege that it is the excessive a recovery for the excess upon proof levy of which plaintiff complains; a of an excessive levy. Sexey v. Ad- charge that plaintiff's goods were kinson, 40 Cal. 408. Trespass to Personal Property 1245 as would be worth not more than [seven hundred and fifty] dollars would have been sufficient to comply with the com- mand of said warrant. IV. That thereafter, and on or about the day of , 19 , the defendant, as such sheriff, made a levy upon and took into his custody plaintiff's property, consist- ing of [state character briefly, as — a stock of merchandise in certain store premises known as number street in the city of ], which said merchandise was worth the sum of [ten thousand] dollars. V. That thereafter plaintiff demanded that defendant release from said levy so much of said [merchandise] as was in excess of the amount which should have been levied upon as aforesaid, but defendant refused so to do [and thereafter held said property in his possession to plaintiff's entire exclusion therefrom until about the day of , 19 ]. VI. [Allege resulting damage, as thus:] That by reason of the premises the plaintiff was prevented from carrying on his business as dealer in dry goods at said store for weeks, and said business has been permanently damaged and said stock of merchandise injured, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1143. By Mortgagee of Chattels, against Sheriff; for Selling them on Execution against Mortgagor, after Default.^ I. That on or about the day of , 19 , * This is, in substance, the amended averments in a complaint by a vendor complaint in Hull v. Camley, 11 against a sheriff for seUing on ex- N. Y. 501, 1 Abb. Pr. (N. Y.) 158, execution against the vendee goods modified by the addition of an aver- which he had obtained by fraudulent ment that the mortgage was overdue. representations, see Marsh v. Backus, Decision followed in Manning v. 16 Barb. (N. Y.) 483. Monoghan, 28 N. Y. 585; Hamill v. When a sheriff is liable for the Gillespie, 48 id. 556. See, also, Form trespass or misfeasance of his deputy, 1131 for conversion, and Form 1168 both may be sued jointly for such where the mortgagee brings replevin, wrongful act. Waterbury v. Wester- For the substance of the necessary velt, 9 N, Y. 598; Witowski v. Bren- 1246 Abbott's Forms op Pleading one M. N., then being the owner and in possession of the property therein described, executed and delivered to the plaintiff a chattel mortgage thereon, of which a copy is annexed as a part of this complaint [or set it forth by legal effect, as in Form 1131];^ that the property mentioned and described in said mortgage and the schedule annexed con- sisted of [a lithographic press], of the value of dollars, or thereabouts; that said mortgage was made in good faith, and without intent to defraud creditors or pur- chasers, and was given to secure the payment to plaintiff of dollars, with interest from the date of said mort- gage, which sum was theretofore loaned by the plaintiff to said M. N., and which he then owed the plaintiff. [II. That the said M. N. is by trade or occupation a lithographer, and was, at the date of said mortgage, actively engaged in business as a lithographer, and was dependent upon said business or occupation for support and a liveli- hood; and that the said property so mortgaged was used by the said M. N. in the course of his said business or oc- cupation, and was essential and requisite to him in his said business or occupation; and that said property was left and remained with the said M. N., to enable him to prosecute his said business.] III. That on or about the day of , 19 , .a true copy of said mortgage was duly filed in the office of , in which said county, at the date of said mort- gage, the said M. N. resided.'' IV. That on or about the day of , 19 , and before the levy and sale hereinafter mentioned, said sum of dollars, with interest, became due, pursuant nan, 41 N. Y. Super. Ct. 284; King » That it may be the better course tJ.Orser, 4 Duer (N. Y.), 431; and to annex a copy of the mortgage in see Peo . v. Schuyler, 4 N. Y. 173, such a case, see Fairbanks v. Bloom- and 11 Am. Dec. 145. field, 2 Duer (N< Y.), 349. It is not necessary to set forth ' A month's delay in filing the the sheriff's official capacity. Curtis mortgage held to vitiate it. Tooker V. Fay, 37 Barb. (N. Y.) 64; Dennis v. Siegel-Cooper Co., 194 N. Y. V. Snell, 54 id. 4U, 442. Trespass to Personal Property 1247 to the terms of the mortgage [or, if on demand, the said sum of dollars, with interest, was duly demanded from the said M. N. by the plaintiff], but said M. N. failed to pay the same; and thereupon, pursuant to said mortgage, the plaintiff became the owner of said property, and entitled to the immediate possession and control of the same.^ V. That thereafter, and on or about the day of ,19 , the defendant W. X. issued to the defend- ant Y. Z., sheriff of the county of , an execution against the property of the said M. N. ; and on or about the day of ) 19 , plaintiff caused a notice to be served upon said sheriff, informing him of said mortgage, and of the default in the payment thereof, and that the plaintiff claimed the property therein mentioned. VI. That on or about the day of , 19 , regardless of said mortgage and notice, the said defendant [sheriff] wrongfully seized and sold said [mortgaged property] ; and thereafter returned said execution satisfied. VII. That the defendant W. X. directed said defendant [sheriff] to make such levy and sale without regard to said mortgage, and agreed to indemnify him against any and all damage that might arise from said levy and sale; and that after said sale he received the proceeds, or a portion thereof, . to his own use and benefit.* ' This averment is not contained sale, the mortgagor is entitled to in the complaint in HuU v. Camley. remain in possession. To maintain It was there merely alleged that the such an action, the plaintiff mort- amount was due at the commence- gagee must aver and prove that he ment of the action; and it was held had the actual possession, or right that the defendants were not liable, of possession, at the time of the inasmuch as the plaintiff had not, at alleged conversion. If in such a the time of the levy and sale, an im- case the mortgagee has any remedy, mediate right to the possession. it is only by an action founded on Neither before nor since the Code the special circumstances of the case, can an action in the nature of tres- setting forth the injury to his con- pass or trover be maintained by the tingent interest in the property, and mortgagee of chattels, because of claiming damages therefor. Goulet their sale upon execution, against v. Asseler, 22 N. Y. 225. either the officer or the plaintiff in ' As to the UabiUty of the attorney the execution, if, at the time of such who communicated the directions of 1248 Abbott's Forms of Pleading VIII. That prior to sale the plaintiff duly demanded of said defendant sheriff [f/ie mortgaged goods], but he refused to deliver the same. '" IX. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. II. OTHER INJURIES TO CHATTELS 1144. For Malicious Injury to Property. That on or about the day of , 19 , at , the defendant, maliciously intending to injure the plaintiff, willfully cut, broke, mutilated and defaced [or, state other injury] certain [briefly designating the things], which were then and there the property of the plaintiff, and of the value of dollars, and wholly destroyed the same [or, and greatly injured them, so that the plaintiff was obliged to expend dollars in repairing the same], to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1145. For Malicious Injury to Plaintiff 's Animal. That on or about the day of ,19 , at , the defendant willfully and maliciously killed a dog," the property of the plaintiff, and of the value of dollars, to the damage of the plaintiff doUars.^^ Wherefore [etc., demand of judgment]. his client to levy, see Ford v. Wil- Hamby v. Samson (Iowa), 74 N. W. liams, 13 N. Y. 577, 24 id. 359. Rep. 918. 1" In Moses v. Walker, 2 Hilt. i^ From Jordan v. McGill, 43 App. (N. Y.) 536, it was held not necessary Div. 264, 60 N. Y. Supp. 33, where to allege that the plaintiiT made de- it was held that the non-payment of mand before suit. the dog tax under the County Law " That such an action will lie, see is a matter of affirmative defense to Rimbaud v. Beiermeister, 168 App. the extent of showing that a tax had Div. 596, 154 N. Y. Supp. 333; been imposed. Uhlein v. Cromack, 109 Mass. 273; Exemplary damage may be al- Parker v. Mise, 27 Ala. 480; Brent lowed, even though the dog was V. Kimball, 60 111. 212. That there trespassing on defendant's property, is a property right in a dog, see Rimbaud v. Beiermeister, 168 App. Mullaly V. People, 86 N. Y. 365; Div. 596, 154 N. Y, Supp. 333. CHAPTER XL COMPLAINTS IN ACTIONS OF REPLEVIN ^ [For a cofnparison of the rules governing the measure of damages in Replevin, Conversion and Trespass, see ante, page 1237.] I. Where the chattel was whongpully taken. page 1146. Plaintiff the owner 1250 1147. For goods wrongfully taken from plaintiff's assignor 1252 1148. For goods wrongfully taken from plaintiff's lessee or bailee. 1253 1149. Plaintiff not owner, but having a right of possession because of special property 1254 1150. Allegation of concealment of chattel 1255 1151. Against sheriff, marshal or constable for seizing exempt property 1255 II. Omginal possession lawful, but followed by unlawful deten- tion. 1152. General form; for wrongful detention 1256 1153. The same, another form sustained in Indiana 1257 1154. By seller against purchaser after a conditional delivery under agreement to pay upon delivery 1258 1155. Against one having lien who refuses to surrender the prop- - erty after tender of charges 1258 ' Called in N. Y. Code "an action the essential elements of the common- torecover a chattel" (§§ 1689 e< se?.); law action. Sinnott v. Feiock, 165 in Minnesota (Minn. Stat., 1891, N. Y. 444; Schofield v. Whitelegge, § 4969) and North Carolina (Code 49 N. Y. 259. Similar rulings have Civ. Pro., §321) "an action of claim been made by the courts of North and delivery.'' Carolina (Duffy v. Murrill, 9 Ired. This action has been subjected to L. 46), Iowa (Chadwick v. Miller, statutory modif](;ation and enlarge- 6 Iowa, 34), and Alabama (Cooper ment in almost all States; in some v. Watson, 73 Ala. 252). States the right is held to exist only The statutes of the local State according to the provisions of the should be consulted before using statutes. Adkinson v. Hardwick, 12 any one of the following forms as a Colo. 581; Trotte v. Wyly, 77 Ga. complete precedent. The forms are 684. In New York, the statute is sufficient to show that the essential construed as intended to supply the common-law requisites exist, but provisional relief theretofore ob- local statutes may necessitate ad- tained in the action of replevin, and ditional allegations. Vide, in Arkan- to leave substantially .unchanged sas, Beebe v, De Baum, 8 Ark. 510. 1249 1250 Abbott's Forms of Pleading PAGE 1156. Conditional sale agreement; seller against buyer 1260 1157. The same, by seller against a purchaser from the buyer. . . 1260 1158. The same, by buyer against the seller who has retaken the chattel 1261 1159. Fraudulent purchase; false representations 1261 1160. The same, insolvency and intent not to pay 1263 1161. The same, against the transferee of purchaser 1264 1162. The same, against the assignee for benefit of creditors. . . . 1265 1163. The same, against sheriff holding the chattels under levy under a judgment against the purchaser 1266 1164. Against sheriff to recover exempt property 1266 1165. The same, another form sustained under Nebraska statute. 1267 1166. The same, another form sustained in Indiana 1268 1166a. Where goods were originally stolen or lost, and subse- quently found in defendant's possession 1269 1167. By lessor of chattel against lessee, or transferee from the lessee, after default in payment of rent 1270 1168. By chattel mortgagee, against sheriff holding property under execution against mortgagor 1271 I. WHERE THE CHATTEL WAS WRONGFULLY TAKEN. 2 1146. Plaintiff the Owner.^ [Under N. Y. Code Civ. Pro., §§ 1720, 1721.] I. That at the time of the commencement of this action [or, on and before the day of ,19 ,] * plain- tiff was the owner and entitled to the immediate possession ^ ' Or, as formerly termed, replevin in * Plaintiff's ownership of chattel, the cepit, which could lie only when whether absolute or special, must be trespass would lie. Dunham v. alleged; if absolute, a direct allega- Wyckoff, 3 Wend. (N. Y.) 280; tion of ownership is sufficient, but Barrett v. Warren, 3 Hill (N. Y.), it special, the facts raising it must be 348. alleged. N. Y. Code Civ. Pro., ' Plaintiff may unite in one com- § 1720. In absence of an allegation plaint a count founded on plaintiff's of ownership, or of facts showing ownership of the chattel, and another special property, an , allegation that count founded on a lien thereon. plaintiff is entitled to possession is a Dean v. Butler, 166 App. Div. 367, mere conclusion of law, and ineffec- 152 N. Y. Supp. 34. tual. Schofield v. Whitelegge, 49 * The time when the chattel was N. Y. 259. After the general alle- replevied, when the replevy precedes gation of ownership, a statement of the commencement of the action, the facts showing how plaintiff be- N. Y, Code Civ. Pro., § 1720, came such owner does not detract Actions of Replevin 1251 of [describe the chattel with certainty,^ as:] one rosewood upright piano, made by of the value of about dollars.' [Or, if the articles are numerous, may say: the ar- ticles mentioned in Schedule A, hereto annexed and made part of this complaint, and respectively of the values therein stated.] II. That on or about the day of , 19 , at , the defendant wrongfully and unlawfully took the said piano from plaintiff's possession ^ and has thereafter wrongfully detained and still detains the same from him, to plaintiff's damage dollars.® from the allegation. Donovan v. Stuber, 130 App. Div. 235, 114 N. Y. Supp. 693. But if such facts show that the ownership is not in the plain- tiff, the general allegation of owner- ship is overthrown. Burdick v. Chese- brough, 94 App. Div. ,532, 88 N. Y. Supp. 13. ^ The property must be described in the complaint with such certainty that the specific chattels may be identified. It will not lie for money, unless belonging to the plaintiff specifically, and so described. Sager V. Blain, 44 N. Y. 445. Such a de- scription as "590 sacks of wheat," followed by a verdict and judgment referring only to "the property" de- scribed in the complaint," is fatally defective. Pierce v. Langdon (Ida.), 28 Pac. Rep. 401. See, also. Smith V. Stanford, 62 Ind. 392; Jones v. Minogue, 29 Ark. 637. But "37 cases of Connecticut seed — ^leaf tobacco" was held jurisdictionally sufficient after judgment. Lehman v. iVIayer, 68 App. Div. 12, 74 N. Y. Supp. 194. Replevin will lie for documents evidencing rights, such as deeds, certificates of stock, etc. See cases collated in Bachmann, etc., Co. v. Gehl, 154 App. Div. 849, 139 N. Y. Supp. 807. It is not necessary to allege that the chattel is detained in the county where the action is pending. Gould V. O'Neil, 1 Ind. App. 144, 27 N. E. Rep. 307. ' The allegation of value is not ad- mitted by failure to deny, nor is plaintiff concluded by it. Chicago, etc., R. Co. V. Northwest, etc., R. Co., 38 Iowa, 377; Bailey «. Ellis, 21 Ark. 488. But if value is alleged the omission of the ad damnum clause does not vitiate. Woods v. Bailey, 14 Pac. Rep. 758. 8 Where the complaint contains sufficient allegation of plaintiff's title, an allegation that "defendant wrongfully took" is sufficient with- out setting forth the facts showing that the taking was wrongful. N. Y. Code Civ. Pro., § 1721. A demand need not be alleged. It seems, that an allegation of detention is not necessary in this action. Hoffman V. Markham, 88 Hun, 18, 68 N. Y. State Rep. 292, 34 N. Y. Supp. 508. It is not necessary, at least in Pennsylvania, that plaintiff should show that he ever had possession. Miller v. Warden, 3 East. Rep. 596. » An allegation of damage suffered is essential in order to permit a re- covery thereof. See N. Y. Code Civ. 1252 Abbott's Forms of Pleading Wherefore, plaintiff demands judgment against defend- ant for the possession of the said piano, or for the sum of dollars in case possession thereof cannot be given to plaintiff, and for the sum of dollars damages, together with the costs of this action.^" 1147. For Goods Wrongfully Taken from Possession of Plaintiff's Assignor. '^ I. That on or about the day of , 19 , one M. N. was the owner of [designate the goods],^^ of the value of dollars. II. That on the said day, at , the defendant Pro., § 1722; Greenburger v. North Side Wareh. Co., 170 App. Div. 887, 154 N. Y. Supp. 450. See measure of damages in re- plevin, as compared with conversion and ti;espass. Supra, p. 1237. Spe- cial damages must, under familiar rules, be specially alleged. The following cases support the form as here given: Bernheimer u. Hartmayer, 50 App. Div. 316, 63 • N. Y. Supp. 978; Schofield v. White- legge, 49 N. Y. 259; Simmons v. Lyons, 55 id. 671; Hoffman v. Mark- ham, 88 Hun, 18, 68 N. Y. State Rep. 292, 34 N. Y. Supp. 508. It is not necessary to state in the complaint that the action is not within any of the exceptions men- tioned in N. Y. Code of Civ. Pro., § 1690. Hoffman v. Markham, supra. Similar rulings were made under local statutes in Turpie v. Fagg, 124 Ind. 476; Daniels v. Cole, 21 Neb. 156, 31 N. Y. Rep. 491. In New York and some other States, the action lies against one who wrongfully took possession, though he has since voluntarily parted with possession. Nichols v. Michael, 23 N. Y. 264, 268; Barnett V. Selling, 70 N. Y. 492; contra, Riciotto V. Clement (Cal.), 29 Pac. Rep. 414. But not if the goods have been taken from him by legal process. Sinnott v. Feiock, 165 N. Y. 444. In this last case the authorities on the subject of whether the action will lie against one who is not in possession at its commencement, are collated from many jurisdictions. See also note to Form 1160. " In the absence of any local statute, or practice regulation, this form of prayer for judgment will probably be sufiBcient. Where the plaintiff is, at the time of judgment, already in possession of the goods, if he succeeds in the suit he merely takes a judgment to confirm his possession, and for his damages . and costs. Dwight v. Enos, 9 N. Y. 470. The judgment must be in the alternative, and not in any case absolutely for the value of the property. Fitzhugh v. Wiman, 9 N. Y. 559; Dwight v. Enos, Id. 470. And see N.Y.Code Civ. Pro., §§1728- 1731. "Under N. Y. Code Civ. Pro., § 1692. 12 See note 6 to Form 1146, on method of describing property. Actions of Replevin 1253 wrongfully took said [goods] from the possession of said M. N., and ever since has unjustly detained the same, to the damage of said M. N. dollars. III. That on or about the day of , 19 , said M. N. duly sold and assigned to the plaintiff said [goods], and his claim to damages for said taking and detention, and plaintiff is, at the time of the commencement of this ac- tion, the owner of said goods. IV. That on or about the day of , 19 , plaintiff duly notified defendant of said sale and assignment, and demanded of defendant that he deliver the said [goods] to plaintiff, but said defendant refused and still refuses so to do, and wrongfully detains the same from plaintiff, to his damage dollars. Wherefore [demand for judgment, as in Form 1146]. 1148. For Goods Wrongfxxlly Taken from Possession of Plaintiff's Lessee or Bailee." I. That at all the times hereinafter mentioned the plain- tiff was, and still is, the owner of [designate the goods],^* of the value of dollars; that said goods were on or about the day of , 19 , in the custody of one M. N., with whom the plaintiff had deposited the same for storage [or, otherwise, according to the fact]. II. That on or about said day of , 19 , at , the defendant wrongfully took said [goods] from the possession of said M. N., and still wrongfully detains the same, to plaintiff's damage dollars. [// plaintiff's previous allegations of the character of M. N.'s possession show a right in the latter for a definite term, may add,: III; That before the commencement of this action said term of hiring to said M. N. had fully expired, and plaintiff had become entitled to the immediate and exclusive posses- sion of said goods.] '^ Wherefore [ demand for judgment, as in Form 11 46]. " For averments where the plain- " See note 6 to Form 1146 on this tiff claims title under a chattel point, mortgage, see Form 1131. '* It seems that the right of pos- 1254 Abbott's Forms op Pleading 1149. Plaintiff not Owner, but Having a Right of Posses- sion Because of Special Property." [Under N. Y. Code Civ. Pro., §§ 1720, 1721.] I. That on or about day of ? 19 > the defendant [or, one M. N.] " was the owner of [the chattel] ^^ of the value of dollars; that on said day said defend- ant [or, said M. N.] delivered said [chattel] to plaintiff, and pledged the same with him, as security for a loan of dollars then made by him to said defendant [or, said M. N.] II. That at the time of the commencement of this action '* said loan remained and still remains unpaid and plaintiff held and still holds such lien upon said property and was and is entitled to the possession thereof [and if the value of plain- session of a bailee holding a lien, does not preclude the owner from main- taining this action against a third person wrongfully taking the goods from the baUee, and that in such case either owner or bailee may bring the action. See Fitzhugh v. Wiman, 9 N. Y. 559; Neff v. Thomp- son, 8 Barb. (N. Y.) 213, and cases cited. But it is otherwise of an owner who has divested himself of the right of possession for a definite term — e. g., by a lease. Bruce v. Westervelt, 2 E. D. Smith (N. Y.), 440. It is only in such cases that this allegation is necessary. '* Where the complaint alleges ownership in the plaintiff, he must stand or fall upon that claim; he cannot, if his alleged title proves to be invalid, fall back upon an alleged lien. Hudson v. Swan, 83 N. Y. 552. But in different counts in the same complaint plaintiff may allege owner- ship, and a lien upon, the same chattel, and recover on proof of either. Dean v. Butler, 166 App. Div. 367, 152 N. Y. Supp. 34. Where plaintiiT's right to posses- sion depends upon his special prop- erty in the chattel, the Code requires the facts to be stated showing the special property. (§ 1720.) At com- mon law it was proper to describe the chattel as the property of the plaintiff even if his property was special and without stating the facts which raised it; and an averment that he was entitled to the immediate possession by virtue of several at- tachments duly issued was bad, as pleading evidence. Vandenburgh v. Van Valkenburgh, 8 Barb. (N. Y.) 217. It is the better practice, where no statutory requirement exists, to set forth the facts as tending to narrow the issue. " If title is claimed under a third person his ownership should be al- leged. Gardner ;;. Scoville, 1 How. Pr. N. S. (N. Y.) 272. '5 See note to Form 1146 as to method of describing. " Or if the replevin preceded serv- ice of summons, insert date of re- plevin. N. Y. Code Civ. Pro., § 1720. Actions of Replevin 1255 tiff's special property does not appear may add: and plaintiff's special property was worth to him dollars]. III. [As in paragraph II of Form II46.] Wherefore [demand of judgment as in Form II46]. 1150. Allegation of Concealment of Chattel.^" [Under N. Y. Code Civ. Pro., § 549.] That the said chattel has been concealed, removed or dis- posed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, and to deprive the plaintiff of the benefit thergpf . 1151. Against Sheriff, Marshal or Constable, for Seizing Exempt Property. 2^ I and II [As in Form II46.] III. That the defendant was at said time [the sheriff of the county of ], and seized and took away the said piano under the pretended authority of an execution issued to him upon a judgment recovered against plaintiff by one M. N. ^The purpose of including this also, note to Form 1146 regarding the allegation is to obtain a preliminary defendant's possession of the prop- order of arrest (N. Y. Code Civ. Pro., erty at the time of the commence- § 549), and keep defendant impris- ment of the action, oned pending judgment unless he ^^ Adapted from complaint in gives bail on the condition that he Conkhn v. McCauley, 41 App. Div. will deliver the chattel to plaintiff if 452, 58 N. Y. Supp. 879, amended to delivery thereof is adjudged, and pay meet the court's criticism, any sum recovered. (N. Y. Code Under familiar principles, the Civ. Pro., § 575.) Execution against complaint may be framed for a the person issues upon the judgment wrongful taking without reference without obtaining the order of arrest. to defendant's official capacity and Lehman v. Mayer, 68 App. Div. 12, action thereunder, leaving defendant 74 N. Y. Supp. 194. to plead the justification and plain- If plaintiff inserts this allegation, tiff to meet it at the trial with proof he cannot recover without proof of it that the article seized was exempt, at the trial. Merriam v. Johnson, See Abb. Trial Ev., 2d ed., p. 797; H6 App. Div. 336, 101 N. Y. Supp. Dennis v. Snell, 54 Barb. (N. Y.) 415. 627. It does not interfere with the See Form 1164 for another prec- bringing of this possessory action. edent where notice and demand of Hitchcock V. Wunpleberg, 103 App. exemption followed the taking by the Div. 53, 92 N. Y. Supp. 997. See, sheriff. 1256 Abbott's Forms of Pleading IV. That said piano was exempt by law from levy and sale by virtue of an execution, by reason of the fact that its use was necessary in plaintiff's household, and that it was necessary household furniture; that plaintiff so notified de- fendant at the time of the said -taking, and claimed exemp- tion thereof from levy and sale under said execution. Wherefore [etc., demand of judgment as in Form II46]. II. ORIGINAL POSSESSION LAWFUL, BUT FOL- LOWED BY UNLAWFUL DETENTION. 22 1152. General FoJtai for Wrongftol Detention. [Sustained by Wagman v. Raynor, 163 App. Div. 68, 148 N. Y. Supp. 471; ^^ Rogers v. Conde, 67 App. Div. 130, 74 N. Y. Supp. 390; Griswold v. Manning, 67 App. Div. 372, 73 N. Y. Supp. 702; Chapin v. Merchants' Nat. Bank, 31 Hun (N. Y.), 529.] I. That the defendant is in possession of and wrongfully detains from plaintiff [designate the thing particularly as thus: one bay horse, of the age of about years, and weigh- ing about pouncls, and having a white nose, — or, may say, the articles mentioned and particularly described in Schedule A hereto annexed and made part of this com- plaint], ^^ and of the value of dollars [or, and respec- tively of the values in said schedule stated]; that plaintiff is the owner of said [chattel] and is entitled to the imme- diate possession thereof.^^ ^^ The former action of detinue, ^* Or, if the chattel was replevied and replevin in the detinel. before the commencement of the 2' Where it was hMd, that the action, state ownership as of the date "facts showing that the detention of the replevy. N. Y. Code Civ. Pro., was wrongful" were sufficiently set § 1720. forth to meet the requirements of An allegation of absolute owner- N. Y. Code Civ. Pro., § 1721. See, ship is sufficient, without alleging also, Schofield v. Whitelegge, 49 N. Y. right of immediate possession, as 259; Cramer v. BrowneU, 166 App. ownership imports a right of Div. 456, 151 N. Y. Supp. 1001. possession. Griswold v. Manning, ^^ See note 6 to Form 1146, on supra. method of describing the chattel. Actions of Replevin 1257 II. That before the commencement of this action plain- tiff 2« duly demanded of defendant '" the possession of said [chattel], but defendant refused to surrender and continues to wrongfully detain the same from plaintiff, ^^ to plaintiff's damage dollars. [7/ special damages are claimed state the facts.] Wherefore [demand of judgment as in Form 11 46]. 1153. The Same, Another Form, Sustained in Indiana. [Sustained in Ross v. Menefee, 125 Ind. 432; Turpie v. Fagg, 124 id. 476.] '' I. That the plaintiff is the owner and entitled to the posses- sion of [description of chattels] of the value of dollars. II. That the defendants have possession of said [chattels] without right and unlawfully detain said [chattels] from plain- tiff, to his damage dollars. Wherefore [demand of judgment as in Form 11 46]. -* It need not be specifically alleged that the demand was made by the plaintiff, or by his agent. Griswold v. Manning, supra. " Demand is necessary in all cases where no wrongful taking is alleged, and facts excusing a demand are not alleged. Heinrich v. Van Wrickler, 80 App. Div. 250, 80 N. Y. Supp. 226; Wagman v. Raynor, 163 App. Div. 68, 148 N. Y. Supp, 471; Davenport Mtg. Co. V. Taussig, 31 Hun (N. Y.), 583; GiUet v. Roberts, 57 N. Y. 28; Deeter v. Sellers, 102 Ind. 458; Hurd V. Simonton, 10 Minn. 423. But see Form 1153, as to ruling in Indiana. ^The action will lie even where defendant has voluntarily transferred possession to another of property which he is bound to deliver upon demand. O'Connor v. Lock, 148 App. Div. 765, 133 N. Y. Supp. 320. See also note to Form 1146 on this point. ^^ Sustained against general de- murrer, the court saying that the form had repeatedly been held suffi- cient; that the question as to the means by which defendant obtained possession is immaterial, if at the time of the commencement of the action he unlawfully detains the property from the plaintiff. This form without an allegation of demand and refusal would be bad in New York (Code Civ. Pro., § 1720; Schofield V. Whitelegge, 49 N. Y. 259), and might be subject to correction in any jurisdiction upon an application to make it more definite and certain, or bad, wherever an allegation that defendant "imlawfully detains" does not (as in Indiana) sufficiently imply a demand and refusal of delivery. ."^n allegation that defendant "im- lawfully holds" is held equivalent to an allegation that he "unlawfully de- tains." Gould V. O'Neal, 1 Ind. App. 144, 27 N. E. Rep. 307. 1258 Abbott's Forms of Pleading 1154. By Seller against Purchaser, after a Conditional Delivery under Agreement to Pay on Delivery.'" I. That on or about the day of , 19 > plaintiff agreed to sell to defendant [describe chattel as in Form 1146] for the sum of dollars, and defendant agreed to buy the same at such price [state character of pur- chaser's agreement, as:] and to pay for the same upon delivery thereof to him. II. That on or about the day of , 19 j said [chattel] was delivered to defendant [allege breach of purchaser' s^agreement, as:] but defendant did not pay there- for upon-delivery or subsequent thereto. III. That thereafter and on or about the day of , 19 , plaintiff duly demanded possession of said [chattel] of defendant but defendant refused and still refuses to deliver possession thereof to plaintiff and wrong- fully detains the same, to plaintiff's damage dollars. IV. That said [chattel] is of the value of dollars. Wherefore [demand of judgment as in Form 11 46]. 1155. Against One Having Lien, who Refuses to Surrender the Property, after Tender of Charges. [Sustained in Visher v. Smith, 91 Cal. 260, 27 Pac. Rep. 650.] " I. That at all the times hereinafter mentioned defendant was and now is a warehouseman at II. That prior to the day of , 19 , plaintiff delivered to the defendant for storage and stored '" The right to bring replevin will specific allegation of plaintiff's owner- depend upon two conditions, viz: ship at the time of the commence- that the sale was conditional upon ment of the action, but the court held the purchaser's fulfillment of the that his title had been sufficiently concurrent promise, and that the pleaded by the special facts set forth, seller did not waive performance by The form is also adapted from the delivery without such fulfillment. Tripp v. Smith, 50 App. Div. 499, 64 See Adams v. Roscoe Lumber Co., N. Y. Supp. 94, aff'd 168 N. Y. 655, 159 N. Y. 176. where a recovery for plaintiff was " The precedent failed to contain a upheld. Actions of Replevin 1259 with him sacks of barley, of the value of dollars,* of which plaintiff was and is the owner, in con- sideration and acknowledgment of which the defendant then and there executed to the plaintiff a receipt and con- tract in words and figures as follows, to wit: [copy of the warehouse receipt — or, may allege merely from * upon the ex- press agreement and understanding that defendant would safely store and keep said property for plaintiff until plain- tiff requested delivery thereof, for which plaintiff agreed to pay storage charges at the rate of dollars per month]. III. That plaintiff is now, and ever since its delivery to him by the defendant has been, the owner and holder of said receipt; that on or about the day of , 19 , plaintiff [produced said receipt and duly presented it to the defendant without any indorsements thereon, and in the same condition as when it was executed, and at the same time] duly tendered to defendant payment of all charges then due for storage on said barley and demanded the delivery of the barley to him, [and offered to surrender and give up the said receipt upon the delivery thereof].. [Or, if defendant asserted a lien for an unreasonable amount, allege instead of tender: That defendant claimed a lien on said barley of dollars as his charges thereon for storage, and refused to surrender said barley until the whole of said amount was paid; that such charge for storage was largely in excess of the amount of the reasonable charge therefor, which plaintiff alleges would not exceed the sutn of about dollars. ^^ IV. That the defendant refused to surrender or dehver said barley, or any part thereof, to plaintiff, [without giving any reason or excuse therefor,] and now wrongfully detains the same from plaintiff, to the plaintiff's damage dollars. " If the lienor make an unreason- of its payment, a tender is excused, able demand, and refuses to surrender Allen v. Corby, 59 App. Div. 1, 69 the property except upon condition N. Y. Supp. 7. 1260 Abbott's Forms of Pleading V. That plaintiff was the owner of said barley at the time of the commencement of this action. Wherefore [demand of judgment as in Form 1146]- 1166. By Seller against Buyer, under Conditional Sale Agreement.'' I. That plaintiff at all times hereinafter mentioned was and now is the owner of [describe chattel as in Form 11^6] of the value of dollars. II. That on or about the day of , 19 , at , at defendant's request plaintiff delivered said [chattel] to defendant upon an agreement for the condi- tional sale thereof, wherein and whereby it was mutually agreed [state character of agreement, as:] that the title to said [chattel] should be and remain in plaintiff until the full sum of dollars had been paid to him by defendant, that payments of dollars per week were agreed to be madp by defendant to plaintiff on account of such pur- chase price until the whole thereof had been paid, and that in case any such weekly pajrtnent was not made when the same- was payable, plaintiff might retake said [chattel] from defendant's possession^ III. That prior to the day of , 19 , installments aggregating dollars had become due and payable by defendant to plaintiff under said agree- ment, of which defendant had not paid plaintiff dollars; that on said day plaintiff duly demanded of de- fendant possession of said [chattel], but defendant refused and still refuses to give plaintiff possession thereof and wrongfully detains the same, to plaintiff's damage dollars. Wherefore [etc., demand of judgment as in Form 1146]. 1157. Conditional Sale Agreement; by Seller against a Purchaser from the Buyer. [Form 1128, under Conversion, may he substantially fol- *' Adapted from complaint in Moran v. Abbott, 26 App. Div. 570, 50 N. Y. Supp. 337. Actions of Replevin 1261 lowed, except that demand for judgment should be as in Form me.] 1158. Where Seller has Retaken Chattel under Condi- tional Sale Agreement.^* [Under N. Y. Personal Property Law, § 65.] I. That on or about the day of , 19 , at in the county of and State of New York, defendant deUvered to plaintiff [describe chattel, as in Form 1146], of the value of dollars, upon an agreement of conditional sale thereof for the sum of dollars. II. That thereafter, and on the day of , 19 , defendant retook said [chattel] from plaintiff's posses- sion; that prior to the said retaking, plaintiff had paid de- fendant dollars upon said purchase price. III. That within thirty days thereafter, and on the day of , 19 , plaintiff duly tendered to defendant the full amount of the balance due upon the purchase of said [chattel], with all accrued interest, and duly demanded deUvery to plaintiff of said [chattel], but that defendant re- fused to so deliver the same and wrongfully withholds and detains^said [chattel], to plaintiff's damage dollars. Wherefore [demand for judgment as in Form 11 46]. 1159. Against a Fraudulent Purchaser; ^■' False Represen- tations.^* I. That on or about the day of , 19 , '* Replevin will lie. Tweedie u. cases collated from many jurisdic- Clark, 114 App. Div. 296, 99 N. Y. tions. Supp. 856. ™ It seems not necessary, at least, '* The action will lie although the against an objection at the trial, to fraudulent purchaser has before ac- state the facts specially as in this tion brought -voluntarily transferred form. The plaintiff may declare gen- the property (Nichols v. Michael, 2.3 erally, claiming the property as his, N. Y. 264; Bamett v. Selling, 70 id. and charging that the defendants 492), but not if the goods have been have become possessed of and wrong- • taken from him by legal process. fully detain the same, after his de- Sinnott v. Feiock, 165 N. Y. 444, and mand (as in Form 1152), and give 1262 Abbott's Forms of Pleading plaintiff was the owner of [describe property as in Form 11 46] of the value of dollars. II. That on said day the defendant, with intent to de- ceive and defraud plaintiff, falsely and fraudulently repre- sented to [plaintiff] '^ [state the representation made, as:] that defendant's debts did not then exceed the sum of dollars, and that he owned the stock and fixtures in the store at number street, which were worth the sum of dollars [or otherwise according to the fact]; that such representations were made with the false and fraudulent purpose of inducing [plaintiff] to sell goods to defendant upon credit. III. That plaintiff believed said representations to be true, and relied upon them, and was thereby induced to sell and deliver to the defendant the said [goods] on credit. IV. That said representations were false, and were then known to defendant to be false; [negative the statements and allege the true situation, as:] that defendant's debts then exceeded the sum of dollars, to wit, were of the sum of at least dollars, and said stock and fixtures in said store did not then belong to defendant, but did belong to M. N. and had been delivered to defendant for sale upon commission [or otherwise according to the fact]. the special facts in evidence on the Co. v. Taussig, 31 Hun (N. Y.), 563, trial to establish the fraud and his the court refused to strike out from right to rescind. McPherren v. the complaint the allegations of fact Homan, 2 App. Div. 264, 73 N. Y. establishing the fraudulent character State Rep. 492, 37 N. Y. Supp. 706; of the purchase. Bliss V. Cottle, 32 Barb. (N. Y.) 322; It may be said of the form here Hunter v. Hudson River Iron & given, that its use will tend to narrow Machine Co., 20 id. 493. the issue, and there could be little On the other hand, it was suggested danger of an application to make it by the court in Morrison v. Lewis, 49 more definite and certain. It was N. y. Super. Ct. 178, 4 Civ. Pro. Rep. used in Mills v. BriU, 105 App. 437, that plaintiff's rights under a Div. 389, 94 N. Y. Supp. 163, fraudulent purchase were in the na- where no question of its sufficiency ture of a special property under N. Y. was raised. Code Civ. Pro., § 1720, which re- " If the representations were made quires the complaint to set forth the to a commercial agency, allege as in facts upon which a special property Form 1171. And see Mills v. Brill, is based. And in Davenport Mfg. supra. Actions of Replevin 1263 V. That thereafter and as soon as plaintiff discovered the falsity of said representations, he elected to rescind said sale, and on or about the day of , 19 , duly notified defendant that he disaffirmed the said sale,^^ and demanded of defendant that defendant surrender to him the possession of said goods, but defendant refused so to do; [and if part payment has been made, or anything of value received by plaintiff, allege offer to return, as:] '' and plaintiff then and there tendered and offered to return to defendant the sum of dollars, theretofore paid by defendant on account of the purchase price of said goods. VI. That at the time of the commencement of this action, plaintiff was the owner of said goods, and entitled to the immediate possession thereof by reason aforesaid. VII. That by reason of the premises plaintiff has been damaged dollars. Wherefore [demand of judgment as in Form 1146]. 1160. The Same, Insolvency and Intent not to Pay.^" I. [As in Form 1146.] II. That on said day plaintiff sold and deUvered said goods to defendant on a credit of [state]. III. On information and belief, that at said time defend- ant was whoUy insolvent and unable to pay for said goods, as defendant well knew, and that defendant did not intend to pay therefor. IV. [Adapted from paragraph V, VI and VII of Form 1159.] Wherefore [demand of judgment as in Form 1146.] ^ In Davenport Mfg. Co. v. Taus- 2 Abb. Ct. App. Deo. (N. Y.) 516 sig, 31 Hun (N. Y.), 563, a motion to Thurston v. Blanchard, 39 Mass. 18 strike out the allegation of disaflBrm- Coghill v. Boring, 15 Cal. 213 ance was held properly denied. Scott v. Scott, 34 How. Pr. (N. Y.) ''A seller must, in order to dis- 66. affirm a fraudulent sale, return, or '"' Adapted from complaint in offer to return, to the buyer any part Westheimer v. Musliner, 46 App. Div. payment or thing of value, received 96, 61 N. Y. Supp. 348, where it was by him from the purchaser — ^though held that purchases made from va- not a promissory note. Nichols v. rious persons constitute separate Michael, 23 N. Y. 264; King H. Fitch, causes of action which plaintiff, suing 1264 Abbott's Forms of Pleading 1161. Against the Transferee of a Fraudulent Purchaser."' I, II, III and IV. [As in Form 1159, substituting the original purchaser's name for "defendant."] [If disaffirmance and demand preceded transfer to defendant, allege:] V. That thereafter, and on or about the day of , 19 , plaintiff discovered said fraud and elected to rescind the said sale, and thereupon duly notified said M. N. [the fraudulent purchaser] that he rescinded and dis- affirmed said sale, and duly demanded of M. N. that he surrender to plaintiff the possession of said goods [and then and there tendered to said M. N. the sum of dollars theretofore paid by him to plaintiff on account of the pur- chase price thereof]; but said M. N. refused to deliver said goods, or any part thereof, to plaintiff. VI. That thereafter, and on or about the day of , 19 , said M. N. delivered said goods to de- fendant; that thereafter, and on or about the day of , 19 , plaintiff demanded , of defendant that he surrender possession thereof to plaintiff, but defendant refused so to do, and now wrongfully detains the same from plaintiff. [7/ disaffirmance and demand followed the transfer to de- fendant, allege instead of the last two paragraphs:] V. That thereafter, and on or about the day of , 19 , said M. N. delivered said goods to de- fendant. VI. [As in first paragraph V above, substituting "defend- ant" for "M. N.," and adding:] and said defendant now^ wrongfully detains said goods from plaintiff. as assignee, must separately state is on him, after the seller establishes and number. the fraudulent character of the pur- " A bona fide purchaser, without chase, to show his bona fides. notice, may hold the goods against See notes to Form 1159, as to neces- the seller (Dows v. Kidder, 84 N. Y. sity of notice of disaffirmance and 121, and cases cited), but the burden demand for surrender of property. Actions of Replevin 1265 VII and VIII. [As in paragraphs VI and VII of Form 1159.] Wherefore [demand of judgment as in Form 11 46.] 1162. Against Assignee for Benefit of Creditors of Fraud- ulent Purchaser. ^- I, II, III and IV. [As in Form 1159, substituting name of original purchaser for "defendant."] [If disaffirmance and demand preceded assignment, allege:] V. [As in paragraph V at beginning of preceding form.] VI. That thereafter, and on or about the day of , 19 , said M. N. assigned and transferred to defendant all his property and assets, including the afore- said goods, in trust to sell for the benefit of his creditors; that said defendant duly qualified and is now acting as such assignee, and has taken possession of said M. N.'s property and the aforesaid goods. [7/ disaffirmance followed assignment, allege:] V. [As in above paragraph VI.] VI. That thereafter, and on or about the day of , 19 , and immediately upon his discovery of the aforesaid fraud, plaintiff elected to rescind said sale and duly notified defendant that he disaffirmed said sale to said M. N., and demanded of defendant that he surrender said goods to plaintiff [and then and there tendered to defendant the sum of dollars paid by said M. N. on, account of the purchase price of said goods] ; but that said defendant refused to deliver said goods, or any part thereof, to plaintiff, and now wrongfully detains the same from plaintiff. VII and VIII. [As in paragraphs VI and VII of Form 1159.] Wherefore [demand of judgment as in Form 11 46.] " The assignee is liable to an ac- If the property passes into the pos- tion for conversion, but only after session of a receiver, replevin will demand. Goodwin v. Wertheimer, not usually lie until leave of court 99 N. Y. 149; Jessop v. Miller, 2 has been obtained. See Matter of Abb. Ct. App. Dec. (N. Y.) 449. Jensen Co., 128 N. Y. 549. 1266 Abbott's Forms of Pleading 1163. Against Sheriff Holding Chattels Under Levy under Judgments against Fraudulent Purchaser.*' I and //. [As in Form 1152.] III. That defendant claims to hold said property as sheriff of the county of , by virtue of a certain execution which has been issued to him as such sheriff against the property of said M. N. upon a judgment recovered against said M. N. by one 0. P. Wherefore [etc., demand of judgment as in Form 1146]. 1164. Against Sheriff to Recover Exempt Property.** I. That plaintiff at all times hereiaafter mentioned was and is a householder, and was at the said times and at the time of the commencement of this action, the owner and entitled to the possession of the following property: [de- scription] of the value of about dollars. •" Sustained in Desbecker v. Mc- Farline, 42 App. Div. 455, 59 N. Y. Supp. 439, aff'd 166 N. Y. 625. While Code Civ. Pro., § 1721, requires that the complaint "set forth facts showing that the deten- tion was wrongful" (if wrongful taking is not charged), this is held to be sufficiently alleged when plain- tiff is alleged to be the owner and that his demand for possession has been refused. See authorities in notes to Form 1152. Yet allegations such as given above may serve to narrow the issues. " It is the better ofrinion that under the N. Y. statute (Code Civ. Pro., §§ 1390-1) there are two kinds of exemption — the one absolute, the other depending upon its assertion and waived unless asserted. Gilewicz V. Goldberg, 69 App. Div. 438, 74 N. Y. Supp. 984; Grieb v. Northrup, 66 App. Div. 86, 72 N. Y. Supp. 481; Russell V. Dean, 30 Hun (N. Y.), ^42; Wilcox V. Howe, 59 id. 268, 36 N. Y. State Rep. 304, 12 N. Y. Supp. 783. In suing the sheriff to recover pos- session of property absolutely exempt (§ 1390), a complaint in the usual form for wrongful taking should suf- fice to admit the proof [§ 1721; CantreU v. Connor, 51 How. (N. Y.) 45]; it would tend to narrow the issues, however, to state the exact facts substantially as in the above form. When the exemption is not abso- lute, but dependent upon notice and demand (cases above), the above form may be necessary, where the de- mand for exemption is not made until after the levy, for in that case the taking is not wrongful. Dains v. Prosser, 32 Barb. (N. Y.) 290; Turner V. Borthwick, 20 Hun (N. Y.), 119. If, however, the plaintiff can show a demand for exemption at the time of the levy. Form 1151 is suffi- cient. See, also, notes to Form 1089. Actions of Replevin 1267 II. That on or about the day of , 19 , defendant was sheriff of county; that on said day said defendant as such sheriff levied upon and took posses- sion of the above-described property, under an execution issued upon a judgment recovered by one M. N. against plaintiff; that said judgment was not recovered, upon de- mands either for work performed in plaintiff's family as a domestic, or for the purchase .money of any one or more of said [chattels]. III. That the said [goods] were and are exempt by law from levy under execution, and plaintiff [at the time of said levy] duly notified defendant that he claimed that said [goods] were so exempt, and then and there demanded and has since demanded of defendant that he deliver the same to plaintiff. rV. That defendant refused to deliver said [goods] or any part thereof to plaintiff, and wrongfully retains possession thereof, to plaintiff's damage dollars. Wherefore [demand of judgment as in Form 11 46]. 1165. The Same, Another Form, Sustained under Nebraska Statute.^' [Sustained m Johnson v. Neal, 32 Neb. 14, 48 N. W. Rep. 897.] I. That defendant was the duly appointed and quahfied sheriff of county, State of , from the day of , 19 , to the day of , 19 . II. That the plaintiff is the owner and entitled to the pos- session of the following described goods and chattels, to wit: [description], being the same now in the possession of the said defendant, and which he still holds, of the value of dollars. III. That the defendant has wrongfully detained, and *^ The particular state statute consulted and followed. See next creating the exemptions must be form, under Indiana statute. 1268 Abbott's Forms of Pleading now detains, the said goods and chattels from the possession of the plaintiff, to his- damage of dollars. IV. That said property was seized by the defendant as sheriff of taid county, under an execution issued on a judg- ment against the plaintiff, but the same consists of articles exempt from execution; that the plaintiff was, at the time of the levying of the said execution and still is, a resident of the State of , and a householder and the head of a family; that he has neither lands, town lots nor houses subject to exemption as a homestead, and is engaged in the business of agriculture. Wherefore [demand of judgment as in Form 11 46]. 1166. The Same, Another Form, Held Sufficient in Indiana.'"' I and II. [As in preceding form.] III. That plaintiff is a citizen and a householder of said county, and entitled under the law as exempt from execution lo [six hundred] dollars worth of property, and that the aforesaid [property] is of the value of [five hun- dred] dollars. IV. That said defendant, on or about the day of , 19 , took possession of said [property] by vir- tue of an execution issued upon a certain judgment obtained against plaintiff by one M. N.; that said judgment was recovered for a debt growing out of or founded upon an ex- press [or, implied] contract, to wit, [describing it briefly, as] upon a breach by plaintiff of the condition of a certain ad- ministration bond given by plaintiff upon his quaUfication as administrator of the estate of one 0. P. V. That thereafter, and on or about the day of ,19 . , plaintiff duly filed with the defendant a * See Turpie v. Fogg, 124 Ind. rendered upon a contract obligation, 476. In Newcomer v. Alexander, and that the srhedule filed with 96 Ind. 453, a complaint was held sheriff was in ooraplete compliance bad against demurrer for failing to with statutory requirements, show that the judgment had been Actions op Replevin 1269 verified schedule of his property [show that schedule complied with tlie requirements of the statute], and demanded of de- fendant that the said property be set off to him, but defend- ant refused so to do, and wrongfully detains the same from plaintiff, to his damage dollars. Wherefore [demmid of judgment as in Form 1146]. 1166a. Where Goods were Originally Stolen or Lost and Subsequently Found in Defendant's Possession." I. That on or about the day of , 19 , plaintiff was the owner and in possession of [description of chattels] of the value of dollars; that on said day said [chattels] were stolen from plaintiff and taken from his posses- sion without his consent by some person to plaintiff unknown [or, Avere accidentally lost by plaintiff]. II. That thereafter said [chattels] came into the possession of the defendant; that plaintiff thereupon and on or about l':e day of , 19 , duly demanded of de- fendant that he surrender said [chattels] to plaintiff, but defendant refused so to do and still wrongfully detains the same from plaintiff; that the ground of such wrongful deten- tion is that defendant claims to have purchased said [chattels] from some person to plaintiff unknown, and because of such alleged purchase to be the owner thereof. ^^ III. That plaintiff, at the time of the commencement of this action is the owner of said [chattels] and entitled to the immediate possession thereof. IV. That by reason of the aforesaid wrongful detention plaintiff has been damaged dollars.'"' Wherefore [demand of judgment as in Form 11 46]. ■" Undei- similar allegatimis plain- " Where the action is founded on tiff was held entitled to prove a the wrongful detention plaintiff must fraudulent purchase; and to show set forth the facts showing that the that defendant was not a bona fide detention is wrongful. N. Y. Code purchaser without notice from the Civ. Pro., § 1721. fraudulent purchaser. McPherren '' An allegation that the defendant V. Homan, 2 App. Div. 264, .37 N. Y. has disposed of the property will not Supp. 706, 73 N. Y. State Rep. 492. change the theory of action to con- 1270 Abbott's Forms op Pleading 1167. By Lessor of Chattel, against Lessee, or Transferee from the Lessee, after Default in Payment of Rent Reserved. [Sustained in Scofield v. Valentini, 46 N. Y. State Rep. 880, 19 N. Y. Supp. 225.] ^ I. That on or about the ' day of , 19 , plaintiff leased to defendant [or one M. N.] a certain [carefully identify chattel by description as in Form 1146], belonging to plaintiff and of the value of about dollars, for the term of , and in consideration of said letting said defendant [or, M. N.] promised to pay to plaintiff the sum of dollars monthly for the use thereof; that it was also agreed by said defendant [or, M. N.] in consideration of said letting, that if he should fail to make any one of said mon- thly payments when the same became due and payable, that said lease and all of his rights thereunder should imme- diately cease and determine, and that plaintiff should be immediately entitled to possession of said [cKattel]. [In case of transfer by lessee:] That thereafter, and on or about the day of , 19 , the said M. . N. delivered said [chattel] to the defendant, who now has posses- sion thereof. ^^ II. That on the day of , 19 , the sum of dollars became due and payable by the said defendant [or, M. N.] to plaintiff by the terms of the said lease, but said sum was not paid; that by reason thereof plaintiff became and is entitled to the immediate possession of said [chattel]. III. That on or about the day of , 19 , plaintiff duly demanded of defendant that he return said [chattel], but said defendant refused and still refuses so to do, and wrongfully detains the same from plaintiff. version. Hitchcock v. Wimpleberg, *' Knowledge of the lease need not 103 App. Div. 53, 92 N. Y. Supp. be alleged, as the transferee of a lessee 997. takes the chattel subject to all the '" See, also, Scaglione v. Brooks, 159 conditions of the lease. Sehofield v. App. Div. 573, 144 N. Y. Supp. 542. Valentini, supra. Actions of Replevin 1271 IV. That by reason of the premises plaintiff has been damaged dollars. Wheeefore [demand of judgment as in Form 11 46]. 1168. By Chattel Mortgagee, against Sheriff Holding Property under Execution against Mortgagor. ^^^ I. That on or about the day of , 19 , one M. N. was indebted to plaintiff in the sum of dollars, ^^ and was the owner and in possession of the chat- tels hereinafter referred to; that on said day said M. N. duly executed and delivered to plaintiff a chattel mortgage, whereof a copy is hereunto annexed, marked Schedule A, and made a part hereof [or, plead according to legal effect, as in Form 1131].^* II. That said mortgage was thereafter, and on the day of , 19 , duly filed in the office of the county clerk of the county of [or, register, etc. — or, town clerk] in the city of [or, town of ], where said M. N. resided on the said day of execution thereof.'^'' *2 The action will lie only when de- " The action will lie when based fault had been made in payment of upon a conveyance intended to the mortgage, according to its terms, operate as a mortgage. See Form prior to the levy. See Hull v. Carn- 1131, and notes, ley, 11 N. Y. 502; Galen v. Brown, ** This filing must be alleged, un- 22 id. 37; Manchester v. Tibbetts, less plaintiff can allege delivery of 121 id. 219. See, also. Form 1131, the chattels into his possession when under Conversion, and notes the mortgage was given, thereto, and Form 1143, under Tkes- Filing must be made in the city PASS. or town where the property was " The terms of the debt need not located at time of mortgage, if mort- be given. Rodgers v. Graham, 36 gagor is a non-resident. See, for Neb. 730, 55 N. W. Rep. 243. Form- New York Statute, L. 1909, ch. 38 erly the mortgagee had the burden (The Lien Law), § 232. If the mort- of showing that the mortgage was gaged chattels are in New York made in good faith and without any City, the mortgage must be filed in fraudulent intent. Manchester v. the county where the mortgagor Tibbetts, 121 N. Y. 219, applying alleges to reside, and also in the 2 N. Y. Rev. Stat. 136, § 5. But county where the property is situated, this statute has been amended so as Id. The allegation in the form not to apply to mortgages. Pers. should be modified to show com- Prop. Law, § 36. pliance with these requirements. 1272 Abbott's Forms of Pleading III. [7/ more than one year has elapsed since filing:] ** That thereafter, and on the day of , 19 , plaintifif duly filed in the office of said [clerk] a statement describing said mortgage, stating the names of the parties, the time when and the place where the said mortgage was filed, and the interest of the plaintiff in the property thereby claimed by him by virtue thereof, a copy of which said statement is hereunto annexed, marked Schedule B, and made a part hereof [or, plaintiff duly filed a copy of such mortgage and its indorsements, together with a statement indorsed thereon showing plaintiff's interest, in the office of said — clerk — ] ; that at the time of said filing of said state- ment said M. N. was a resident of said city of ." IV. That on the day of , 19 , the said sum of dollars became due and payable by said M. N. to plaintiff, according to the terms of said mortgage, but the said sum was not paid, nor has any part thereof since been paid. V. That thereafter, and on or about the day of' ,19 , the defendant, who was then the sheriff of said County of , took possession of said goods under an execution issued upon a judgment recovered by one 0. P. against said M. N. ; that thereupon plaintiff duly demanded of defendant that he deliver possession of said goods to plain- tiff, but defendant refused so to do, and still wrongfully detains the same from him, to plaintiff's damage dollars. VI. That at the time of the commencement of this action, plaintiff was entitled to the possession of said goods by virtue of his special property therein as above alleged; that said goods are of the value of dollars. Wherefore [demand of judgment as in Form 11 46]. ^ In New York, within thirty Law (ch. 38 of Conaol. Laws, L. 1909, days next preceding the expiration ch. 38), § 235. of each and every year after the first " For the effect in New York fihng, there must be a refiling in the State of the mortgagor's non-Tesi- manner above alleged. If more than dence, or change of residfence, on two years have elapsed, a second the place of refiling, see § 235 of refiling must be alleged, etc. Lien the statute. CHAPTER XLI COMPLAINTS IN ACTIONS FOR DAMAGES FOR FRAUD AND DECEIT ^ ' An analysis of the cause of action for fraud and deceit sliows that it is composed of the following elements: I. A representation: (as to matters of fact, as distinguished from opinion. Fox V. Duffy, 95 App. Div. 202, 88 N. Y. Supp. 401 ; Hickey v. Morrell, 102 N. Y. 454; Ellis v. Andrews, 56 id. 83). (A false statement of a present intention is a statement of fact. Adams v. Gillig, 199 N. Y. 314; Gabriel c. Graham, 168 App. Div. 847, 154 N. Y. Supp. 493.) (Existing fact, not future event. Closius v. Reiners, 13 App. Div. 163, 43 N. Y. Supp. 297; Wilson i'. Meyer, 154 App. Div. 300, 133 N. Y. Supp. 1048.) (Material to the transaction. Schu- macher I'. Mather, 133 N. Y. 590.) (Or a concealment, contrary to de- fendant's duty to disclose. Thor- wegian u. King, 111 U. S. 549.) II. Made by defendant: (Van Weel V. Winston, 115 U. S. 228). (Or his agent or servant. Stewart v. Wyo- ming Cattle Co., 128 U. S. 383.) (Or its oflBcers or agents if a corporation. Benedict v. Guardian Trust Co., 58 App. Div. 302, 68 N. Y. Supp. 1082.) (Or one whose course he ratified. Krum V. Beach, 96 N. Y. 398.) - III. To plaintiff: (Or his agent.) (Or to a class of which plaintiff is a member. Eaton, Cole, etc., Co. v: Avery, 83 N. Y. 31.) [Or to the pub- lic. Morse v. Swits, 19 How. Pr. (N. Y.) 275; Fenn v. Curtis, 23 Hun (N. Y.), 384.1 IV. Which was false. V. Known*to defendant to be false when made. (Collins v. Gifford, 203 N. Y. 465; Daly v. Wise, 132 N. Y. 306; Salisbury r Howe, 80 id. 128.) (Or recklessly made by him upon knowledge, when he did not know its truth. Cooper v. SchJesinger, 111 U. S. 148; Morgan v. Skiddy, 62 N. Y. 319; Meyer v. Amidon, 45 id. 169.) VI. Made with intent to deceive: (Zabriskie v. Smith, 13 N. Y. 322.) VII. Plaintiff believed the repre- sentations to be true, and relied thereon, and was induced thereby: (At least in part. Laska c. Harris, 215 N. Y. 554; Morgan i: Skiddy, 62 N. Y. 319.) It does not require very strong proof to establish the fact that plaintiff was induced or inflvienced by the representations; this is usually inferred from the attendant circum- stances. Ochs V. Woods, 221 N. Y. 335. VIII. To his consequent injury: (N. Y. Land Improvement Co. v. Chapman, 118 N. Y. 228; Urtz r. N. Y. C. R. R. Co., 202 X. Y. 170; Anderson v. Smitley, 141 App. Div. 421, 126 N. Y. Supp. 25; Isman u. Loring, 130 App. Div. 845, 115 N. Y. Supp. 933; Badger v. Pond, 120 App. Div. 619, 105 N. Y. Supp. 546; Mar- tin V. Clark, 19 App. Div. 496, 46 N. Y. Supp. 416.) (Though defend- ant may not have personally prof- ited.) Laska v. Harris, 215 N. Y. 554; Mayer i>. Ertheiler, 144 App. 1273 1274 Abbott's Forms of Pleading PAGE 1169. General form; illustrating the principles involved 1276 1170. Specific allegation of representation by means of prospectus, cir- cular or advertisement 1278 1171. Securing goods on credit; representation through commercial agency 1279 1172. Specific allegation of representation by agent 1281 117.3. Specific allegations of the representations made, and as to their falsity 1281 Div. 158, 128 N. Y. Supp. 807; 325, 121 N. Y. Supp. 1001. Or, where Reusons v, Gerard, 160 App. Div. complaint charged that representa- 625, 146 N. Y. Supp. 86.* (In at least tions were made for the purpose of nominal damages. Northrop v. Hill, securing credit and inducing mer- 57 N. Y'. 351.) chants to extend credit, that such See, for a general discussion of the representations were false and known character of the action, Unckles v. by defendant to be false when made. Hentz, 19 App. Div. 165, 45 N. Y. Morrison v. Lewis, 49 N. Y. Super. Supp. 894; Urtz v. N. Y. Central, etc., Ct. 178. Nevertheless, the words R. Co., 202 N. Y. 170; Ochs D. Woods, "wrongfully," "fraudulently," and 221 N. Y. 335; Nash v. Minn. Title, "unlawfully," or like words, add etc., Co., 163 Mass. 574; Arthur v. nothing to the complaint of their own Griswold, 55 N. Y. 400; Brackett v. force; facts must be disclosed to Griswold, 112 id. 454. justify what is a mere conclusion that These elements must appear in the the act done was "fraudulent," etc. complaint, either by direct allegation See Peo. v. O'Brien, 209 N. Y. 366. or by reasonable inference from the In this action for damages it is not facts alleged. necessary for plaintiff to have re- It has been held, that an alle- turned, or to offer to return, the con- gation that defendant fraudulently sideration received, as the action is made a representation, sufficiently rested upon an affirmance not an imphes his knowledge of its falsity. avoidance of the transaction. An- Thomas v. Beebe, 25 N. Y. 244; Garr derson v. Smitley, 141 App. Div. 421, V. Sanger, 138 App. Div. 32, 122 N. Y. 126 N. Y. Supp. 25. And allegations Supp. 593. Intent to deceive is suffi- of an attempted rescission may be ciently impUed in an allegation that treated as surplusage. Churchill v. the defendant knew the representa- St. Geo. Dev. Co., 174 App. Div. 1, tion was false, and made it for the 160 N. Y. Supp. 357. purpose of inducing plaintiff to pur- The cause of action is assignable, chase, etc. Schoellhamer t). Rometsch Keeler v. Dunham, 114 App. Div. 94, (Oreg.), 38 Pac. Rep. 344. Or, that a 99 N. Y. Supp. 969; Benedict v. claim known to be false was fraudu- Guardian Trust Co., 58 App. Div. lently presented for payment. Peo. 302, 68 N. Y. Supp. 1082. And the V. O'Brien, 209 N. Y. 366. Or where assignee of several such causes of declaration averred that defendant action against the same defendant knowingly made false and fraudulent may combine them in one action, representations of material facts, Benedict v. Guardian Trust Co., whereby plaintiff was induced, etc. supra. For appropriate allegation of Fredericks v. Kreuder, 137 App. Div. assignment, see Form 23. Actions for Fraud and Deceit 1275 PAGE 1174. Allegation of statement by defendant on knowledge when he had none 1282 1175. Allegation combining the charges that defendant knowingly made the representation, or made it as of his actual knowledge when he had none 1283 1176. Representation by defendant of intent regarding his future action . 1284 1 177. Against a defendant who did not authorize or participate in the representation, but who retains benefit 1284 (a) Fraud in connection with purchase made by plaintiff 1178. Purchase of horse; general representation as to condition or char- acter 1285 1179. The same, where the representation covered the cause or character of a patent defect 1286 1180. Purchase of goods; fraud in representing quality 1287 1181. The same, fraudulently delivering inferior quality or smaller quan- tity than agreed 1288 1182. The same, fraudulent representation of ownership 1290 1183. The same, where plaintiff has regained portion by means of a re- plevin action 1291 1184. Purchase of land; fraudulent representation as to quantity 1291 1185. The same, fraudulent representation as to title 1292 1186. Purchase of corporation securities; false representation as to the corporation 1293 1187. The same, against the directors or officers, who issue a false pro- spectus 1296 1188. The same, false representation as to amount of capital 1297 1189. The same, against directors for declaring an unearned dividend which induced plaintiff to buy the stock 1301 1190. Goodwill of business; fraudulently representing its value 1303 (b) Other species of fraud. 1191. Procuring loan; false representations as to security given 1301 1192. The same, against corporate officer, on representation as to char- acter of the corporation 1 305 1193. The same, on a worthless check. 1'306 1194. Deposit of money in bank; against officers for fraudulent state- ments inducing deposit 1307 1195. The same, against director or officer accepting deposit when bank was insolvent 1308 1196. The same, for inducing plaintiff not to withdraw deposit 1309 1197. Inducing plaintiff to part with his property; misrepresenting value of corporate stock 1309 1198. The same, misrepresenting character and value of a note 1310 1199. The same, as to judgment 131 1 1200. The same, inducing sale on credit 1313 1201. The same, inducing sale to another on credit 1314 1202. Against one who falsely states his financial condition to prevent eviction for non-payment of rent 1316 1276 Abbott's Forms of Pleading PAGE 1203. Against purchasing agent who falsely states the purchase price. . . 1317 1204. Against an agent on his personal liability 1318 1205. For personal injuries, against manufacturer who intentionally con- ceals a defect which he knows renders the article dangerous 1319 1206. Against one who makes a false warranty (tort in the nature of an action for deceit) 1320 1169. General Form; Illustrating the Principles Involved.^ I. That on or about the day of , 19 , at , the defendant [through its officers and agents] ' falsely and fraudulently * stated and represented to plain- tiff ^- that [here set forth the representation.^ See particular forms, post]. ^ See note at the beginning of this chapter, wherein the essential ele- ments of the cause of action are dis- cussed. ' A corporation is liable for fraud and deceit. Benedict v. Guardian Trust Co., 58 App. Div. 302, 68 N. Y. Supp. 1082. It may be held Uable if it received the avails of the fraud. Churchill v. St. Geo. Devel. Co., 174 App. Div. 1, 160 N. Y. Supp. 357. * Against a general demurrer, or an objection at the trial, an allegation that defendant "falsely and fraudu- lently" made the representation will sufficiently imply scienter. Miller v. Barber, 66 N. Y. 558, 564; Thomas v. Beebe, 25 id. 244; Farwell v. Metcalf, 61 111. 372; Silver v. Holden, 50 N. Y. Super. Ct. 236. See, also. Hoist v. Stewart, 154 Mass. 446, 28 N. E. Rep. 574. And at the trial such an allega- tion will admit proof that defendant falsely pretended knowledge. Stim- son V. Helps, 10 Pac. Rep. 290. But the falsity should be charged in issu- able form, i. e., a direct averment made that the statement was false. Furlong v. Gair, 46 N. Y. Super. Ct. 573. If the complaint charges that the "defendants" made the representa- tions, defendants cannot have the complaint amended so as to show what portion was claimed to have been made by each one. Cantner v. Auerbach, 20 Misc. 281, 45 N. Y. Supp. 846. ' An allegation that the representa- tion was made to plaintiff is suffi- ciently proved by showing that it was contained in a circular generally dis- tributed. Fenn d. Curtis, 23 Hun (N. Y.), 384. But a specific allega/- tion is better to prevent a, claim of surprise. See Form 1170. ° The allegations should show what the representations were. Kranz v. Lewis, 115 App. Div. 106, 100 N. Y. Supp. 674. It is wholly insufficient to merely allege that the plaintiff was induced "by means of false and fraudulent representations" to enter into the transaction; the character of the representations must be alleged. Beadleston & Woerz v. Furrer, 102 App. Div. 544, 92 N. Y. Supp. 879. The alleged" false statements must appear or be shown to have some relation with the transaction. Robin- son V. Syracuse Rapid Transit Cp., 100 App. Div. 214, 91 N. Y. Supp. 909. For a general example of the ACTIONS FOR Fraud and Deceit 1277 II. That plaintiff believed said representations to be true, and relied upon the same, and was thereby induced [state the act done].'' III. That said representations were false,* and were known ** by defendant when made to be false,* and were made with intent to induce plaintiff to act thereon ^ and with intent to deceive and defraud plaintiff; '" that said [property] was [here state what the facts were in truth, as of the time of the representations in such manner as to show their material fal- [Or, if reckless mistatement is relied on substitute between * *.• and were made by defendant as of his personal knowledge; that defendant had in fact no knowledge regarding the same and had no reasonable grounds to believe it to be true.] '' method of stating the misrepresentar tioa with particularity, see Form 1 173. ' That plaintiff was induced by the same representation to do several distinct and separate acts does not affect the single character of the action. Lee v. Brown, 139 App. Div. G69, 124 N. Y. Supp. 204. "An allegation that defendant knew the representation to be false is not sustained by showing that it was made upon knowledge when de- fendant did not know. Marshall i<. Fowler, 7 Hun (N, Y.), 237; McKown V. Ferguson, 47 Iowa, 636. If doubt exists, the allegation may be framed in the alternative. See Abb. Br. on PL, 2d ed., p. 85; note in 24 Abb. N. C. (N. Y.) 326. ' Held an essential allegation in Hurwitz V. Dryfoos, 95 Misc. 147, 159 N. Y. Supp. 228. '"For the necessity of these, or equivalent allegations, see Kushes v. Ginsberg, 99 App. Div. 417, 91 N. Y. Supp. 216, aff'd 188 N. Y. 630; Hur- witz V. Dryfoos, 95 Misc. 147, 159 N. Y. Supp. 228; Coyle v. Nies, 6 N. Y. State Rep. 194; Hoist v. Stew- art, 154 Mass. 445, 28 N. E. Rep. 574. But the specific allegation of fraudu- lent intent is not necessary where the facts alleged show an intent to de- ceive. Fredericks v. Kreuder, 137 App. Div. 325, 121 N. Y. Supp. 1001; Bradley v. Potts (Pa.), 26 Atl. Rep. 734; Brady v. Finn, 162 Mass. 260. " Be careful to state the /ads as to the true situation. To allege that corporate franchises, represented to be valid, are 'in fact "invalid and worthless" is a mere conclusion and insufficient. Eppley v. Kennedy, 131 App. Div. 1, 115 N. Y. Supp. 360. While it is suggested that it is not necessary to allege anything more than that the representations were false (Diefendorf o. Fenn, 125 App. Div. 651, 110 N. Y. Supp. 68), it is customary to allege what the true situation was, and thus show that the falsity was not de minimis. Kranz v. Lewis, 115 App. Div. 106, 100 N. Y. Supp. 674. For example, see Form 1173, on the fitness of a machine for particular work. "See also Forms 1174 and 1175, and notes. 1278 Abbott's Forms of Pleading IV. That said [property] was then worth ^^ dollars less than it would have been had defendant's said representations been true [or otherwise show that damage has resulted by reason of the deceit].^^ V. That by reason of the premises plaintiff has been damaged dollars. ' ^ Wherefohe [etc., demand oj judgment]. 1170. Specific Allegation of Representation by Means of Prospectus, Circtilar, or Advertisement.'* That on or about the day of , 19 , de- fendants fraudulently caused to be prepared, published and deUvered, and generally distributed, a certain prospectus [or, prepared and inserted in the , a newspaper pub- lished at , an advertisement — may annex copy of the prospectus or advertisement, alleging: whereof a copy is at- tached to the complaint and made a part hereof] and fraud- ulently caused to be delivered to the plaintiff a copy of said prospectus for the purpose of inducing the investing public in general and all persons into whose hands such prospectus [or, to whose notice said advertisement] should come, includ- ing the plaintiff, in reliance upon the statements contained therein, to invest in the shares of stock of ■ the " Should refer to the value at the son v. Switley, 141 App. Div. 421, 126 time of the transaction. Stewart v. N. Y. Supp. 25. Lyman, 62 App. Div. 182, 70 N. Y. i= Any special damages should be Supp. 936. specifically pleaded. " It is held that undei' a general " While a specific allegation of the allegation of damage in a sum state,!, particular method of making the plaintiff may recover for aU damages representation complained of may which naturally and necessarily re- not be necessary, and a, general alle- sulted from the fraud. Isman v. gation that the defendant repre- Loring, 130 App. Div. 845, 115 N. Y. sented to plaintiff may suffice at the Supp. 933. The careful pleader, trial to admit proof of plaintiff's re- however, will prefer to allege such ceipt of a prospectus or circular gen- general facts as are given in this erally distributed by defendant [see paragraph. Fenn v. Curtis, 23 Hun (N. Y.) 384], Where the action is for damages the above allegation is desirable as for the fraud, the consideration need preventing a claim of surprise, and not be returned, or tendered. Ander- tending to narrow the issue. Actions for Fraud and Deceit 1279 Company, and to persuade said public and this plaintiff that the shares of said company would prove a safe and highly remunerative investment.^' [7/ a copy is not annexed, allege:] That said prospectus [or, advertisement] contained the following statements [setting forth those clairned to have been fraudulently made].'** 1171. For False Representations as to Financial Condition, Inducing Sale of Goods on Credit; Representation made Through Medium of a Commercial Agency. '' I. That on or about the day of j 19 , at , the defendant made a statement of his financial condition to the commercial agency of , to wit, [state representations made, as:] that he was solvent, that he had the sum of dollars invested in the business of , then conducted by him at said , that his debts did not exceed the sum of dollars, and that his assets included a stock of goods worth dollars. [Or otherwise according to statements actually made.] ^^ " As to the defendant's liability ill v. St. Geo. Dev. Co., 174 App. Div. for the statements contained, even 1, 160 N. Y. Supp. 357. if he does not know their falsity, see See, also, BaU v. Gerard, 160 App. Bystrom v. VUlard, 175 App. Div. Div. 619, 146 N. Y. Supp. 81, aff'd 433, 162 N. Y. Supp. 100. If plain- 221 N. Y. 786. tiff alleges that the statements were '' That such a representation will made to induce purchases of stock, support the action, see Tindle v. he must also show that he purchased; Burkett, 171 N. Y. 520; Mills v. so, if he alleges that they were made Brill, 105 App. Div. 389, 94 N. Y. to induce any other action, he must Supp. 163; Eaton, Cole, etc., Co. v. show that he did so act. See Pollak Avery, 83 N. Y. 31; Naugatuck Cut- V. Dodge Man. Co., 78 Misc. 350, 141 lery Co. v. Babcock, 22 Hun (N. Y.), N. Y. Supp. 1104. 481. It is also a defense in an action •'The precedent is adapted from upon the contract induced by the Reusens v. Gerard, 160 App. Div. fraud. Bradley v. Seaboard Nat. 625, 146 N. Y. Supp. 86, where it Bank, 167 N. Y. 427. was held that a purchase in open The precedent here given is in part market may be made the basis of the from the counterclaim in Rothschild action. If the corporation profited v. Whitman, 132 N. Y. 472, where, by the sales made, it may be made however, no question of pleading was a defendant, as well as those who directly involved, made the representations. Church- ™ In Form 1201, the false represen- 1280 Abbott's Forms of Pleading II. That said representations were false, and were known by the defendant to be false when made, and were made by him with the knowledge that the same would be commu- nicated to subscribers to said agency, and be used and relied upon by parties giving credit to him, and were so made with the intent that they should be so communicated to and be- lieved by such persons when desirous of ascertaining the pecuniary responsibility of defendant, and with the intent to thereby procure a false and unwarranted credit among and deceive and defraud such persons. ^^ III. That said representations were thereafter commu- nicated to plaintiff; that plaintiff relied thereon and believed the same to be true, and was thereby induced to sell and deliver to said defendant goods and merchandise consisting of [briefly specify] of the value of dollars, upon a credit of days. IV. That said representations were false and were known to the defendant when made to be false; [state the trv£ situa- tion, as:] that said defendant was then insolvent; that he had not more than the sum of dollars invested in his said business; that his debts exceeded the sum of dollars, and that the said stock of goods were worth not more than the sum of dollars. V. That no part of the purchase price of said goods has been paid, and defendant is wholly unable to pay for the said goods, ^^ and the value thereof has been wholly lost to plaintiff, to his damage dollars. ^^ Wherefore [etc., demand of judgment], tation was that defendant lacked sentations charged, and the repre- knowledge of the purchaser's inability sentations were shown on the trial to pay; see also Form 1174 and 1175. to be substantially true that the de- 2> A substantially similar avennent fendant was solvent and able to pay held, to sufficiently show the intent to the debt. deceive plaintiff. Morrison v. Lewis, ^* If plaintiff secured a judgment 49 N. Y. Super. Ct. 178. for the purchase price of the goods ^^ In Wilson v. Ryder, 10 N. Y. before learning of the fraud, and the Supp. 233, complaint was held prop- judgment is unsatisfied, it is not a bar erly dismissed, where it fails to allege to this action; but if plaintiff alleges damages resulting from the repre- the securing of the judgment (the Actions for Fraud and Deceit 1281 1172. Specific Allegation of Making Representation by Agent. -'^ That on or about the day of , 19 , one M. N., as agent and representative of the defendants, and acting for and on behalf of them and pursuant to their authority, and for the purpose of inducing plaintiffs to [make said trade], represented to plaihtiffs [etc.].^"^ 1173. Specific Allegations as to Representation made, and as to its Falsity. That prior to and at the time of the making of said agree- ment, and with full knowledge of the character of the plain- tiff's work under the said contract with the said Company, and as an inducement to the plaintiff to enter into said agreement, the defendant then and there stated and represented to the plaintiff, through the instrumentaUty of circulars and photographs published and issued by the said defendant, and under its authority, and by certain verbal and written statements made and sent to the plaintiff, that the said Goodwin Dumping Cars so to be leased could handle all kinds of rock excavation of any size made by steam shovel or otherwise, and could do the work of the plaintiff of transporting away the excavated material from its contract desirability of doing which is ques- ant, or his agent," made the repre- tionable), he should also allege that sentations is bad. Kranz v. Lewis, when he obtained it he was ignorant supra. If in doubt who made it, the of defendant's fraud. Russell v. Wil- allegation should be that defendant ber, 150 App. Div. 52, 134 N. Y. made the representation. Supp. 463. See Form 1183, where ^'^This allegation was held sufB- plaintiff has regained part of the cient in Beem v. Lockhart, 1 Ind. goods through a replevin action. App. 202, 27 N. E. Rep. 239. -■' Under familiar principles, the act The subsequent allegations will or representation by the agent may charge the agent's scienter and intent be charged in the pleading as the de- to deceive. If the principal retain fendant's act or representation, the Tbenefits of the fraud, he will Kranz v. Lewis, 115 App. Div. 106, thereby adopt the agency and be 100 N. Y. Supp. 674. But the spe- liable in this species of action. See cific allegation, as above, is not im- Green v. des Carets, 210 N. Y. proper. An allegation that "defend- 79, and Form 1177. 1282 Abbott's Forms of Pleading with the said Company aforesaid in the shortest possible time and at the least cost per cubic yard. The falsity of these representations should he thus alleged: That the said representations made by the defendant were false and untrue, and known by the defendant to be false and untrue when made, in that the said Goodwin Dumping Cars could not fulfill or comply with the statements and representations made by the defendant as aforesaid, and could not handle all kinds of rock excavation of any size made by steam shovel or otherwise, and could not do the work of the plaintiff of transporting away the excavated material from its contract with the said Company aforesaid in the shortest possible time and at the least cost per cubic yard.^" 1174. Allegation of Statement by Defendant on Eoiowledge, When he had None." That defendant for the purpose of inducing plaintiff to contract with him, and with the intent that plaintiff should believe that such statement was made on defendant's per- sonal knowledge, and be influenced thereby, and act in reliance thereon, stated to plaintiff as of his own personal knowledge that [show statement of material fact] ; that said statement was so made by defendant without having knowl- edge whether the same was true or false, and without having any reasonable grounds to believe it to be true, and with reckless disregard of the injury which might thereby be caused plaintiff. 2" The complaint should not con- App. Div. 178, 58 N. Y. Supp. 1032. tain allegations of unfitness for a See, also, cases cited in notes to next character of service unrelated to the form. representations, and any such alle- See next form combining the charge gations may be stricken out on de- that the representation was made fendant's motion as irrelevant. See knowingly, or as upon actual knowl- O'Rourke Eng. Constr. Co. v. Good- edge when defendant had none; it win Car Co., 144 App. Div. 583, 129 will ordinarily be more desirable to N. Y. Supp. 764. combine the charge, as plaintiff may " That this will support the action often be fairly in doubt upon the see Daly v. Wise, 132 N. Y. 312; situation which the proof may de- Frank V. Bradley & Currier Co., 42 velop. Actions for Fraud and Deceit 1283 1175. Allegation Combining the Charges that Defendant Knowingly made the False Representation, or made it as of his Actual Knowledge When he had no such Knowledge. ^^ That the said statements and representations made by the defendant to plaintiff, as aforesaid, were each and every one false and fraudulent at the time they were made, and were either known by the defendant to be false and fraud- ulent when he made them, or, in making said statements and representations the defendant assumed and intended to, and did, convey to the plaintiff the impression that he had actual knowledge of the matters so stated and represented, when defendant was, at the time, conscious that he had no such knowledge,^' and was then informed and knew of facts and circumstances sufficient to cause him to suspect ™ [charge him with knowledge of] '^ the falsity thereof, which ^An allegation that defendant made a representation which he knew was false when he made it, has been held not sustained by proof of a repre- sentation recklessly made upon knowledge when defendant did not know. Marshall v. Fowler, 7 Hun (N. Y.), 237; McKown v. Ferguson, 47 Iowa, 636. It will therefore be desirable to make the allegation in the alternative where there is ground for claiming that the statement might have been made with knowledge of its falsity. That this is permissible pleading see Abb. Brief on Pleading, 2d ed., p. 85, and note in 24 Abb. N. C. 326. '"'That a representation made un- der such circumstances will render defendant liable in this character of action, see Hadcock v. Osmer, 153 N. Y. 604; Kountze v. Kennedy, 147 id. 124; Stolitsky v. Linscheid, 150 App. Div. 253, 134 N. Y. Supp. 805; Bystrom v. Villard, 175 App. Div. 433, 162 N. Y. Supp. 100; Cooper v. Schlesinger, 111 U. S. 148; Barnes r. Un. Pac. Ry. Co., 54 Fed. Rep. 87. ™ Suspicion that a statement of facts may be false is sufficient, if it proves to be false, to sustain the action. Shackett v. Bickford, 74 N. H. 57, 65 Atl. 252, 7 L. R. A. (N. S.) 646, with note; see, also, Hadcock v. Osmer, 153 N. Y. 604. '' This bracketed allegation was included in the complaint in Am. Nat. Bank v. Grace, 67 Hun, 432, 22 N. Y. Supp. 121, 51 St. Rep. 308, but I believe it should be omitted. It merely bears upon the defendant's knowledge, rather than upon his reck- less statement without knowledge. No charge of knowledge on the part of defendant needs to be so supple- mented. In the case cited, the court reversed an order directing plaintiff to make his complaint more definite, and certain, by showing the facts and circumstances known by the de- fendant, and which were claimed by the plaintiff to have been sufficient 1284 • Abbott's Forms of Pleading facts and circumstances were unknown to this plaintiff, and which defendant fraudulently suppressed and concealed from this plaintiff; that such statement was made -by defendant with the intent that plaintiff should act in reliance thereon, 1176. Representation by Defendant of Intent Regarding Future Action by Him."- [Sustained in Gabriel v. Graham, 168 App. 847, 154 N. Y. Supp. 493.] I. [As in Form 1169, continuing:] he intended and was about to [state what, as] enter into a brokerage business with one M. N., that they were to personally give their attention to such business, and desired plaintiff to contribute the sum of dollars and become a silent partner in such busi- ness. II. [As in Form 1169.] III. [As in Form 1169, continuing:] That defendant never intended to enter into such business, and said M. N. never intended to enter therein, and defendant and M. N. did not enter into such business. IV. That defendant has not returned to plaintiff any portion of said sum of dollars, given to him by plaintiff as a contribution to such business, and plaintiff has suffered damage in the sum of dollars. Wherefore [demand for judgment]. 1177. Allegation Against Defendant who Retains Benefit, Though he did not Authorize or Participate in Fraud- tilent Representations.'" [After appropriate allegations charging a co-defendant, or to charge him with knowledge of the Gabriel v. Graham, supra; Adams v. falsity of the representations. Gillig, 199 N. Y. 314. '2 A representation of present in- '" That a defendant may be held tent to do or not to do a future act is liable under these circumstances was one of fact, and to profess such an held in Green v. des Carets, 210 N. Y'. intent when none in fact exists pre- 79, from the opinion in which case seats a case of fraudulent misrepre- this form is adapted, sentation on which an action will lie. If the stock is bought directly from Actions for Fraud and Deceit 1285 person not a party to the action, with the false representations, scienter, and intent to deceive, and plaintiff's reliance thereon, and consequent injury — as in other forms.] That the said [stock] so purchased by plaintiff was [in part] owned by the defendant Y. Z., who received [a portion of] the consideration paid by plaintiff therefor and retains the same; that prior to the commencement of this action plaintiff notified defendant Y. Z. of the fraudulent transac- tion as hereinbefore set forth, and said Y. Z. then had power to repudiate the same but on the contrary adopted and re- tained the benefits thereof. 1178. Against Seller of Horse; General Representation as to Condition or Character.^'' [From Booth t>. Engbert, 105 App. Div. 284, 94 N. Y. Supp. 700; Newman v. West, 101 App. Div. 288, 91 N. Y. Supp. 740; Steinam v. Bell, 7 Misc. 318, 57 N. Y. State Rep. 462, 27 N. Y. Supp. 905.] ^^ I. That on or about the day of , 19 , at , the defendant offered to sell to plaintiff a certain mare, and then and there falsely and fraudulently repre- sented [state, as:] that said mare was sound, free from fault and correct in every respect.^® II. That plaintiff relied upon said representations, and believed the same to be true, and was induced thereby, and did then and there purchase said mare from the defendant and paid him therefor the sum of dollars. the corporation, it may be made a ™ Althougli an express warranty of defendant. Churchill v. St. Geo. quality is taken by the buyer, yet if Dev. Co., 174 App. Div. 1, 160 N. Y. he was induced to take the warranty Supp. 357; Reusens i'. Morton, 138 and make the purchase in reliance App. Div. 886, 122 N. Y. Supp. 821. upon false representations by the '*See Form 1179, for a precedent seller, knowingly made and with where the representation covers the intent to deceive him, the action character of a visible defect in the for fraud will lie. Indiana, etc., R}-. animal. Co. v. Tyng, 63 N. Y. 654; Fogarty " See for other authorities upon v. Barnes, 16 R. I. 627, 18 Atl. Rep. the sufficiency of this form, notes to 982. Form 1169. 1286 Abbott's Forms of Pleading III. That said representations were false and were known to the defendant to be false when he made them, and were made with intent to deceive and defraud the plaintiff; [state true condition, as:] that said mare was not sound, nor free from fault nor correct in every respect, but was un- sound, unkind and unreliable, as well as restive and un- governable in harness, and had an equine disease, viz. [specify same]. IV. That said mare was then worth dollars less than she would have been had she been as represented by defendant; that plaintiff has necessarily spent the sum of dollars in endeavoring to cure said mare of her said disease.'^ V. That by reason of the premises plaintiff has been dam- aged dollars. Wherefore [etc., demand of judgment]. 1179. Where the Representations Covered the Cause or Character of a Patent Defect.^* [Adapted from Ross v. Mather, 51 N. Y. 108.] 3«" I. That on or about the day of , 19 , at , the defendant offered to sell to the plaintiff a [certain gray horse], which was then and there [lame in his left hind leg], and falsely and fraudulently then and there represented to the plaintiff that [said horse had been out to pasture during the same summer, and had broken the foot of said leg, and the said lameness resulted from said injury to his foot, and was in his said foot, and was located nowhere else, and originated from no other cause whatever, and that he had been lame for only about two weeks previous thereto, " A complaint for deceit in sale of ^ See notes to general form, No. a horse is bad if it fails to show that 1169, and to the precedent for an plaintiff has sustained damage. The action based on a general represen- actual value of the horse should be tation of condition or character, averred, and the value if the horse No. 1178. had been as represented. Gilchrest '"' Corrected to remove any possi- V. Nanker (Neb.), 60 N. W. Rep. bility of a claim that the action was 906. for a breach of warranty. Actions for Fraud and Deceit 1287 and that said lameness and injury were only of a temporary character, and he soon would be well of the same]. II. That the plaintiff rehed upon said representations, and beUeved them to be true, and was thereby induced to and did purchase said horse of the defendant, and paid him therefor the sum of dollars; that at the time of said representations of the defendant and of said sale, the said horse was not lame in his left hind foot, but [was then lame in the gambrel joint of his left hind leg, which was then and had been for more than two weeks theretofore badly dis- eased, from which originated his said lameness, and not from any injuries he had received to his foot, nor from any other cause], which the defendant at the time of making such sale and representations to the plaintiff as aforesaid, well knew; that defendant made such representations with intent to deceive and defraud the plaintiff, and with intent that plaintiff rely thereon and be thereby induced to purchase said horse. III. That said horse has ever since continued to be, and is yet, lame and unsound in his said left hind leg, and was at the time of such sale of little value, viz., of the value of not more than dollars, and the plaintiff has been put to great expense in his care and keeping, amounting to dollars; that said horse would have been of the value of dollars, if his lameness had been as represented by defendant. IV. That plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1180. Against Seller, for Fraud in Representing Quality of Goods. '^ I. That on or about the day of , 19 , " From Marshall y. Fowler, 7 Hun edge. See, also, Forms 1174 and (N. Y.), 237, where the court held 1175, and notes. that the allegations of the complaint' A warranty of quality does not were not sustained by proof that defeat an action for fraud in inducing plaintiff recklessly made the false the sale. Indianapolis, etc., Ry. Co. representations without actual knowl- v. Tyng, 63 N. Y. 653. 1288 Abbott's Forms of Pleading at , the defendant offered to sell to plaintiff [ bushels of apples], and falsely and fraudulently stated and represented to plaintiff that [they were a first rate and choice lot of Niagara County winter apples]. • II. That plaintiff relied upon said representation, and believed the same to be true, and was thereby induced to buy said apples and to pay to defendant therefor the sum of* dollars. III. That said representation was false, and was known to the defendant when made to be false, and was made by him with intent to deceive and defraud the plaintiff; that said apples were not [a first rate or choice lot of Niagara County winter apples], but were [state actual condition and quality] and were then worth dollars less than if they had been as so represented. IV. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment. 1181. For Fraudulently Delivering Inferior Quality or Smaller Quantity than Agreed.''" I. That the plaintiff, on or about the day of , 19 , at , bought of the defendant, and the defendant sold and agreed to deliver to the plaintiff [briefly designate the merchandise and price — e. g., thus — tons of — pea — coal], for the price of dollars [per ton].- [In case of prepayment of price: That the defendant intend- ing to deceive and defraud the plaintiff, and without intend- in Barrett Man Co. o. Sergeant, tations, or should separately state 149 App. Div. 1, 133 N. Y. Supp. the causes of action arising upon 526, plaintiff charged the falsity of different sales. the representations, both as to quan- Authorities establishing the suf- tity and quality, of goods delivered fieiency of the form may be found during a period of years; the court cited in the notes to Form 1169. held that the complaint should allege *> Adapted from complaints in whether the deliveries were under People v. O'Brien, 209 N. Y. 366, and one agreement of sale, preceded or Barrett Mfg. Co. v. Sergeant, 149 accompanied by the false represen- App. Div. 1, 133 N. Y. Supp. 526. Actions for Fraud and Deceit 1289 ing to deliver such quality or quantity, induced plaintiff to, and plaintiff then and there did, pay to defendant the full price for said quantity, and in so doing relied upon defend- ant's said promise to deliver said quantity and quahty of coal as aforesaid.] II. -That thereafter, and on or about the day of , 19 , defendant fraudulently and with intent to deceive and defraud plaintiff delivered to plaintiff only tons of coal] as and for the said quantity of [ tons] so bargained and paid for and sold, and repre- sented and pretended it to be said quantity of [ tons], though he well knew that the [coal] so delivered com- prised only [ tons], and did not comprise the quan- tity so bargained and paid for by plaintiff, to wit [ tons]." [If the quality was not as agreed, allege: That said — coal — so deUvered by defendant was not — ^pea coal — but was an inferior grade of coal of the value of — one dollar per ton less than pea coal, — but defendant falsely and fraudulently represented that the coal delivered was pea coal and in accordance with said agreement of sale; that defendant well knew that said coal so delivered was of an inferior quality and intended to and did deceive plaintiff with respect thereto and induce him to accept said coal as in conformity with defendant's said agreement.] III. That plaintiff believed the [coal] so delivered was [pea coal and was] the full quantity of [ tons], and accepted the same as [proper quality and] such full quantity [and in reliance thereon paid therefor the full agreed pur- chase price of dollars]. IV. That plaintiff has been damaged by reason of the premises dollars. . Wherefore [etc., demand of judgment]. ^^In People v. O'Brien, supra, allegation was necessary that the the action was based on the delivery public official who accepted the de- of an inferior quality under a public livery was deceived, or acted cor- contract. The court held that an ruptly or coUusively. 1290 Abbott's Forms of Pleading 1182. Against Seller of Chattels, for Fraudulently Repre- senting them to be his Property.*^ I. That on or about the day of , 19 > at , the defendant offered to sell to the plaintiff a certain [horse], and, with intent to deceive and defraud the plaintiff, falsely and fraudulently represented to him that said horse was the property of defendant [or otherwise, as the representations were]. II. That the plaintiff relied on said representations, and was thereby induced to purchase and did piu"chase said horse of the defendant, and paid him therefor the sum of dollars. III. That, in truth, and as defendant then well knew, said representations were false; that said horse was not the prop- erty of the defendant, but was the property of one M. N. [or otherwise state specifically the particulars in which the representations were false], [If recovery by the true owner has been suffered it may be alleged as an estoppel, thus:] ^^ IV. That thereafter the said M. N. sued this plaintiff in the Court to recover possession — or, the value — of said horse; that plaintiff immediately notified defendant of the pendency of said action, and offered to allow him and requested him to defend the same, but defendant neglected and^ refused so to do; that thereafter, and on or about the ^^ For authorities upon the suf- addition to any further proximate ficiency of the form, see Form 1169. damage suffered, substantially as in Compare with this the form of the action for fraud and deceit (see complaint for a false warranty of Form 683). The action on the war- title; Form 683. ranty would not require proof of That a complaint containing these scienter and intent to deceive, allegations is founded on the fraud, *' An allegation that the true not on the contract, see McDuflSe v. owner had recovered against the Beddoe, 7 Hill (N. Y.), 578. An ac- plaintiff on the ground that defendant tion for money received would of was not the owner, is proper, course lie, in which the amount paid The fact of recovery by the right- and interest would be the measure ful owner against the buyer is con- of damages. Or an action for breach elusive against the fraudulent seller of warranty, in which the value of who has had notice of the suit. Bar- the article itself would be allowed, in ney v. Dewey, 13 Johns. (N. Y.) 224. Actions for Fraud and Deceit 1291 day of , 19 , the said M. N. duly re- covered a judgment against the plaintiff for the possession of said horse, and for the sum of dollars damages— or otherwise according to fact—which sum this plaintiff has since paid [and said horse was thereunder taken from plain- tiff's possession and delivered to said M. N.]. V. That said horse was of the value of dollars [and plaintiff has necessarily expended the sum of dollars in and about said action]; that by reason of the premises, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1183. The Same, Where Plaintiff had Regained Part of the Goods Through a Replevin Action." [Complaint sustained in Shant v. Schauroth, 46 App. Div. 450, 61 N. Y. Supp. 767.] [After alleging the cause of action as in Form 1171 or 1200:] That prior to the commencement of this action, and on or about the day of • , 19 , plaintiff brought an action against defendant [or, one M. N.] to replevy [a portion of] the above mentioned goods, and that such pro- ceedings were thereafter had in said action that plaintiff regained possession of goods to the amount and value of dollars [or, that said action was settled for the sum of dollars with the consent of the defendant herein] ; that plaintiff necessarily expended the sum of dollars in and about the prosecution of said action. 1184. For Fraudulent Misrepresentations in Connection with Sale of Land.*^ [Adapted from King «>. Mott, 37 App. Div. 124, 56 N. Y. Supp. 213.] ^* That the bringing of such an regained, see Shaut v. Schaurath, action does not constitute such an supra; "Hyde & Sons v. Lesser, 93 election as will bar a subsequent App. Div. 320, 87 N. Y. Supp. 378. action for damages for the fraud, *' Fraudulent representations, or covering the value of the goods not deceit, accompanied by damage, con- 1292 Abbott's Forms of Pleading I. That the plaintiff, on or about the day of , 19 , at , bargained with the defendant to buy of him a tract of land, situate in [very briefly designate it], which said piece of land the defendant then and there, with intent to deceive and defraud the plaintiff, and as an inducement for plaintiff to make said purchase, falsely and fraudulently represented to him [to contain acres,] when the defendant then well knew that [it contained only acres] /^ II. That the plaintiff relied upon the truth of said repre- sentations and believed said piece of land to contain the said quantity of acres, and was induced thereby to buy the same, and to pay to the said defendant, for said piece of land, the sum of dollars. ^^ III. That in truth the said piece of land did not contain acres, but only acres, and was worth dollars less than it would have been had it con- tained the full quantity of acres, whereby plaintiff has sustained damages to the amount of dollars.''* Wherefore [etc., demand of judgment]. 1185. Against Seller of Real Property, who has no Title.^^ I. That on or about the day of , 19 , stitute a good ground of action in re- the rents which tenants were stated spect to a sale of lands as much as in to be paying. In Grockie v. Hirsh- respect to personal property. Gran- field, 50 App. Div. 87, 63 N. Y. Supp. dall V. Bryan, 5 Abb. Pr. (N. Y.) 162; 365, that the premises were unin- Clark V. Baird, 9 N. Y. 183; and see cumbered. See next form for prece- Haight V. Hayt, 19 id. 464; Tyner dent where defendant did not have V. Cotter (Wise), 30 N. W. Rep. title. 785; Schumaker v. Mather, 133 " When the fraudulent represen- N. Y. 590; Salisbury v. Howe, 87 id. tations relate to the quantity of the 128. land, it is immaterial whether the sale ** In Blumenfeld v. Stine, 96 App. is in gross or by the acre. Thomas Div. 160, 89 N. Y. Supp. 85, the v. Beebe, 25 N. Y. 244. fraudulent representations were mis- ^ For the measure of damages see statements of the amount of assess- Ettlinger v. Weil, 184 N. Y. 179; ments, matters of public 'record; Fox v. Hirshfeld, 157 App. Div. 364, the complaint was held sufficient. 142 N. Y. Supp. 261 ; King v. Mott, In Ettlinger v. Weil, 184 N. Y. 37 App. Div. 124, 56 N. Y. Supp. 213. 179, the representations related to *' Adapted from Grosjean v. Galo- Actions for Fraud and Deceit 1293 at , the defendant offered, in consideration of the sum of dollars to be paid to him by plaintiff, that he, defendant, would sell and convey to plaintiff [briefly mention property]. II. That at the time of the making of said offer said de- fendant represented to plaintiff that he was the owner in fee of said premises; that said representations were false, and were known by defendant to be false when made,^" and were made with intent to deceive and defrauad plaintiff, and to induce plaintiff to enter into said contract and to induce him to pay the said sum of dollars; that in fact defendant had no title to any portion thereof. III. That plaintiff believed that defendant was the owner of said premises, and in reliance upon said representations, accepted from defendant an alleged deed of said premises and made the aforesaid payment of dollars to defendant. IV. That by reason of the premises plaintiff has been damaged dollars." Wherefore [etc., demand of judgment]. 1186. Against Seller of Stock " for False Representations ^^ as to the Corporation.^* I. That on or about the day of > 19 , at , the defendants [represented to plaintiff that they - had organized a company known as the Company, way, 64 App. Div. 547, 72 N. Y. "See Form 1197, for complaint Supp. 331. in action for fraud in inducing plain- That such an action will lie, see tiff to sell his stock Carr w. Sanger, 138 App. Div. 32, "See Form 1177, for allegations 122 N. Y. Supp. 593; Barnes n. Un. where the representations were made Pac. Ry. Co., 54 Fed. Rep. 87. by another, but defendants received *" In Barnes v. Union Pacific Ry. and retained the fruits of the fraud. Co., supra, the complaint charged ^* The sufficiency of the form is up- defendant with making the represen- held in Foote v. Leary, 103 App. tations as of its actual knowledge Div. 547, 93 N. Y. Supp. 169; Van when it had none. See, also, allega- Slochem v. Villard, 207 N. Y. 587) tion and notes to Form 1174. Fredericks v. Krender, 137 App. Div. ^' The value of the premises agreed 325, 121 N. Y. Supp. 1001; Potts v. to be sold. Grosjean v. Galloway, Lambie, 138 App. Div. 144, 122 supra. N. Y. Supp. 935. 1294 Abbott's Forms op Pleading of which the defendant W. X. was president and the de- fendant Y. Z. was secretary, and then and there and] for the purpose of inducing plaintiff to buy stock therein ^^ falsely and fraudulently represented to plaintiff [state representa- tions made, as] that the Company owned the ex- clusive right to sell in the counties of an invention known as , and which was of wide use and great value; ^^ that M. N. and 0. P., of , who were known to plaintiff as men of character and pecuniary responsibility, had taken shares in said company.'^'' II. That plaintiff relied upon said representations, and was induced thereby to and did buy shares of the capi- tal stock of said company, and paid defendants there- for dollars.^* '* Plaintiff should allege the in- tent with which the representations were made, and that he was in- duced to act in accordance with such intent. PoUak v. Dodge Man. Co., 78 Misc. 350, 138 N. Y. Supp. 429. ^' A representation that the stock is ''of great value" will not support the action (Van Slochem v. Villard, 207 N. Y. 587); but a statement that the market price of the stock is so much, or an untrue statement of the value, made with knowledge and with intent to deceive, where the purchaser has not equal means of knowledge and is induced to forbear inquiries which he otherwise would have made, will support the ac- tion. See Ellis v. Andrews, 56 N. Y. 83; Simar v. Canaday, 53 id. 298. *' See Form 1170, for allegations where the representations were made 'by means of a prospectus, or circular, or advertisement. The representations must ordina- rily relate to existing facts or present intention. See, for example, Wilson u. Meyer, 154 App. Div. 300, 138 N. Y. Supp. 1048; also note at be- ginning of this chapter. Representations as to the condi- tion of the corporation, the character and value of its assets and amount of its liabilities, dividends paid and earnings made, are the usual type which support the action. See Tripler v. Fairchild, 167 - App. Div. 195, 152 N. Y. Supp. 624; Byrstom V. HiUard, 175 App. Div. 433, 162 N. Y. Supp. 100. In Bevan v. Roach, 142 App. Div. 541, 127 N. Y. Supp. 68, defendant claimed he had confidential "inside information" af- fecting future value. In Niles v. Yoakum, 179 App. Div. 75, the charge was that the defendant of- ficers had carried assets at false and fictitious values. ^ A purchase by plaintiff in open market wiU support the action. Ottinger v. Bennett, 203 N. Y. 554; Rensens v. Gerard, 160 App. Div. 625, 146 N. Y. Supp. 86. A complaint is sufficient although it fails to show that plaintiff has paid anything for the stock. Stirrup Actions for Fraud and Deceit 1295 III. That said representations were false, and were known to defendants to be false when made and were made with intent to deceive plaintiff; ^' [allege true facts, as:] that defendants, for the purpose of cheating and defrauding plaintiff and others, had devised and carried out the scheme of organizing said company, and had procured said M. N. and 0. P., and others, to become stockholders and to give their notes in apparent payment for the stock subscribed by them, but under the secret agreement that said notes were not to be paid, but were to be given up after being used to induce others to purchase stock; that said notes were in fact there- after given up to the persons making them ; that said inven- tion is and was at said time unknown, and wholly worth- less,*" and the stock of said company was then and is of no value whatever.*^ IV. That by reason of the premises plaintiff has been damaged dollars."^ '^ Wherefore [etc., demand of judgment]. V. Trafton, 77 Misc. 473, 136 \. Y. tract. See Gay lord v. Brown, 128 Supp. 1052. App. Div. 340, 112 N. Y. Supp. ^'' If defendant was at the time an 745. officer of the company this fact °^ The measure of damage is the may be properly alleged, although difference between its actual value it is not essential to plaintiff's action and what would have been the value even though the stock is purchased of the stock if the representations from the corporation, or from other had been true. Benedict v. Guardian persons. Trust Co., 92 App. Div. 103, 86 6» To allege of a corporate franchise N. Y. Supp. 370, aff'd 180 N. Y. that it is "invalid and worthless" 558; Tripler v. Fairchild, 167 App. is insufficient, as involving a mere Div. 195, 152 N. Y. Supp. 624; conclusion. Eppley v. Kennedy, Spotten v. De Freest, 140 App. Div. 131 App. Div. 1, 115 N. Y. Supp. 792, 125 N. Y. Supp. 497. 360. • A complaint showing that plaintiff " No offer to return the stock is bought stock, and rendered services necessary before bringing the action. to the corporation for which he was Miller v. Barber, 66 N. Y. 558. A not paid, induced by defendant's different /ule would apply if plaintiff representations, states but a single had sued upon an implied promise cause of action with different ele- to restore the consideration upon ments of damage resulting. Whitner the plaintiff's rescission of the con- v. Perhacs, 25 Abb. N. C. (N. Y.) 130. 1296 Abbott's Forms of Pmading 1187. Against Directors or Officers of Corporation, who Issue a False Prospectus, or Statement of its Affairs, with Knowledge.^' I. That at all the times hereinafter stated the defendants were [and still are] directors of the Company; that on or about the day of > 19 > the defend- ants [names, with the knowledge, consent and co-operation of defendants — names — caused to be] *^ prepared for general circulation and distributed among the public a certain pros- pectus or circular [purporting to be signed by them and] which contained the following statements regarding the con- dition and prospects of said company : *^ [here set forth the representations relied upon; or annex a copy of the prospectus and properly refer to it].^^ II. That plaintiff at said time was wholly ignorant of the •true condition of said company; that a copy of said pros- pectus came into plaintiff's possession, and plaintiff believed the statements therein contained and hereinbefore set forth, and relied thereupon, and was thereby induced to and did on or about the day of , 19 , buy [from said company] ^'' shares of its capital stock, and paid therefor the sum of dollars. 8' For the statutory liability of of- Div. 197, 157 N. Y. Supp. 413, and fleers or directors of a stock corpora- authorities therein reviewed, tion in New York State for a false ** The form here given is for use report, certificate or public notice, only when the gravamen of the action and without regard to scienter, see is fraud, actual and intentional; no Form 1322, under the Stock Cor- case of misjudgment, or want of poration Law, § 35; Huntington v. caution wiU support this complaint. Attrill, 146 U. S. 657. See Bell v. James, 128. App. Div. For forms of complaints in actions 241, 112 N. Y. Supp. 750; Lyon v. to enforce the statutory liability of James, 97 App. Div. 385, 90 N. Y. directors, see Chapter LI. Supp. 28, aff'd 181 N. Y. 512; By- " Spotten V. DeFreest, 140 App. strom v. Villard, 175 App. Div. 433, Div. 792, 125 N. Y. Supp. 497; Keeler 162 N. Y. Supp. 100. V. Dunham, 114 App. Div. 94, 99 N. ™ See Form 1170, for another prec- Y. Supp. 969. As to the liability of edent for alleging the issuance of a a director who does not have any part prospectus, and notes thereto, in the preparation of the prospectus, " If the company received the see Ottman v. Blaugas Co., 171 App. profits of the sale it may be made a Actions for Fraud and Deceit 1297 III. That said statements contained in said prospectus were false and were known to defendants to be false when made, and were made by defendants with intent to deceive and defraud whomsoever might obtain a copy thereof by inducing him to purchase stock of said company; [here nega- tive the statements relied upon,_ and allege afflrmatively and briefly the true situation. See other forms under this title]. IV. That said stock was then and is wholly worthless ^^ [or otherwise show resulting damage by reason of plaintiff's purchase], and plaintiff has suffered damage in the sum of dollars. ^^ Wherefore [etc., demand of judgment].'"' 1188. Against Directors of Corporation for False Repre- sentations of the Amount of Capital." I. That in the year 19 , a company known as [name of corporation] was organized in this State for the purpose, among other things, of [here state objects as set out in charter or articles of association]. II. That said company was pretended to be organized imder the provisions of an act of the Legislature of this State, passed ,19 , entitled [title]. III. That the pretended charter of said company pro- vided that its business should be conducted upon the plan of mutual insurance; that its capital should be dollars; defendant, under the principle that volve quite similar facts: Keeler v. by retaining them it ratifies the fraud. Dunham, 114 App. Div. 94, 99 N. Y. Churchill v. St. Geo. Devel. Co., 174 Supp. 969; Bystrom v. Villard, 175 App. Div. 1, 160 N. Y. Supp. 357. App. Div. 433, 162 N. Y. Supp. 100; °* The allegation should refer to Ball v. Gerard, 160 App. Div. 619, the value at the time of the sale. 146 N. Y. Supp. 81, aff'd 221 N. Y. Stuart V. Lyman, 62 App. Div. 182, 786; Lehman-Charley v. Bartlett, 135 70 N. Y. Supp. 936. App. Div. 674, 120 N. Y. Supp. 501. "' See note on measure of damages '' This form is sustained by Harper to preceding form. v. Chamberlain, 11 Abb. Pr. (N. Y.) ™ See notes to general form of 234. For a complaint for fraudulent complaint in this action (Form representations as to the value of No. 1169), and notes to preceding stock, whereby the plaintiff was in- form, for authorities on its suf- duced to purchase it, see preceding ficienoy. The following cases in- forms. 129S , Abbott's Forms of Pleading that its directors might unite a cash capital of not less than , nor more than dollars, as an additional security to the insured, above the fund of dollars, also mentioned in said charter; and also that its principal office should be located in the city of IV. That upon or after the organization of said company, and prior to the month of , 19 , the defendants, and each of them, became trustees or directors of said com- pany, and accepted and entered upon office as such; and were, during said [month], and before and afterwards, trustees or directors of said company. V. That the defendants, as such directors or trustees of said company, falsely and fraudulently, and with the intent to induce plaintiff and others to effect insurance with said company, and pay it premiums therefor, did [at many times prior to and during the first week of said month] publish, advertise, aver and represent to the pubhc at large and to plaintiff [and to the confidential advisers of plaintiff], that the capital of said company was [a sum largely exceeding the actual capital]; and that said company was possessed of a paid-up capital of said last-mentioned sum; and that said company was solvent and responsible, and able to pay any losses to the amount of said last-mentioned smn; and said defendants did falsely and fraudulently, and with like intent, prepare, and pubUsh and exhibit to plaintiff [and the confidential advisers of plaintiff, intending that said ad- visers should communicate the same to the plaintiff] a form of policy containing a statement that the capital of said company was said last-mentioned sum; whereas the fact was, and these defendants then well knew, that said com- pany had never raised and never was possessed of a capital of said last-mentioned smn in any form, and that it had never raised and never was possessed of any cash capital exceeding dollars; and that the said company never did raise a capital in any form of the value of even dollars. VI. That plaintiff confided in the representations afore- Actions for Fraud and Deceit 1299 said made to him by the defendants, and confided in the general reputation of said company, produced by the repre- sentations aforesaid made by defendants to the public at large [and was further advised thereto by the confidential advisers of plaintiff, who were misled by the representations aforesaid made to them by the defendants], and beheved, in consequence of the premises, that the said company was possessed of an actual capital of dollars, paid in or secured in some of the ways prescribed by the provisions of the aforesaid act, hereinbefore referred to, and was induced to enter into a contract with said company for an insurance, as hereinafter stated, upon the material, stock, fixtures and other property of plaintiff, used by him in his business, for one year from the day of , 19 ; and plain- tiff, confiding and believing as aforesaid, was induced by the premises to pay, and on or about the day of ,19 , did pay to the said company, and to the defend- ants, as directors or trustees thereof, the sum of dollars as premium upon such insurance; and was induced by the premises to make said insurance with said company, instead of making it with other companies, of which there then were a great number solvent, responsible and willing to make such insurance on the property described in said policy. VII. That the said company did, on or about the day of , 19 ) execute and deliver to plaintiff its policy of insurance [a true copy whereof is hereto annexed, marked Exhibit A], whereby the said company, in considera- tion of dollars, to it paid by plaintiff, the receipt whereof was thereby acknowledged, did insure plaintiff against loss or damage by fire, to the amount of dollars, on his [printing and book materials, stock, paper, stereotype plates, fixtures, printed books, and steam engine and machinery], contained in the premises in the city of New York, described in said policy, for the term of one year from said day. VIII. That on the day of , 19 , the said [insured property] described in said policy of insurance. 1300 Abbott's Forms of Pleading was by misfortune, and without fraud or evil practice, dam- aged, consumed and lost by fire, not happening by means of any invasion, insurrection, riot or civil commotion, or any military or usurped power [or otherwise according to the policy] ; and that, by the said fire, the plaintiff sustained loss and damage, in and by the consuming, damage, loss and destruc- tion of said property, to the amount of dollars, estimating the said loss at the true and actual value of the property at the time of the happening of said fire. IX. That, at the time of said fire, there were other in- surances effected by plaintiff, as permitted by said policy, on the same property, to the aggregate amount of dollars only. X. That, at the time of making said insurance, and from then until the fire above mentioned, plaintiff had an interest in the said property insured as the owner thereof, and was, and now is, the lawful owner and holder of the claim arising upon said policy and loss against the said company. XI. That plaintiff duly fulfilled all the conditions of said policy of insurance upon his part, and did forthwith, after the said loss and damage by fire, give notice thereof to the said company, and did, as soon thereafter as possible, and on or about the day of , 19 , deliver to said company a particular statement of said loss and dam- age, subscribed by this plaintiff, and duly verified by his oath; and plaintiff, on the day of , 19 , and at divers other times, duly demanded from said com- pany payment of the sum of dollars and interest, due to him upon said policy by reason of said loss. XII. That said company has wholly failed and is wholly unable to pay said loss; and plaintiff brought an action in the Court of against said company, to recover upon said policy for his loss sustained as aforesaid, and was put to great expense therein, and on the day of , 19 , recovered judgment therein for the full amount of his claim, and interest, and costs, to wit, dollars, and caused execution to be issued thereon; Actions for Fraud and Deceit 1301 which execution was, 6n the day of , 19 , returned wholly unsatisfied. XIII. That, by reason of the premises, plaintiff has sus- tained great damage, to wit, dollars. Wherefore [etc., demand of judgment], 1189. The Same, Against Directors for Declaring an Un- earned Dividend, Which Induced Plaintiff to Buy the Stock. [Sustained m Ottinger v. Bennett, 203 N. Y. 554, reversing 144 App. Div. 525, 129 N. Y. Supp. 819, on dissenting opinion below.] I. That at the times hereinafter mentioned defendants were directors of the Company, a corporation or- ganized and existing under the laws of the State of II. That at a meeting of the board of directors of said company, held at , on the day of , 19 , a dividend of per cent was declared by said board upon the [common] stock of said company, payable to stockholders of record on the day of , 19 ; [that the defendants were present at said meeting, and voted for the declaration of said dividend]. '^^ III. That the said dividend was not made or declared from the surplus or net profits arising from the business of said company, and had not been earned by said company, but was declared and was subsequently paid out of the capital of said company. IV. [If the corporation was not a domestic corporation:] That at the time of the declaration of said dividend the statutes of the State of provided that no corpora- tion should make a dividend except from the surplus or net profits arising from its business [or otherwise according to the statutory provisions]P " The precedent did not show that view of the allegations of their sub- the defendants were present at the sequent participation in the repre- meeting and voted for the dividend, sentation. but this was held unnecessary in '^ The fact that the statute makes 1302 Abbott's Forms of Pleading V. That the defendants well knew at the time of the dec- laration of said dividend that the same was not declared out of the surplus or net profits arising from the business of the corporation. VI. That said defendants caused the fact of the declara- tion of said dividend to be pubUshed in various newspapers, ^and information thereof to be disseminated among the pubUc generally; that each of the defendants intended that the said declaration of said dividend should be regarded by the general pubhc as a representation on their part that the said dividend had been earned and declared from the surplus or net profits arising from the business of said corpo- ration, and that said representations were made by defend- ants with intent to deceive the public and to induce persons to purchase shares of the [common] stock of said corpora- tion. VII. That plaintiff relied upon said representations and believed them to be true, and was thereby induced to and did buy on the day of , 19 • , shares of said [common] stock of said corporation, and paid therefor the sum of dollars. VIII. That if said dividend so declared as aforesaid had been in fact earned and declared out of the surplus or net profits of said corporation arising out of its business, each share of the [common] stock thereof would have been worth the sum of at least dollars per share; that said stock was at such time intrinsically worthless and of no value, and the market price thereof has declined so that the same is worth practically nothing. IX. That by reason of the premises plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand of judgment]. the declaring of such a dividend an the act was unlawful is an element unlawful act and gives a right of to be taken into consideration in action against the directors therefor, determining the character of the does not result in this action being representation made. Ottinger v. rested on the statute; the fact that Bennett, supra. Actions for Fraud and Deceit 1303 1190. For Fraudulentiy Misrepresenting Value of Good Will of Business.'* I. That on or about the day of , 19 , at , the defendant was engaged in business as , and offered to sell out the [stock, fixtures, and] good will of his said business to the plaintiff [or, offered to plaintiff a one-half share in said business as a co-partner with him]; that thereupon defendant, with intent to deceive and de- fraud the plaintiff, and to induce him to purchase said busi- ness, falsely and fraudulently represented to Tiim that the said business, as theretofore conducted by defendant, was a profitable business, and that the net profits thereof, realized by the defendant during the year ending the day of ,19 , had exceeded the sum of dollars [or otherwise, as the representations were]. II. That this plaintiff reUed on said representations, and was induced thereby to purchase, and did purchase of de- fendant the said [stock, fixtures, and] good will of defendant, and paid him therefor the sum of dollars [or, was induced thereby to enter into partnership with defendant in said business, and to pay to defendant the sum of dollars for a one-half interest therein]." III. That in truth, and as defendant then well knew, said representations were false; that said business was not a profitable business, and the defendant had not realized any profits whatever from the same during the year ending the day of , 19 , [or otherwise state specifically the particulars in which the representations were false]. '* Adapted from complaints in The representation may be es- Hubbard v. Richardson, 31 App. tablished notwithstanding that the Div. 520, 52 N. Y. Supp. 35; Packard written contract of sale makes no V. Pratt, 115 Mass. 405. mention of it. Dobell v. Stevens, An opportunity for an examina- 3 B. & C. 623. tion of defendant's shop books, of "In Hubbard v. Richardson, 31 which plaintiff did not avail himself, App. Div. 520, 52 N. Y. Supp. 35, will not defeat an action for a rescis- plaintiff had been induced to be- sion. Redgrave v. Hurd (N. Y. Ct. come a co-partner with defend- of App. 1882), 30 Wkly. Rep. 253. ant. 1304 Abbott's Forms of Pleading IV. That by reason of the premises, plaintiff has been damaged dollars/* Wherefore [etc., demand of judgment]. 1191. For Procuring Loan upon False Representations Regarding Security Given as Collateral." I. That on or about the day of , 19 , at , the defendant falsely and fraudulently repre- sented to plaintiff [that one M. N. was doing a large and prosperous business as a at , was wholly solvent and able to pay his debts, and was worth the sum of dollars, over his debts and liabilities]. II. That plaintiff believed said representations and relied thereon, and was thereby induced to and did loan to the defendant the siun of dollars, and then and there received from the defendant as collateral security the promissory note of said M. N. to the order of defendant for the sum of dollars, payable in months after date, and by said defendant indorsed to plaintiff.^^ III. That said representations were false, and were known to defendant when made to be false, and were made with intent to induce plaintiff rely thereon and to make the aforesaid loan; that said M. N. was at said time wholly in- solvent [state facts showing insolvency] ; that when said note became payable the same was dishonored, and is still unpaid and worthless;^' that the said loan to defendant became payable on , but the same was not paid. ™ Particular losses or expenses demurrer which fails to allege that which plaintiff seeks to recover, default has been made in the repay- should be specifically stated. ment of the loan, or that the bor- " For authorities on the general rower will be unable to pay the loan sufficiency of the form see Form at maturity, or that the collateral 1169. is not adequate security. Seman v. '* It is not necessary to set forth Becar, 15 Misc. 616, 38 N. Y. Supp. facts sufficient to hold defendant as 69. an indorser. Genin v. Schwenk, 41 The fraud would enable plaintiff N. Y. State Rep. 883, 16 N. Y. to sue for the damages without wait- Supp. 432. ing for the maturity of the loan, but "A complaint is insufficient on in such event he would probably Actions for Fraud and Deceit 1305 IV. That plaintiff has been damaged by reason aforesaid in the sum of dollars. Wherefore [etc., demand of judgment], 1192. Against Officer who Falsely States the Condition of Corporation, and Procures Discount of its Notes.^" [From Brown v. Lobdell, 50 111. App. 559.] I. That on or about the day of , 19 , at , the defendant, who was then the president of Company, applied to the plaintiff, who was then and there engaged in handling commercial paper, to there- after discount for him the notes of said company; that to induce the plaintiff to discount for him such paper, the de- fendant then and there falsely and fraudulently represented and stated to the plaintiff that the business of the said com- pany was in good condition; that it had a capital stock of dollars; that dollars of the same had been paid in in cash; that it was possessed of a large amount of accumulated profits, and that its liabilities did not exceed dollars [or otherwise according to the fact]. II. That plaintiff relied upon said statements so made as aforesaid by said defendant, and believed the same to be true, and was thereby induced to and thereafter did dis- count for said defendant the following notes of said Company [description of notes]. III. That said representations were false; that said com- pany was not [negative the representations made] ; that, on the contrary, the said Company [state true condition]. have to show the inability of the tory liability imposed upon an borrower as well. Id. officer or director for making a false ™The corporation itself may be report or statement. For forms on made a defendant if it received the the statutory liability, see post, money. See Churchill v. St. Geo. Chapter LI. See, also. Form 1187, Dev. Co., 174 App. Div. 1, 160 N. Y. and notes. Supp. 357. For the general sufficiency of the This is an action on the common- form, see authorities cited in notes law liability for deceit; it differs, in to Form 1169. important elements, from the statu- 1306 Abbott's Forms of Pleading That such statements were made by the defendant with intent that plaintiff should rely thereon, and for the purpose of deceiving the plaintiff and defrauding him. IV. That at the maturity of said notes the same were not paid, and are still in the possession of the plaintiff unpaid; [that long prior to their maturity the aforesaid company, failed in business and were closed up by process of law, and all of their property subject to execution has long since been sold, and said notes are absolutely worthless;] that plaintiff has suffered damage in the sum of dollars. Wherefore [etc., demand of judgment]. 1193. For Procuring Money from Plaintiff on a Worthless Check." I. That at ,^^ and on or about the day of ,19 , the defendant requested plaintiff to cash for him a check made by him for the sum of dollars, dated on said day, and drawn upon the Bank of , and then and there represented to plaintiff that he had on deposit in said bank an amount at least equal to the said amount of said check. II. That plaintiff believed said representations to be true, and relied thereon, and was thereby induced to and did on said day accept said check from defendant, and pay to him the sum of dollars for the purpose of so cashing the same for defendant. III. That said representations so made by defendant were false, and were known to defendant to be false when made, and were made with intent to deceive and defraud plaintiff; *i From complaint in Brown v. funds to meet it, but that he in fact Coleman, 95 App. Div. 545, 89 N. Y. had no such intent. See Form 1176 Supp. 427, corrected to meet the as to the liability in this species of court's criticism. action for representations regarding If the check was returned because some future act. of insufficient funds, change the *^ If the place of the transaction representation so as to allege that was in another jurisdiction allege the defendant represented that he the statute making the procuring of would have in the bank at the time money on a worthless check an un- of presentation thereof sufficient lawful act. See note 73 to Form 1189. Actions for Fraud and Deceit 1307 that defendant did not at said time have any amount what- ever on deposit in said bank to his credit. IV. That plaintiff thereafter and on the daj^ of ,19 , duly presented said check at said bank for payment, but payment thereof was refused on the ground that there were no funds in the possession of said bank wherewith to pay the same. V. That said check was and is worthless, and plaintiff has been damaged by reason of the premises in the sum of dollars. Wherefore [etc., demand of judgment], 1194. Against Officers of Bank, for Fraudulent Statements Inducing Plaintiff to Deposit Moneys.^' [Sustained in Solomon v. Bates, 118 No. Car. 311, 24 S. E. Rep. 478.] I. That at all the times hereinafter mentioned the defendants were [directors of the Bank], located at II. That on or about the day of , 19 , the defendants fraudulently caused a so-called semi-annual report to be made and published in the newspapers, which showed the bank to be solvent, its capital stock unimpaired, and that it had a surplus of dollars on hand; *^ that such statements were made and published by defendants for the false and fraudulent purpose of establishing the credit of the bank, to conceal its real condition and to induce the general public to deal therewith and deposit money therein.^'' *' The civil liability of national Taylor v. Thomas, 124 App. Div. Bank directora, in respect to making 63, 108 N. Y. Supp. 454. and publishing official reports re- ^^ Statutory enactments in many quired by statute, is governed by States give an action against direc- such statute and furnishes the ex- tors for false reports. See Chap- elusive rule for recovery of damages. ter LI, on actions against corporate Yates V. Jones Nat. Bank, 206 U. S. officers, post, and N. Y. Stock Cor- 158. The common-law requirements poration Law, § 35. in New York to sustain the action '' In Cassidy - v. Uhlmann, 163 for fraud and deceit are identical N. Y. 380, the defendants were with these statutory requirements. charged with fraud in the suppres- 1308 Abbott's Forms of Pleading III. That such statements were untrue, and were known to defendants to be untrue when made; 4;hat in fact said bank was then insolvent, it had no surplus whatsoever over its liabilities, and its capital stock was impaired and involved to its entire amount. IV. That the plaintiff knew of such statements, and be- lieved them to be true and relied thereon, and was induced thereby to make and did make deposits in the said bank in the years 19 and 19 , and allowed the deposits to remain therein; that such deposits amounted to the sum of dollars; that said Bank has been closed by law, and its assets fully liquidated and applied to the payments of its debts, and that no part of plaintiff's said deposit has been repaid, except the sum of dollars. V. That by reason of the premises plaintiff has been dam- aged dollars. Wherefore [etc., demand of judgment]. 1195. Against Director or Oflacer of Bank Accepting De- posit when Bank is Insolvent.^^ I. [As in preceding form.] II. That on or about the day of , 19 , said Bank was insolvent, and had been in such condition upwards of days, as defendants well knew. III. That defendants, with knowledge of such insolvent condition of said Bank, wrongfully and fraudulently per- mitted the same to be and remain open for business on said day, and thereby to invite and receive deposits of money.^^ IV. That plaintiff was ignorant of such insolvent condi- tion of said Bank, and by reason of its being permitted by sion of the truth as to the insolvency Supp. 13, aff'd 184 N. Y. 606; Cas- of the bank, and participation in sidy v. Uhlman, 163 N. Y. 380, and the direction which kept the bank 170 id. 505. open for the receipt of deposits after ^ Intentional and deliberate bad they knew of the insolvency. See faith on the part of the directors Form 1195. need not be found in order to entitle ** Adapted from Nathan v. Uhl- plaintiff to a recovery, man, 101 App. Div. 388, 92 N. Y. Actions f6r Fraud and Deceit 1309 defendants to remain open and to receive deposits plaintiff was led to believe it was solvent and was thereby induced to deposit therein on said day the sum of dollars. V. That thereafter and on or about the day of ,19 , in proceedings to procure the dissolution of said bank because of its said insolvency, receivers were duly appomted and took possession of the assets of said bank and administered the same fully; that plaintiff has received of his said deposit from said receivers the sum of dollars, and that the balance thereof has been wholly lost to plaintiff. VI. That plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 1196. The Same, for Inducing Plaintiff to Refrain from Withdrawing Deposits.^^ I. That at the times hereinafter mentioned the Company was indebted to plaintiff in the sum of dollars for money loaned [or deposited] and which sum was returnable to plaintiff upon demand; that the defendants were at said times [directors] of said corporation. II. -That on or about the day of , 19 , plaintiff decided to withdraw said deposit [or, demand the repayment of said loan]; that on said day he communicated such intention to the defendants. III. That the defendants, with intent to deceive plaintiff and induce him not to withdraw said deposit, represented to plaintiff [continue as in prior forms]. 1197. Against One Who Induces Plaintiff to Sell his Stock. I. That at the times hereinafter mentioned plaintiff was the owner of shares of the stock of the Company. II. That on or about the day of , 19 , at , defendant with intent to deceive plaintiff and "Adapted from Warner v. Jftmes, 94 App. Div, 357, 87 N, Y, Supp. 976. 1310 Abbott's Forms of Pleading induce him to sell said stock to defendant at less than its real value, represented to plaintiff [state what]. Ill and IV. [As in II and III of Form 1169.] V. That said stock was at the time of such sale to defend- ant of the actual value of at least dollars.^' VI. That* plaintiff has been damaged dollars. Wherefore [etc., demand for judgment]. 1198. For Falsely Representing the Character and Value of a Note, Whereby Plaintiff Surrenders it on Payment of Part.^'o I. That at the times hereinafter mentioned, and prior thereto, plaintiff was the owner and holder of a certain promissory note made by defendant to the order of M. N. & Co., and duly indorsed by them, for the payment of the sum of dollars, which said note was due and payable on the day of , 19 , and before its maturity had been duly transferred to the plaintiff for value; that said note was not paid at its maturity; that prior thereto the said M. N. & Co. had failed and made an assignment for the benefit of their creditors. II. That on or about the day of , 19 , and on divers days prior thereto, defendant falsely and fraudulently represented to plaintiff that said note was made by said defendant and given to said M. N. & Co. solely for their accommodation, and that no value was received by or consideration given to said defendant for said note, and that all moneys paid by him thereon would be an entire loss to him, except the possible small dividends which he might receive thereon from the assignee of said M. N. & Co. out " Since no damage will be pre- Quigley, 59 N. Y. 265, where the .sunied, a complaint is insufficient court held that the only theory of unless it alleges the actual value action stated was the fraud, and and shows that such value was more that a recovery upon the note for than plaintiff was paid. Cohen v. the unpaid balance could not be Kohler, 158 App. Div. 435, 143 N. Y. sustained. Supp. 497. For authorities on the general suf- " From complaint in Barnes v. ficiency of this form, see Form 1169. Actions for Fraud and Deceit 1311 of their assigned property; whereas, in truth and in fact, said promissory note had been made and given by said defend- ant to said M. N. & Co. for merchandise sold and deUvered by them to him, and defendant had theretofore received from them full value and consideration therefor, and that said representations were false, and were known to defendant to be false when made, and were made with the fraudulent in- tent and purpose of deceiving said plaintiff, and of inducing him to accept and surrender up said promissory note for a less sum than was due thereon, and of defrauding said plain- tiff out of the residue. III. That said plaintiff believed and relied on said repre- sentations, and was thereby induced to and did, on the said day of , 19 , accept from said defendant dollars for said promissory note, and surrendered up the same to said defendant, which sum so accepted was less than the amount then due and owing on said promissory note by the sum of dollars." IV. That by reason of the premises said plaintiff has sustained damage in the sum of dollars. Wherefore [etc., demand of judgment]. 1199. Against Judgment Debtor for Fraud in Procuring Release from Judgment, or Claim. [Sustained in Wessels v. Carr, 15 App. Div. 360, 44 N. Y. Supp. 114.] 92 I. That heretofore, and on or about the day of , 19 , plaintiff duly recovered judgment against the defendant in the Court for the sum of dollars; that no part of said judgment has been paid to plaintiff except the sum of dollars, paid as hereinafter alleged. "In Gordon v. Maas, 115 App. «^ In Nichols v. Drew, 94 N. Y. Div. 377, 100 N. Y. Supp. 891, aff'd 22, a complaint substantially similar 190 N. Y. 539, plaintiff failed to was before the court, and on de- show that he had released a third cision of demurrer for misjoinder person's obligation in reliance on was held to state a cause of action defendant's representation. in deceit. 1312 Abbott's Forms of Pleading [7/ the release was from a claim not in judgment, allege: That on or about the day of ,19 , plaintiff loaned defendant the sum of dollars, no part of which had been repaid by defendant — or otherwise show the existence of a valid existing claim].^^ II. That on or about the day of , 19 j at , the defendant falsely and fraudulently repre- sented to plaintiff that he, defendant, was a poor man and could not pay a dollar of his debts, but that if plaintiff would accept the sum of dollars, in full settlement of his said judgment [claim], and give defendant a release from all obligation thereunder, the defendant would procure a party who would take an assignment thereof for said sum. III. That plaintiff relied upon the defendant's said repre- sentations, and was thereby induced to and did receive from one M. N. the said sum of dollars, and gave the defendant a release from the obligation of said judg- ment [claim] and made an assignment thereof to said M. N.»^ IV. That said representations were false, and were known to defendant to be false when he made them, and were made with the intent to deceive and defraud plaintiff; that in fact defendant was a man of means and able to pay said judgment [claim] in full [and that said sum of dollars was not paid by M. N. but by the defendant], and the assign- ment to said M. N. was intended to deceive plaintiff into believing that defendant was a poor man and unable to pay said judgment [claim]. V. That by reason of the premises plaintiff has been dam- aged dollars. WHEREroRE [etc., demand of judgment]. '^ The fact that there was a valid "* In this action for damages, existing claim must be alleged and plaintiff need not return or offer to established, otherwise no damage return the consideration received, to plaintiff appears. Metz v. N. Y. Anderson v. Smitley, 141 App. Div. Central, etc., R. Co., 202 N. Y. 170; 421, 126 N. Y. Supp. 25; Duquette Anderson v. Smitley, 141 App. Div. v. N. Y. Central, etc., R. Co., 137 421, 126 N. Y. Supp, 25, App, Div. 412, 121 N. Y. Supp. 867. Actions for Fraud and Deceit 1313 1200. For Fraudulently Inducing Plaintiff to Sell on Credit.'^ I. That on or about the day of , 19 , at , the defendant,*® with intent to deceive and de- fraud the plaintiff, and to induce him to sell goods to one M. N. on credit, falsely and fraudulently represented to him that said M. N. was in good credit and safe to be trusted, and worth the sum of dollars over and above his debts and liabilities [or otherwise, as the fraudulent representations were]. II. That the plaintiff relied on said representations and was induced thereby, and then and there [or, between the day of and the day of , 19 , at ], sold and delivered [brieflT/ designate the goods], of the value of dollars, to said M. N. upon a credit of months; that said term of credit has ex- pired, said M. N. has wholly failed to pay for said goods [except the sum of dollars]." III. That in truth, and as defendant then well knew,'^ "' See Form 1171, where the repre- It is not necessary to show that do- sentation is regarding defendant him- fendant reaped any advantage. See self and induces sale to him. For the note at the beginning of this chapter, principles on which this action is ^ As to pleading in an action based, see Hadcock v. Osmer, 153 against defendant for fraudulently N. Y. 604; Pasley v. Freeman, 3 T. R. inducing a third person to make such 51; Addington v. Allen, 11 Wend. representations, see Addington v. (N. Y.) 374, 402. The action sur- Allen, 7 Wend. (N. Y.) 9; s. c, 11 id. vives against the estate of the one 374; Cartin v. Hardin (Me.), 7 Atl. making the false representation. Hep. 392. Mayer v. Ertheiler, 144 App. Div. °' It is not necessary to show judg- 158, 128 N. Y. Supp. 807. ment, execution and its return un- In Waller v. Rasken, 12 How. Pr. satisfied. Winter v. Bandel, 30 Ark. (N. Y.) 28, it was held that such a 362. Of course no part of the sum cause of action cannot be joined with received by plaintiff need be returned one on a guaranty of the amount of or offered to be returned. Douglass the purchase; but this view defers y. Scott, 130 App. Div. 322, 114 N. Y. more to the old forms of action than Supp. 470. See Form 1183 where to the Code. See Code Civ. Pro., plaintiff has regained part of the § 484, subd. 9; note in 24 Abb. N. C. goods by a replevin action against (N. Y.) 326; Robinson v. Flint, 7 the purchaser. Abb. Pr. (N, Y.) 393, note. " To sustain an action for fraud 1314 Abbott's Forms of Pleading said M. N. was, at the time of such representations and sale and delivery, insolvent, and not in good credit, nor safe to be trusted, nor worth anything whatever over and above his debts and Uabilities. IV. That by means of the premises the plaintiff has wholly lost said goods, and the value thereof, to his damage dollars. Wherefore [etc., demand of judgment]. 1201. Against one who Induces Delivery of Goods to Another, under a Previous Contract with Plaintiff Already Violated by the Purchaser. [Sustained in Bowen v. Carter, 124 Mass. 426.] «» I. That on or about the day of , 19 ? plaintiff took an order from one M. N., of , for cer- tain goods as set out in the bill of particulars hereunto an- nexed, and of the value of dollars, to be manufac- tured by the plaintiff in accordance with certain samples, then and there exhibited to said M. N. by the plaintiff, and to be deUvered by the plaintiff to said M. N. in said , in the month of November, 19 , on a credit of [thirty] days from the delivery thereof. II. That in November, 19 , the plaintiff had manufac- tured said goods and was ready to deliver the same to said M. N., when said M. N. informed him that he did not want said goods, and instructed him not to deliver them. III. That thereupon the plaintiff, being unable to account and deceit, false representations as to Iowa, 144. K the representation may the solvency or pecuniary condition have been stated ai of the defend- of another must, at the time, have ant's actual knowledge when he had been known to be false by the per- none, allege in the alternative, as in son making them; or he must have Form H75. assumed, or intended to convey the " The court held that it was im- impression, that he had actual knowl- material that the goods were deliv edge of their truth, though conscious ered under a previous contract if that he had no such knowledge, the plaintiff was induced by such Marsh V. Falker, 40 N. Y. 562. Ccm- representation not to rescind it tra, that knowledge of falsity will when he could properly have done alone suffice. Avery v. Chapman, 62 so. Actions for Fraud and Deceit 1315 for this conduct on the part of said M. N., and being anxious to know if said conduct proceeded from anj^ inabihty on the part of said M. N. to meet his payments, and not knowing whether to rescind his contract with said M. N. or not, in- quired of the defendant for some explanation of said con- duct and respecting the character and circumstances of said M. N.; that the defendant, with intent to deceive and de- fraud plaintiff, and in order to induce the plaintiff to sell and deUver said goods to said M. N. on credit, falsely rep- resented to the plaintiff in writing that he knew very httle of said M. N.'s business; that he had no reason to doubt said M. N.'s responsibility; that his rent and other pay- ments due to him, said defendant, by said M. N., had been made promptly by said M. N., and that he did not fully comprehend said letter from said M. N. to the plaintiff."" IV. That the plaintiff believed said representations to be true, and was thereby induced to sell and deliver, and did sell and deliver, said goods to said M. N., and was induced to give, and gave, the said M. N. credit for the price of said goods for [thirty] days from deUvery thereof. V. That when the defendant made the representations aforesaid he was fully and thoroughly acquainted with said M. N.'s business, and had reason to doubt said M. N.'s responsibility; that his rent and other payments due to the defendant had not been promptly paid by said M. N., and said defen4ant did fully comprehend said letter from said M. N. to the plaiutiff, and said M. N. was then insolvent, and not fit to be trusted with goods on credit, all whereof the defendant then knew. VI. That more than [thirty] days have elapsed since said goods were delivered to said M. N., but no part of the pur- chase price has been paid to plaintiff; that said M. N. is wholly insolvent and unable to pay for said goods. "" As to the character of the repre- the goods, the court held that it could sentations being such as merely to put not be so said as matter of law. Com- plaintiff on inquiry before delivering pare Hall v. Naylor, 18 N. Y, 588. 1316 Abbott's Forms of Pleading VII. That by reason of the premises plamtiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1202. Against Member of Firm who Falsely States its Condition, in Order to Prevent Eviction for Non- payment of Rent.^" I. That at all the times hereinafter mentioned plaintiff was the owner of premises known as [describing them]. II. That on or about the day of , 19 , plaintiff leased said premises to the firm of Y. Z. & Co., of which said firm the defendant was a member, for the term of years from 19 , at the yearly rent of dollars, payable [quarterly]; that by the terms of said lease the plaintiff, upon default in payment of any in- stallment of said rent when the same became due and pay- able, should have the right to enter upon and retake posses- sion of said premises, and that the term of said lease, at plaintiff's option, should thereupon cease and determine. III. That on the day of , 19 , the sum of dollars became due and payable by said firm under said lease, but the same was not paid; that there- upon, and in order to induce plaintiff to allow said firm to remain in possession and not to re-enter and take possession of said premises, which plaintiff intended to do and but for said representations would have done, the defendant falsely and fraudulently represented to plaintiff that said firm was entirely solvent, and amply able to pay its rent; that the i"! From complaint in N. Y. Land Defendant's co-partners are not Improvement Co. v. Chapman, 118 necessary defendants. Maxwell v. N. Y. 288. The complaint also Martin, 130 App. Div. 80, 114 N. Y. showed that plaintiff had previously Supp. 349; Hyde v. Lesser, 93 App. sued the firm (including the present Div. 320, 87 N. Y. Supp. 378. defendant) and obtained judgment In Hyde v. Lesser, supra, plaintiff for the unpaid rent, which judgment had rescinded a sale to the part- was not paid. Held, that such re- nership induced by the fraudulent covery did not relieve defendant from statements of the partner, and his individual liability on the ground had replevied a portion of the of bis fraud. goods. Actions for Fraud and Deceit 1317 only reason they were not able to pay the rent was that in legal proceedings for the wmding up and settlement of the estate of one M. N., who had been a former partner in said firm, an injunction had been obtained and served against them, preventing their paying out the money of the firm. IV. That plaintiff could have then rented said premises to other and responsible persons for the remaijader of the term of said lease, at the rent of at least dollars for the remaining period, and plaintiff had applications at that time for a lease of said premises; that plaintiff believed said rep- resentations to be true, and reUed upon them, and was thereby induced to permit said firm to remain in possession of said premises, and refrained from re-entering and taking possession thereof, and refused to lease the same to other parties, until the day of , 19 . V. That the said representations were false, and were known to defendant to be false when he made them, and were ■ made by him with the intent to deceive and defraud plaintiff; that the said firm was hopelessly insolvent and unable to pay their rent, and that no injunction of the kind stated had ever been obtained against said firm. VI. That no part of the rent accruing prior to the re- entry by plaintiff on the day of , 19 , to wit, the sum of dollars, has been paid, nor is said firm able to pay any part thereof. VII. That by reason of the premises plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1203. Against Pvirchasing Agent, who Falsely Represents the Pixrchase Price. ^°^ I. That on or about the day of , 19 , '"' From Indianapolis, etc., Ry. fraudulent intent, and, as the rem- Co. V. Tyng, 63 N. Y. 653, aff'y. 2 edies for collection would be the same, Hun, 311. such an action might be more ad- Of course an action would lie vantageously brought, against the agent for money received See, for an action involving some- without allegation or proof of the what similar facts, Tuomey v. Walsh, 1318 Abbott's Forms op Pleading defendant presented to plaintiff a description of a certain [locomotive], and then and there stated that the same was owned by M. N., and was for sale; that thereupon the plain- tiff employed the defendant as his agent to negotiate the purchase of said [locomotive,] and agreed to pay him a commission of per cent for his services in that behalf. II. That thereafter, and on or about the day of , 19 , defendant falsely and fraudulently stated and represented to plaintiff that said M. N. would not sell the said [locomotive] for less than dollars; that plaintiff relied upon said representation, and beUeved the same to be true, and was thereby induced to and did pay the defendant upon his report that he had agreed to buy said [locomotive] for plaintiff at said price, and as plaintiff's agent to consummate said purchase, the said sum of dollars for the purchase price, and the sum of dollars for his said commissions. III. That said representations were false, and were known to defendant to be false when made, and were made by de- fendant with intent to deceive and defraud the plaintiff; that said M. N. had at said time agreed to sell said [locomo- tive] for the sum of dollars; that the said M. N. was paid by defendant therefor the sum of dollars and no more. IV. That by reason aforesaid, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. 1204. Against an Agent on his Personal Liability. [From Laska v. Harris, 215 N. Y. 554.] ^"^ I. That during the year 19 , the defendant was the 160 App. Div. 795, 145 N. Y. Supp. The agent and principal may be 722. sued together, the principal's reten- "' See, also, Smith v. Bernhardt, tion of the benefits of the fraud fixing 11 N. Y. Supp. 951, 33 St. Rep. liabihty upon him as well. See Green 928. V. des Garets, 210 N. Y. 79. Actions for Fraud and Deceit 1319 general manager of the Company, and had charge of and knew all about its affairs; that on or about the day of , 19 , defendant applied to plaintiff for a sale of goods to said Company, upon credit, and thereupon stated and represented to plaintiff regarding said Company that [etc.] [Allege the character of the statement— see Form 1171 — and continue as in II, III, IV and V of Form 1169.] 1205. For Personal Injuries; Against Manufacturer who Intentionally Conceals Defect which he Knows Ren- ders the Article Dangerous. I. That prior to the day of , 19 , de- fendant was a manufacturer of [agricultural implements] at in the State of II. That prior to said day, defendant had manufactured and sold a certain [land roller], which he represented to any person who should subsequently purchase the same that it was sound, and free from any latent defect which would interfere with its use with safety, or which would prevent its use with such degree of safety as is usual with such imple- ments. III. That such representation was false, and was known to defendant to be false when made, and was made with intent to deceive any subsequent purchaser thereof; that in truth there was a defect therein of which defendant knew, and which would prevent its use with the usual degree of safety as defendant also well knew; that such defect con- sisted of [state briefly, as] the construction of the tongue of said roller of a cross-grained wood which was unfit therefor, and in addition there was a knot-hole therein which de- fendant had caused to be filled in, and said wood and knot- hole was by defendant covered with putty and paint so as to conceal such defect from the purchaser thereof."* '"* That this action, under the his damages for personal injuries, was above facts, is for fraud and deceit, held in KueUing v. Roderick Lean and that plaintiff may recover therein Mfg. Co., 183 N. Y. 78, from which 1320 Abbott's Forms of Pleading IV. That on said day of , 19 , plaintiff purchased said [land roller]; that in making such purchase plaintiff relied upon the defendant's representations, as aforesaid, and was induced thereby. V. That the aforesaid defect in said [roller] caused the same to be dangerous and unfit for use, as defendant well knew; that thereafter and on the day of , 19 , whUe plaintiff was using the same, the tongue thereof broke because of said defect therein, causing plaintiff the injuries hereinafter alleged. VI. [Allege injuries, as in Forms 973-981 under Negli- gence.] Wherefore [etc., demand of judgm£nt]. 1206. Against one who Makes a False Warranty [Tort in the Nature of an Action for Deceit]. ^"^ [From Shippen v. Bowen, 122 U. S. 575, 30 Law. Ed. 1172, 7 Sup. Ct. Rep. 1283.] '"' I. That on or about the day of , 19 , at , in consideration of the sum of dollars paid by plaintiff to him, defendant sold and agreed to deUver to plaintiff [vaHd and genuine bonds of the county of , in the State of , with interest coupons attached], and did then and there deliver to plaintiff certain sheets of written and printed paper, pmporting to be such valid and genuine bonds, but the same were false and spurious forgeries, not made or deUvered by or imposing no legal obligation upon said county. the precedent has been adapted. 636; Hohnan v. Dord, 12 Barb. (N. See, also, many authorities reviewed Y.) 336; Lasseter v. Ward, 11 Ired. therein. L. R. 444; Hehnan v. Wilcox, 30 i°* Either case or assumpsit lies at Me. 170; Price v. Cockran, 8 Gratt. common law for a false warranty, and 450; Shippen v. Bowen, 122 U. S. whether the declaration be in assump- 575. sit or tort it need not aver a scienter; ™ In this case the United States and if the averment of scienter be Supreme Court held that it was error made it need not be proved. Schu- for the judge to charge that no re- dart V. AUens, 1 Wall. (U. S.) 359, covery could be had unless knowl- 368; Dushane v. Benedict, 120 U. S. edge by defendant was shown. Actions for Fraud and Deceit 1321 II. That defendant, at the time of such sale and delivery, falsely and fraudulently represented and warranted '"' said forged and spurious bonds so dehvered by him to be genuine and vahd bonds and interest coupons of said county; that the plaintiff relied upon said representation and warranty, and received and accepted the same from defendant suppos- ing them to be such genuine and valid bonds and coupons. III. That by reason of said tortious and wrongful act and fraudulent breach of said agreement and warranty of gen- uineness done and committed by defendant in the delivery by him as aforesaid of such spurious and forged instruments, plaintiff has been damaged dollars. Wherefore [etc., demand of judgment]. "" It was said in House v. Fort, 4 fendant falsely and fraudulently war- Blackf. 293, 294, that the form of ranted," but the words falsely and declaration in tort for breach of an fraudulently in such cases are con- express warranty is " that the de- sidered as only matters of form. CHAPTER XLII COMPLAINTS IN ACTIONS FOR ASSAULT AND BATTERY PAGE 1207. General form 1322 1208. Another form, containing particulars of the assault 1323 1209. Another form, containing particulars of the damages inflicted, with special damage 1324 1210. Another form, alleging an accompanying entry into plaintiff's dwelling 1324 1211 . Another form, with allegation of false imprisonment 1325 1212. By husband, for an assault on wife 1326 1213. For forcible defilement of plaintiff 1327 1214. Against common carrier, for ejection of passenger 1327 1215. Against common carrier, for forcible ejection of trespasser 2329 1216. Against common carrier, for unlawful treatment of one stealing a ride..... 1329 1217. Against the master and owners of a vessel for an assault by master upon a seaman 1331 1218. Willful injury to one trespassing or committing a misdemeanor . . . 1332 1207. General Form. That on or about the day of , 19 , at ,^ the defendant ^ mahciously ' assaulted, struck ' If the damages are enhanced by assault by the servant is discussed, the public character of the place, and If, however, the assault is alleged to the attendant humiliation, these par- have been committed by the defend- ticulars may properly be alleged. ant's servant, it is necessary to further See Cremore v. Huber, 18 App. Div. allege that it was committed in the 231, 45 N. Y. Supp. 947. course of the servant's employment, ^ Although the assault was com- or in pursuance of authority given by initted by defendant's servant, under defendant, or while the servant was familiar principles the complaint may acting in defendant's interest. Phil- charge that defendant committed it. lips v. Rosenthal-Rogmanali Co., 170 See, for example, the complaint in App. Div. 960. Schepps V. Jap. Fan Co., 145 App. ' An accompanying slander by Div. 418, 131 N. Y. Supp. 1015; also, defendant may be proved to sustain Levy V. Ely, 48 App. Div. 554, 62 the charge that the assault was mali- N. Y. Supp. 855, where the master's cious, thus justifying an award of liability for a willful and malicious punitive damages. Galvin v. Starin, 1322 Actions for Assault and Battery 1323 and beat [or, laid violent hands upon] the plaintiff,* to his damage dollars.'' Wherefore [etc., demand of judgment]. 1208. Another Form, Containing Allegations of the Par- ticulars of the Assault.'^ I. That on or about the day of , 19 , at , the defendant maliciously and violently as- saulted the plaintiff, and struck him in the face and breast several violent blows, and aimed at him a gun and threat- ened to shoot him, whereby he put the plaintiff in fear for his life; and maliciously, publicly and forcibly seized and searched plaintiff's person and clothing; and also tore the clothes from plaintiff's person [or otherwise describe the vio- lence used, and its consequences,'^ special damage, if any, being stated thus — and the plaintiff was thereby made ill and lame, and disabled from attending to his business for 132 App. Div. 577, 116 N. Y. Supp. 919. It results in an improper com- mingling of two causes of action, how- ever, to set forth the accompanying slander and claim damage therefor. Paul V. Ford, 117 App. Div. 151, 102 N. Y. Supp. 359. Nor may such ac- tions, separately stated, be joined under the provisions of the Code. Id. * Of course under this general alle- gation, general damage only could be established. No special damage, such as loss of wages, medical expense, etc., could be recovered. See, gener- ally, Forms 973-981, and notes, regarding alleging injury in Negli- gence. Recovery may be had for fright alone, unaccompanied by physical injury. The contrary rule announced Iq MitcheU v. Rochester Railway Co., 151 N. Y. 107, is applicable to actions based on negligence and not to cases of willful tort. See Williams v. Un- derbill, 63 App. Div. 223, 71 N. Y. Supp. 223; Preiser v. Wielandt, 48 App. Div. 569, 62 N. Y. Supp. 890. But plaintiff cannot recover for fright and illness of his wife, who witnessed the assault. Hutchinson v. Stern, 115 App. Div. 791, 101 N. Y. Supp. 145. The items of plaintiff's pecuniary loss and damage will not be required to be furnished when plaintiff alleges only general damage. Ronz v. Lugt, 147 App. Div. 638, 132 N. Y. Supp. 522. ^ See, also, form given in Hutchin- son V. Stern, 115 App. Div. 791, 101 N. Y. Supp. 145; Clayton v. Keeler, 18 Misc. 488, 42 N. Y. Supp. 1051. ' Where plaintiff charged defend- ant with having kicked him into a cellarway, negligently left open by defendant, it was held that the com- plaint was improperly framed for negligence. Miller v. Bahmuller, 124 App. Div. 558, 108 N. Y. Supp. 924. 1324 Abbott's Forms of Pleading thereafter, and was compelled to pay dollars for medical attendance, and has been ever since, and for a long time will be lame],' to his damage dollars. Wherefore [etc., demand of judgment]. 1209. Another Form, Containing Particulars of Damages Inflicted, with Special Damage. [As in Form 1207 to *, continuing: blackening plaintiff's eyes, breaking his nose, cutting his lips, and otherwise bruising and injuring the plaintiff in various parts of his face and body, and causing great pain and suffering to plaintiff, making him ill and lame thereafter, and disabling him from attending to his business for days there- after; and compelling him to pay dollars for medical attendance, [and damaging his clothes so as to render them valueless,] * and otherwise injuring plaintiff, all to his dam- age to the sum of dollars. 1210. Another Form, Alleging an Accompanying Entry into Plaintiff's Dwelling.' That on or about the day of , 19 , at , in the county of and State of , the defendant wrongfully and unlawfully entered upon the premises of the plaintiff, and into his dwelling house, and then and there maliciously [wrongfully and unlawfully] ^" did assault, strike, beat, wound and ill-treat this plaintiff, and [vindictively and without the slightest provocation or cause] "• did deliberately, in a brutal manner, strike this plaintiff upon his head and other parts of his person, and did seize and drag this plaintiff, and drag him out of his ' See last note to Form 1207. Wringer Co., 60 App. Div. 525, 69 'This bracketed allegation was N. Y. Supp. 952; Langdon u. Guy, 91 held merely descriptive of plaintiff's N. Y. 661, where the allegations rela- condition after the assault, and not to tive to the entry were held matters of unite an action for an injury to prop- description. , erty. Vock v. Auterbourn, 67 Misc. >» The words in brackets were in 168, 122 N. y. Supp. 233. the precedent, but are in no way es- ' From complaint in Doyle v. Am. sential to its suflSciency. Actions for Assault and Battery 1325 said dwelling house, and did tear and injure the clothes of this plaintiff, and did attempt to handcuff and imprison this plaintiff, and did to him other bodily injuries, whereby he sustaiaed damages to the amount of dollars." Wherefore [etc., demand of judgment], 1211. Another Form, with Allegation of False Imprison- ment. '- That on or about the day of , 19 , at , the defendant with force and arms assaulted the plaintiff, and with great force and violence pulled and dragged about the said plaintiff, and also then and there forced and compelled the said plaintiff to go from a certain place in said city into the public streets thereof, and then and there forced and compelled him to go in and along divers public streets in said city, and ^hen and there im- prisoned the said plaintiff, and put him in the custody of the sheriff of the county of New York, and detained him for the period of several days in said custody, and restrained and deprived the said plaintiff of his liberty without any reason- able or probable cause whatsoever. That all of 'the said malicious acts aforesaid were [con- trary to the laws and customs of this State, and in violation of the same, andj ^^ against the will of the said plaintiff, whereby the said plaintiff was not only greatly hurt, bruised and wounded, but was also thereby then and there greatly " If special damage has resulted it and redundant. They are certainly must be specially alleged. See last not necessary, being merely conclu- note to Form 1207. sions of law, and, being immaterial, " From Sheldon v. Lake, 9 Abb. Pr. are not admitted if not denied, nor is N. S. (N. Y.) 306, where the court an issue raised thereon if they are met denied a motion to strike out the al- by a denial. N. Y. Code Civ. Pro., legations showing an imprisonment, §§522, 964. But it is doubtful or to have them stated as a separate whether defendant ought to succeed cause of action, holding that but one on a motion to strike them out, since cause of action was alleged. their presence cannot injuriously " The wonls in brackets were in- affect him, so as to bring him within eluded in the precedent, and were the Code (§ 545), permitting a person stricken out by the court as irrelevant aggrieved thereby to make such motion. 1326 Abbott's Fokms of Pleading humiliated and injured in his credit and circumstances, and was then and there hindered and prevented from per- forming and transacting his affairs and business, by means whereby said plaintiff has sustained damages to the amount of dollars. Wherefore [etc., demand of judgment]. 1212. By Husband, for an Assault on Wife." I. That prior to and at the times hereinafter mentioned, one M. B. was, and still continues to be, plaintiff's wife, and as such wife then and ever since has lived and cohabited with plaintiff, her husband, at ; that plaintiff then was, and ever since has been, a householder in said , and was, and ever since has been, fully supporting and pro- viding for his said wife, and that prior to the times herein- after mentioned, she was in good health and fully capable of performing, and actually did perform, the duties of house- keeper for plaintiff in their dwelling [without requiring domestic or other servants or assistants to assist her in per- forming her housework, and in the care and management of plaintiff's children — or, otherwise according to the fact]. II. That on or about the day of ' , 19 ,' at , defendant assaulted and struck said M. B., and beat, bruised and wounded her; that thereby she be- came sick and unable to perform her duties, and for the space of months plaintiff was deprived of her society and of her services in his domestic affairs, and was compelled to, and did, expend the sum of dollars in nursing and medical attendance and assistance in the '" In this action damages are not. If the assault was committed by presumed; they are, therefore, of defendant's servant, plaintiff must the gist of the action and must be of course establish defendant's re- specially alleged in order that the sponsibility for the wrongful act of complaint shall show a cause of ac- the servant. Gehl v. Bachmann, tion. Uertz v. Singer Mfg. Co., 35 etc.. Brewing Co., 156 App. Div. 51, Hun (N. Y.), 116. See, also, Ful- 141 N. Y. Supp. 133. . ford V. Lynch, 168 App. Div. 70, 153 N. Y. Supp. 753. Actions for Assault and Battery 1327 performance of housekeeping duties, to plaintiff's damage dollars.^' Wherefore [etc., demand of judgment]. 1213. For Forcible Defilement of Plaintiff. '« I. That on or about the day of , 19 , at , the defendant, with force and violence, made an indecent assault upon plaintiff, and then and there forcibly debauched and ravished and carnally knew her [whereby she became pregnant and sick with child]." That plaintiff resisted such, defilement to the utmost of her ability, but was unable to prevent the same.^" II. That in consequence of said indecent assault made by the defendant on the plaintiff, she has suffered greatly in her mind and body, and has been otherwise greatly injured, to her damage dollars. Wherefore [etc., demand of judgment]. 1214. Against Common Carrier for Ejection of Passenger.^' I. [Allege corporate capacity and occupation of defendant as in Farm 775 or 808.] II. That on the day of , 19 , plaintiff was a passenger in one of the cars operated by defendants; that plaintiff had paid his fare, and conducted himself in a quiet and orderly manner. III. That while said car was on its way to its destination in " See Form' 983 for other allega- " Plaintiff must prove such re- tions of the nature of damage to sistance, although a separate allcga- plaintifT, and notes of cases thereon. tion is not essential to the suflBciency " Similar complaints were before of the complaint. Cases, supra. the courts in Boyles v. Blankenhorn, " From complaint in Stewart v. 168 App. Div. 388, 153 N. Y. Supp. Brooklyn, etc., R. Co., 90 N. Y. 588. 466, and Cholodnicka v. Gloniclzek, Such complaint plainly sounds in 150 App. Div. 206, 134 N. Y. Supp. tort. Lynch v. Syr. Rap. Tr. Co., 650. 66 Misc. 573, 124 N. Y. Supp. 169. . "That such damages may be re- The complaint may be framed, and covered in this actfon, see Bilkovic. the action may rest, upon breach V. Loeb, 156 App. Div. 719, 111 of contract. See Busch v. Int. Rap. N. Y. Supp. 279. Tr. Co., 187 N. Y. 388. 1328 Abbott's Forms of Pleading the direction of and while passing through avenue, the conductor in charge thereof, and who was then acting as defendant's agent in so doing, without any just cause or provocation whatsoever on plaintiff's part,^" and in the presence of many persons, [and with great and unneces- sary violence,] " expelled the plaintiff from said car, [and in doing so assaulted and with a dangerous weapon struck the head and body of the plaintiff, thereby wounding and bruis- ing him,] by reason of which he has sustained much suffering, distress and great mortification of his feeUngs, and was sub- jected to much expense, to his damage dollars. IV. That said assault was so committed by defendant's servant in the course and general scope of his employment, and in pursuance of the authority given him by defendant, and while said servant was acting or attempting to act in defendant's interest.'^ Wherefore [etc., demand of judgment]. '"> It was held in Bough v. Met. St. Ry. Co., 82 App. Div. 215, 81 N. Y. Supp. 771, that this allegation was material and that its denial raised an issue. It seems more in harmony with the principles of pleading and proof, however, that after plaintiff alleges and proves his acceptance as a passenger, defendant should allege and prove a justification ior the ejectment. Evidence of improper conduct could be given by the defendant in mitigation of damages Id. " Unless the plaintiff also charges the use of unnecessary violence he V. ill not be allowed to recover there- for. Huba V. Schenecta The pleader will notice that the passenger existed. See note 24 to pre- charge here is that "the defendant ceding form. company, by its servant" committed ^ The words in brackets were the assault. If the allegation is that not in the precedent, but are con- the defendant's servant did the act, sidered more appropriate to this it must be alleged, or shown from action. other facts alleged, that the servant Plaintiff's proof showed that he was acting for the defendant. See was kicked off from the car plat- Form 1214, and notes, form, from which the court held Actions for Assault and Battery 1331 sustained damages to a very great amount, to wit, in the sum of dollars. Wherefore [etc., demand of judgment]. 1217. Against the Master and Owners of a Vessel for Assault Committed by Master on a Seaman. ^^ I. That the defendants W. X. and Y. Z. were, during the period hereinafter mentioned, the owners of the vessel known as the " ." ' II. That during the period hereinafter mentioned the de- fendant S. T. was the master of the said vessel, and as such the agent or servant of the defendants first named above. III. That on or about the day of , 19 , the plaintiff was hired by the defendants W. X. and Y. Z. through the agency of the defendant S. T. to serve as a seaman on the said vessel upon a voyage to , and home again to the port of IV. That plaintiff served as such seaman from the day of , 19 - , or thereabouts, imtil the day of , 19 , or thereabouts, when the voyage above named was terminated by the arrival of the said vessel at the port of V. That on or about the day of , 19 , at or about o'clock in the noon, while the said vessel was upon the high seas, plaintiff was ordered by the defendant S. T. to go upon the deck, which order, for sundry reasons then and there stated, the plaintiff was unable to comply with; that thereupon the defendant S. T., without any just cause or provocation, violently struck the " From the complaint in Gabriel- have held the owners liable. Chi- son V. Waydell, 135 N. Y. 1, where cago, etc., R. Co. v. Ross, 112 U. S. it was held by the New York Court 377; Croucher v. Oakman, 3 Allen of Appeals, by a. divided court, that (Mass.), 185; Thompson v. Herman, the master and seamen of a vessel 47 Wise. 602. are fellow servants of different grades, See, also, for other discussions of and that an action would not lie the principles involved. Mulligan v. against the owners for the willful N. Y., etc., R. Co., 129 N, Y. 506; and malicious assault by the master Palmieri v. Manhattan Ry. Co., 133 upon a seaman. Other jurisdictions id. 261. 1332 Abbott's Forms of Pleading plaintiff and dragged him from the bunk where he was then lying, and otherwise threatened and abused and ill-treated the plaintiff, and kicked the plaintiff's leg with great force, causing a compound fracture and' breaking the bones of the plaintiff's leg, and causing other injmy to the plaintiff. VI. That the act and acts of the defendant S. T. in striking, threatening, kicking and ill-treating the plaintiff were done for the purpose of coercing the plaintiff to obey the orders of the defendants W. X. and Y. Z., or for the purpose of other- wise enforcing and maintaining the discipline of the vessel. VII. That nevertheless the act and acts of the defendant S. T. were unnecessary and of excessive violence and bru- tality, -and in nowise justified under the circumstances of the case. VIII. That by reason of his said injuries, plaintiff has suffered and still suffers severe pain; that his sufferings were and have been greatly increased by reason of 4ihe fact that for a great length of time, to wit, days, the plaintiff was not within reach of proper surgical treatment; that he has been obliged to remain in bed ever since the day of ) 19 , and, as he is informed and verily believes, he will not be able to walk for months, or more, nor to work for months, or more, and will continue to suffer pain for many months more; that he has been prevented from earning wages by following his trade or by following any trade, and, as he is informed and believes, will be so prevented for many months to come; all of which has caused him damages in the sum of dollars. Wherefore [etc., demand of judgment]. 1218. Willful Injury to one Trespassing, or Committing a Misdemeanor; Against Owner and Servant for Shoot- ing Plaintiff when Trespassing or Poaching.^^ I. That at and on or about the day of » '^ See Magar v. Hammond, 183 similar to the actions bj/ licensees. N. Y. 387. The principles upon See other forms under Negli- which the action rests are very qence. Actions for Assault and Battery 1333 ,19 , and while plaintiff was trespassing upon the lands of defendant, the defendant willfully, wantonly and ^recklessly assaulted and shot the plaintiff [in the leg] and otherwise injured and maltreated plaintiff. '^ II. [Allege resulting injury; see Forms 973-980.] Wherefore [etc., demand of judgment.] " It is optional with the pleader its use will narrow the issues, or pre- to show that plaintiff was trespass- vent a claim of surprise, the above ing; an allegation of the assault in form cannot be seen to possess any the general form would require de- advantage over the precedents in fendant to affirmatively plead the Forms 1207-8. justification of the trespass. Unless CHAPTER XLIII COMPLAINTS IN ACTIONS FOR FALSE IMPRISONMENT^ PAGE 1219. Against private individual; imprisonment on private premises. . . . 1334 1220. The same, imprisonment in defendant's store on charge of theft . . . 1335 1221. The same, summoning police, and causing arrest without warrant on similar charge 1336 1222. The same, imprisonment by an arrest without legal process 1337 1223. The same, under a void order of arrest in civil action, and showing special damages 1338 1224. The same, allegation showing defendant's responsibility for act of employee 1341 1225. Against police officer; arrest made under void process 1342 1226. The same, arresting wrong person under valid process 1343 1227. Against judicial officer acting without jurisdiction 1344 1219. Against Private Individual; Imprisonment on Private Premises.^ I. That on or about the day of , 19 , at the city of , State of , the defendant locked plaintiff in a room and imprisoned him therein for horn's wrongfully and unlawfully; that said act was done 'A count for false imprisonment establishes both causes of action, may be united with a count for ma- Tyson v. Bauland Co., supra. See f ur- licious prosecution. Tyson v. Bau- ther on this point, note 14 to Form land Co., 68 App. Div. 310, 74 N. Y. 1223, and also notes to Form 1233. Supp. 59. They are not necessarily ^ That this form is sufficient, under inconsistent if arising out of the the authorities, at least against a same transaction. Gearity v. Straus- demurrer or an objection at trial, bourger, 133 App. Div. 701, 118 see, Eddy v. Beach, 7 Abb. Pr. N. Y. Supp. 257. The commingUng (N. Y.) 17; Akin v. NeweU, 32 Ark. of the two actions into one count is 605; Gallimore v. Ammerman, 39 waived unless the objection is taken Ind. 323; Colter v. Lower, 35 Ind. before trial, by motion. Id. But 285; Spice v. Steinwick, 14 Ohio St. when the two causes of action are 213; Carey v. Sheets, 60 Ind. 17; commingled in a single count, and Lange v. Benedict, 73 N. Y. 12; the trial court has refused to compel Nixon v. Reeves (Minn.), 67 N. W. an election, a verdict for plaintiff can- Rep. 989; Hildebrund v. McCrum, not be sustained unless the proof 101 Ind. 61. 1334 Actions foe False Imprisonment 1335 willfully and maliciously, ^ with the intent to humiUate and disgrace the plaintiff in [the presence of his comrades, and in] the opinion of his associates/ II. That the plaintiff was greatly humiliated, and suffered mental and bodily distress by reason thereof, and was greatly injured in his character and reputation, and suffered damages by reason of the premises in the sum of dollars.'^ Wherefore [etc., demand of judgment]. 1220. The Same, In Defendant's Store, on a Charge of Theft.« I. That at the times hereinafter mentioned, defendant ' It is Dot necessary to allege that defendant used force or threats, or that the act of imprisonment was malicious; but this is matter in ag- gravation. Ackroyd v. Ackroyd, 3 Daly (N. Y.), 38; Brushaber ;;. Stegemenn, 22 Mich. 266. An ac- companying slander may be pleaded to show the pretense of the arrest and the defendant's malice, if the gravamen of the action is the false imprisonment. See Kipp v. Siegel- Cooper Co., 136 App. Div. 918, 120 N. Y. Supp. 988. It is said that matter in aggravation, as distin- guished from special damages, may be proven though not pleaded. Abb. Trial Evid. 657. It.may be desirable, however, to set forth the circum- stances of publicity, humiliation, etc. See next form. If the arrest was made by an em- ployee, the employer cannot be held for punitive damages unless the employee acted through malice and the employer shared in it. See Magagnos v. Brooklyn Heights R. R. Co., 128 App. Div. 182, 112 N. Y. Supp. 637; Lake Shore, etc., R. Co. V. Prentice, 147 U. S. lOl; Craven v. Bloomingdale, 171 N. Y. 439; see allegation in Form 1224. By afterwards joining in the un- lawful imprisonment those not pre- sent at the beginning become liable for the whole trespass, ab initio, and may be sued together. Egleston V. Scheibel, 113 App. Div. 798, 99 N. Y. Supp. 969. The action is in trespass, not case, and the gist of the action is the wrongful direct force. Ackroyd v. Ackroyd, supra; Johnson v. Van Kettler, 84 111. 315. * Want of probable cause is not an element of this action. See note 9 to Form 1222 on this point. * Allege special damage, if any. Evidence of injury to business is incompetent unless pleaded. Evins V. Met. St. Ry. Co., 47 App. Div. 511, 62 N. Y. Supp. 495. It is said that all damages awarded in this action partake to some extent of "smart money,'' which may be awarded upon proof of an illegal and unjustifiable restraint. Talcott v. Nat. Exhib. Co., 144 App. Div. 337, 128 N. Y. Supp. 1059. See for other authorities on special damages, last note to Form 1223. ' Adapted from Stevens v. O'Neill, 169 N. Y. 375, aff'g 51 App. Div. 364, 64 N. Y. Supp. 663, on opinion 1336 Abbott's Forms of Pleading was the proprietor of [a department store] in the city of II. That on or about the day of , 19 , plaintiff was lawfully in defendant's said store. for the pur- pose of making purchases, that while so engaged, and for such purpose examining certain articles, viz., [watches], plaintiff was by force and arms violently seized by the super- intendent and by a private detective of the defendant, both of whom were servants and agents of defendant and em- ployed as such by him, and acting under such employment and within the scope of their authority, and who at the same time and place and in the presence of many people falsely and maliciously accused plaintiff of being a thief, and of having stolen [state what]. III. That plaintiff did not steal said , or any other article or thing whatsoever, and then and there so stated to defendant's said servants; but that said superintendent and detective, so continuing to act for the benefit of defend- ant in the performance of their employment and within the scope and purpose of their employment, and within the au- thority given them by defendant, refused to release plaintiff, and arrested him, and maliciously detained and imprisoned him and compelled him to submit to an examination of his clothing and person at the hands of said private detective. IV. [Allege damage, as in Form 1219.] Wherefore [etc., demand of judgment]. 1221. The Same, Summoning Police, and Causing Arrest Without Warrant on Charge of Theft.^ I. That prior to the day of , 19 , plain- below, and where a recovery for ' Adapted from complaint in pfaintiff was affirmed. The court Thompson v. Fisk, 50 App. Div. 71, held that the facts of the occurrence 05 N. Y. Supp. 352, where no ques- permitted a presumption of legal tion of pleading was directly in- malice, and where the acts were volved. The court held that inas- done pursuant to a system in de- much as it appeared that a felony fendant's store punitive damages had been committed, the legality might be awarded without showing of the arrest by the p^uee officei- express malice. depetided upon whether or not he Actions foe False Imprisonment 1337 tiff was in the employ of the defendant at his residence in the city of , as a domestic servant [or otherwise according tofact\. II. That on said day defendant wrongfully and falsely accused plaintiff of having stolen [a watch] belonging to defendant, and thereupon defendant procured a police officer from headquarters and brought him to defendant's said residence, and thereupon defendant caused plaintiff to be locked in her room by said officer and kept there confined and imprisoned for hours, and compelled plaintiff to submit to a search of her personal effects and of her clothing and of her person, and thereafter compelled plaintiff to go with said officer to police headquarters and to be there further detained and imprisoned for hours. III. That said imprisonment was caused by defendant without any warrant or other legal process, and without authority of law, and without making any proper complaint to the police authorities, and without any reasonable cause for belief that plaintiff was in fact guilty of such theft. IV. That plaintiff was wholly innocent of the said charge of theft, and was forced by defendant to submit to the aforesaid imprisonment and the indignities and humilation associated therewith entirely against her will. V. [Allege damages, as in Form 1219.] Wherefore [etc., demand of judgment]. 12^. The Same, Imprisonment by an Arrest Without Legal Process.^ I. That on or about the day of , 19 , at the city of ' , the defendant, without any warrant had reasonable cause to believe the N. Y. Supp. 1055, where no question plaintiff guilty, and that such ques- of pleading was directly involved, tion should have been left to the If the defendant is, in fact, a peace jury. officer, no allusion thereto need b(! ' From Parke v. Fellman, 145 App. made in the complaint, leaving the Div. 836, 130 N. Y. Supp. 361; defendant to allege the fact in his Grinnell v. Weston, 95 App. Div. answer as a part of his justifica- 454, 88 N. Y. Supp. 781; Savage v. tion of the arrest. See form under McMillan, 37 App. Div. 103, 55 Answers. 1338 Abbott's Forms of Pleading or other legal process, maliciously ' caused the arrest of the plaintiff and obliged him to go to the PoUce Court in that city, a distance of miles; that the defendant there caused a false charge to be made against the plaintiff, viz., that he was guilty ,of [state character of charge] 1^° that the plaintiff was held under arrest and imprisonment hours, during which time he was confined in a room with common criminals and vile and disorderly persons, and amid filthy and loathsome surroundings; that plaintiff was compelled to procure bail, and expend dollars therefor and for counsel; that plaintiff was held [and con- tinuously imprisoned] until the day of , 19 , when the defendant again falsely charged the plaintiff with the same offense before the Court, but that after a trial [or, hearing] the charge was dismissed and the plaintiff was discharged from custody." II. That by reason of the premises plaintiff has been damaged dollars. ^^ 1223. The Same, Under a Void Order of Arrest in Civil Action, and Showing Special Damages." I. That on or about the day of , 19 , " It is not necessary for plaintiff N. Y. Supp. 1085, aff'd 210 N. Y. to allege or establish want of probable 529; Gold v. Armer, 140 App. Div. cause in this action. Parke v. Fell- 73, 124 N. Y. Supp. 1069; Gearity v. man, 145 App. Div. 836, 130 N. Y. Strasbourger, 133 App. Div. 701„ 118 Supp. 361; Gold v. Armer, 140 App. N. Y. Supp. 257. Div. 73, 124 N. Y. Supp. 1069. " In an action for false imprison- So the allegation that the arrest ment, as distinguished from malicious was made maliciously is not essential prosecution, liability for damages (Id.), but may be included as the ceases when» plaintiff has been held basis of proof of actual malice. by a judicial officer acting within his "> If the charge is only a misde- jurisdiction. Gearity v. Strasbourger, meanor, neither a private person sapra. nor a peace officer may arrest with- '^ p^^^ note on special damages out a warrant, for an offense not which are required to be pleaded in committed in his presence, and if order to be recovered, see last note an arrest is so made or caused, the to Form 1223. only question left for the jury is one " Adapted from complaint in of damages. See MacDonnell v. Rothchild v. Whitman, 132 N. Y. McConville, 148 App. Div. 49, 132 472. Actions for False Imprisonment 1339 plaintiff was engaged in business in the city of [as manager of the dry goods business of N., and was, on or about said date, conducting the said business as such man- ager]. II. That on or about said date, defendants [not having any just or probable cause of action against the plaintiff] ^^ then and there wrongfully and maliciously began an action against plaintiff, and caused to be issued out of the Court of the State of , in and for the county of , a certain alleged order of arrest in an action in An arrest made under regular pro- cess does not support an action for false imprisonment, although subse- quently the warrant is vacated or the complaint dismissed. Marks v. Townshend, 97 N. Y. 596; Murphy V. Martin, 58 Wise. 276; Cousins v. Swords, 14 App. Div. 338, 43 N. Y. Supp. 907. This is so even though the warrant was erroneous, if facts were stated sufficient to confer jurisdiction. Cole- man V. Brown, 126 App. Div. 44, 110 N. Y. Supp. 701. In Allen v. Fromme, 195 N. Y. 403, an action against an attorney, for issuing a body execution upon a judgment which did not authorize its issuance, was sustained. Where the allegations of the com- plaint merely r.tlack the defendant's motives in causing the arrest, and not the act of the judge in issuing the warrant, or the manner of the arrest under it, no cause of action for false imprisoament is shown. Clark V. Palmer, 116 App. Div. 117, 101 N. Y. Supp. 759, aff'd 191 N. Y. 540. That a judicial officer is protected from such an action, although he act in excess of his jurisdiction upon a matter which is properly before hira and his act is void, see notes to Form 1227; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80. '^ The charges of malice and want of probable cause will not be stricken out on motion as irrelevant or im- proper. Exner v. Exner, 2 Abb. N. C. (N. Y.) 108; Ackroyd v. Ackroyd, 3 Daly (N. Y.), 38. A count for malicious prosecution may properly be joined with a count for false im- prisonment. (See note at beginning of this chapter.) This meets either ruling upon the trial as to the validity of the order of arrest. If the arrest be legal, the cause of action for malicious prosecution must strictly be made out; if the arrest be illegal, proof of the false imprisonment will suffice, whereas if the pleader had only counted on malicious prosecu- tion a recovery could only be had upon additional proof of malice and want of probable cause. Barr o. Shaw, 10 Hun (N. Y.); 580; Marks v. Townshend, 97 N. Y. 590. But where the complaint, in a single count, contains all the alle- gations necessary to sustain an action for malicious prosecution, and for false imprisonment, defendant may compel by motion an election or a separate statement. Stokes v. Beh- renes, 23 Misc. 442, 52 N. Y. Supp. 251.. 1340 Abbott's Forms of Pleading which defendants were plaintiffs, and placed the same in the hands of the sheriff of the county of for service, and thereupon caused the plaintiff to be taken into custody by the said sheriff thereunder, and held to bail in the sum of dollars, and that plaintiff was kept in custody under said pretended order of arrest by the said sheriff for about a week, and was compelled to, and did, disburse large sums of money, aggregating dollars, in and about said arrest, and to counsel; and that plaintiff, by reason of said arrest, was compelled to give up said business, and was greatly injured in his reputation, good name and credit among merchants in the city of , and elsewhere, and among his friends and acquaintances, and suffered greatly in body and mind by reason of the disgrace attend- ant thereon. III. That the said order of arrest was null and void in that the said court had no jurisdiction to grant the same upon the evidence then submitted to it [or otherwise set forth facts showing the invalidity of the order] ; ^^ that thereafter, and upon the motion of plaintiff, the said alleged order of arrest was duly vacated by said Co\u"t, upon the ground that the same was void and unauthorized, and that the court had not jurisdiction to grant the same,^* and an order " If the complaint show that de- Rauchfuso, 93 Misc. 332, 157 N. Y. fendant caused the plaintiff's arrest Supp. 103. under legal process, it is insufficient An allegation that a warrant was unless it also present facts from which void because the evidence upon which it appears that the process was not it was issued was insufficient in law regular, and that, therefore, the to sustain the charge upon which it arrest was not lawful. Cunning- was founded, is an allegation of ham V. East River, etc., Co., 42 fact. Steele v. Rauchfuso, supra. N. Y. State Rep. 212, 17 N. Y. Supp. An allegation that a warrant issued 372; Cousins v. Swords, 14 App. by a judge, who was the defendant, Div. 338, 43 N. Y. Supp. 907. To was void, and appeared void on its allege that the process was "wrong- face, and that defendant knew when fully and unlawfully" issued, and he signed it that it was void, suf- that the arrest under it was "unlaw- ficiently shows against a demurrer fid," or "illegal "is wholly insufficient the invaUdity of the warrant, as presenting merely conclusions of Sweeney v. 0'Dwy«r, 197 N. Y. 500. law. Going v. Dinwiddie, 86 Cal. '«The fact that the Appellate 633, 25 Pac. Rep. 129; Steely v. Division vacated the order of arrest Actions for False Imprisonment 1341 was duly entered thereon on or about the day of , 19 , and defendant discharged thereunder. IV. That by reason of the premises plaintiff suffered damages as aforesaid in the sum of dollars." Wherefore [etc., demand of judgment]. 1224. The Same, Allegation Showing Defendant's Re- sponsibility for Act of Employee. [After showing that arrest was made without warrant, and on a charge within the scope of the employee's authority as there- after stated, continue:] That said [employee] was at said time [state character of employment, as] employed by the defendant as a special officer to preserve order at defendant's station and upon its cars,' -and in imprisoning plaintiff as aforesaid was acting within the scope of his employment and within the regular coiu-se of his duty and in the interest of the defendant. ^^ on the original papers does not establish necessarily that the order was void or irregular. Coleman v. Brown, 126 App. Div. 44, 110 N. Y. Supp. 701. " Under a general allegation of bodily and mental injury, plaintiff may- show privation and suffering during imprisonment, from bad con- dition of jail. Abrahams v. Cooper, 81 Pa. St. 232; contra, Johnson v. Van Kettler, 84 III. 315. Without allegation or proof of special damages, recovery is not nec- essarily limited to nominal damages. Josselyn v. McAllister, 22 Mich. 300. The following constitute special damages, and can be recovered only if specially averred: to plaintiff's business, Evins v. Met. St. Ry. Co., 47 App. Div. 511, 62 N. Y. Supp. 495; to character and reputation. Comer v. Knowles, 17 Kan. 436; attorney's fees and other expenses incurred, Worden v. Davis, 197 N. Y. 391; Krug v. Ward, 72 111. 603; Blythe V. Tompkins, 2 Abb. Pr. (N. Y.) 468. Even though the plaintiff was not actually imprisoned, his legal expenses and disbursements in the proceeding under the void warrant, are recoverable. Worden v. Davis,. 195 N. Y. 391. Illness of wife, causing loss of service, and claimed to have been caused by arrest, held, too remote. EUis V. Cleveland, 55 Vt. 358. 1' Adapted from Parke v. FeUman, 145 App. Div. 836, 130 N. Y. Supp. 361; Craven v. Bloomingdale, 171 N. Y. 439. The employer cannot ordinarily be held for punitive dam- ages for the employee's act. See note 3 to Form 1219. Where the complaint showed that plaintiff had made a purchase in defendant's store, and had been charged by a clerk with stealing the article purchased, and had been taken before the superintendent 1342 Abbott's Forms of Pleading [Or, where the arrest was by a clerk, or manager, see Form 1220.] [Or, where special authority or ratification are claimed, may show as follows;] That after said salesman had caused plaintiff's arrest far such alleged petit larceny not committed in his presence, the defendants [members of the firm] approved his act in causing plaintiff's arrest as aforesaid, and were present when he made the charge and delivered the plaintiff to said police officer." 1225. Against Police Officer; Arrest Made Under Void Process.^" I. That heretofore and on the day of , 19 , [in the nighttime] -' defendant unlawfully arrested plaintiff, and took him before Hon. J. K., a magistrate of who further detained her, it was held to sufficiently lay the founda- tion for proof that the servants were acting within the scope of their employment. Fogarty v. Wana- maker, 60 App. Div. 433, 69 N. Y. Supp. 883. " From Gearity v. Strasbourger, 133 App. Div. 701, 118 N. Y. Supp. 257. ™ This is, in substance, the com- plaint in MacDonnell c. McConnell, 210 N. Y. 529, aff'g 148 App. Div. 49, 132 N. Y. 1085, and upholding a recovery for plaintiff. There is no doubt that the pleader, if he so desires, may entirely ignore the fact that the defendant who made the arrest was a peace officer, or acting under assumed authority which was void; the simple form (Form 1222) as against a private individual suffices as against an officer, for the presumption is that any deprivation of one's liberty is illegal, and thus the burden of a justification may always be placed upon defendant. However, it may serve to narrow the issues to plead the real facts, although if plaintiff alleges that defendant acted under a warrant he must then be careful to plead the facts showing its void character, and not merely character- ize it as void which is ineffective. See note 15 to Form 1223. Under the above complaint, it was shown that the defendant had attempted to act under the authority of a foreign warrant of arrest; this warrant charged a specific crime of the grade of a misdemeanor, and it was held, that the defendant could not show that a felony had in fact been committed and that there was reasonable cause to believe plaintiff guilty of it, where the officer himself knew nothing of it at the time of the arrest, and such facts had not been pleaded in justification. 21 No valid arrest for a misde- meanor may be made at night with- out a direction of a magistrate indorsed upon the warrant. Code Crim. Proc, § 170. Actions for False Imprisonment 1343 the Court of the city of , and then and there charged plaintiff with having committed the crime of [state]. II. That thereafter upon the procurement of defendant plaintiff was held to bail, after having been kept in imprison- ment under said charge for a period of [state]. III. That thereafter plaintiff was duly acquitted of said charge, and the same was dismissed. IV. That plaintiff was obliged to and did expend large sums, to wit, dollars in procuring bail and for counsel, and has been injxu^d in his reputation and has suffered great mental distress by reason of said wrongful arrest, to his damage dollars. Wherefore [etc., demand of judgment]. 1226. The Same, Arresting Wrong Person Under Valid Process. ^^ I. That on the day of , 19 , the de- fendant, without any warrant or authority of law, wrong- fully and unlawfully arrested plaintiff, and compelled him to be transported to police headquarters, and thereafter to the magistrate's court of the city of , where he was detained against his will, and thrust into a room with criminals and disorderly and vile persons, and detained there overnight, when he was arraigned before the magis- trate in said court and without any charge being brought' against him was discharged. II. That said arrest was caused by defendant without justification or excuse therefor, and without any warrant ^' This is ia substance the com- fendants justified under an extra- plaint in Davern v. Drew, 214 N. Y. dition warrant, and their belief that 681, aff'g 153 App. Div. 844, 138 the plaintiff was the person wanted. N. Y. Supp. 1017. The action was The jury exonerated the police brought against the city magistrate, officers, but gave a verdict against the police oflBcers who made the the one who instigated plaintiff's arrest, and the private individual arrest, and such verdict was affirmed who procured the arrest. The de- on appeal. 1344 Abbott's E'orms of Pleading or other legal process directing or authorizing the arrest or subsequent detention of plaintiff. III. [Allege damage, as in Form 1219.] Wherefore [etc., demand of judgment]. 1227. Against Magistrate Acting Without Jurisdiction.^^ I. That at the times hereinafter mentioned defendant was [a justice of the peace in and for the city of and residing and having his office therein]. II. That on or about ^the day of , 19 , an information was filed with the defendant charging plain- tiff with the crime of [cruelty to animals, in violation of § 635 of the Penal Law and alleging that said crime was committed in the town of in said county]. III. That defendant under the authority of his said oflSce, on said day and upon the filing of said information issued a warrant under his hand directed to any peace officer of said county commanding him to forthwith arrest plaintiff; that said warrant was void [state reason, as] in that it required plaintiff to be brought before defendant, and did not re- quire plaintiff to be brought before a justice of the peace of said town of , wherein the alleged offense was stated in said information to have been committed. IV. That said warrant was by reason of said improper and wrongful direction wholly void, and thereby no jurisdiction was conferred upon the defendant to subsequently cause the imprisonment of plaintiff as hereinafter alleged. V. That plaintiff was on the day of , 19 , arrested under said warrant and brought before de- ^' From complaint in McCarg v. matter, he is not liable for false im- Burr, 186 N. Y. 467, where a judg- prisonment for proceeding beyond ment for plaintiff was affirmed, the his jurisdiction in trying the charge court holding that the magistrate and ordering defendant's imprison- had acted without jurisdiction and ment, in the absence of actual malice, therefore was liable for false imprison- Starrett v. Connolly, 150 App. Div. ment. 859, 135 N. Y. Supp. 325; Bowman But where a judicial officer has v. Seaman 152 App. Div. 690, 137 acquired jurisdiction of the person N. Y. Supp. 568. of the prisoner and of the subject- Actions for False Imprisonment 1345 fendant at his office in said city of ; that thereupon plaintiff moved for his discharge and release from custody on the ground among others that said warrant was illegal and void for the reasons hereinbefore alleged, and that de- fendant had no jurisdiction to try plaintiff upon said charge; that defendant refused to discharge plaintiff, and proceeded to try him upon said charge, and to find him guilty thereof, and to impose a fine of dollars Avith a direction that upon non-payment plaintiff should be confined in the county jail. VI. That plaintiff was thereafter confined in said jail for a period of days under said judgment of said defend- ant, so as aforesaid rendered by him -without jurisdiction so to do. VII. That the aforesaid acts of said defendant were done maliciously and wrongfully and with intent to injure plain- tiff. VIII. [Allege damage, as in Form. 1219.] Wherefore [etc., demand of judgment]. CHAPTER XLIV COMPLAINTS IN ACTIONS FOR MALICIOUS PROSECUTION ' The essential elements of this ac- tion are, that defendant maliciously, and without probable cause to believe he could succeed, instigated or in- stituted a prosecution against the plaintiff, which has terminated in plaintiff's favor, and by reason of which he has suffered damage. Burt V. Smith, 181 N. Y. 1; Barry v. Third Ave. R. R. Co., 51 App. Div. 385, 64 N. Y. Supp. 615; Schmidt v. Med. Soc, 142 App. Div. 635, 127 N. Y. Supp. 365; Wheeler v. Nesbit, 24 How. (U. S.) 544. That the prosecution may either be by criminal proceeding, or by an arrest secured in a civil action, is universally held. It is also quite uniformly held that a seizure of property in the course of a civil ac- tion will support the action. Paul v. Fargo, post. But decisions, pro and con, have been reached throughout the country upon the question whether the action may be founded upon a civil action, instituted and prosecuted maliciously and without probable cause, but wherein neither the plaintiii's person nor property has been seized. See 19 Am. & Eng. Encycl. of Law (2d ed.), 652, and cas. cit.; in New York it is held that the action will not lie. Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369. If the imprisonment of which plaintiff complains was shown by the complaint to have been under final judgment of a court of superior juris- diction, a complaint so showing will 1346 be demurrable in some jurisdictions, notwithstanding the complaint also alleges that the judgment has been reversed on appeal; such original judgment is held conclusive evidence that there was probable cause. See Francisco v. Schmeelk, 156 App. Div. 335, 141 N. Y. Supp. 402; Crescent City Live Stock Co. v. Butchers' Union, 120 U. S. 141; Spring w. Be- sore, 12 B. Mon. (Ky.) 551; Griffin v. Sellers, 4 Dev. & Bat. 176; Morrow v. W. & W. Co., 163 Mass. 349; Herman V. Brookerhoff, 8 Watts, 240. But the question has not yet been finally determined in New York. Burt v. Smith, 181 N. Y. 1. The judgment of a justice of the peace is prima facie evidence of probable cause, though reversed on appeal. Burt v. Place, 4 Wend. (N. Y.) 591; Nicholson v. Sternberg, 61 App. Div. 51, 78 N. Y. Supp. 212. An order, pendente lite, such as a provisional remedy of in- junction, issued out of a court of su- perior jurisdiction, is only prima fade evidence of probable cause when subsequently reversed or vacated. Burt V. Smith, 181 N. Y. 1 . So far as pleading is concerned, plaintiff over- comes a prima facie presumption by means of his direct allegation of want of probable cause. See note at beginning of Chapter XLIII and notes to Forms 1223 and 1233, as to joining a count on mali- cious prosecution with one for false imprisonment, covering the same transaction. Actions for Malicious Prosecution 1347 PAGE 1228. On a criminal charge; where plaintiff was tried and acquitted 1347 1229. The same, where plaintiff was discharged by magfetrate on prelimi- nary hearing I349 1230. The same, where plaintiff was held to bail, but the graild jury failed to indict 1350 1231. The same, where indictment was found, but afterwards dismissed or quashed IS^O 1232. The same, where plaintiff was charged with a misdemeanor, and acquitted by magistrate 1352 1233. On an arrest in a civil action 1353 1234. On a seizure of plaintiff's property in a civil action 1355 1235. For mahciously filing lis pendens to prevent sale of plaintiff's property 1357 1236. For bringing a civil action 1358 1228. On a Criminal Charge, where Plaintiff was Tried and Acquitted. I. That heretofore, and on or about the day of , 19 , at , the defendant mahciously,^ and without reasonable or probable cause ^ therefor, charged plaintiff before Hon. J. K., a justice of the peace in and for the town of , [or, one of the city magistrates of the city of , or otherwise identify the officer, or the tribunal]^ 2 The complaint must contain an -Div. 133, 152 N. Y. Supp. 930; allegation that the prosecution was Cousins v. Swords, 14 App. Div. maliciously instituted. Thaule v. 338, 43 N. Y. Supp. 907. It is a Krekeler, 81 N. Y. 428; Cousins v. pleadable fact. Van de Wilele v. Swords, 14 App. Div. 338, 43 N. Y. CaUaman, 7 Daly (N. Y.), 386; O'Neil Supp. 907; Thomas v. Lumley, 1 v. Johnson, 53 Minn. 439, 55 N. W. Abb. N. C. (N. Y.) 254, aff'd, 64 Eep. 601; Sturby-Estabrook, etc., N. Y. 631. Co. V. Kyes (Colo., 1897), 48 Pac. Malice is a pleadable fact; evidence Rep. '663; Louisville, etc., R. R. Co. from which malice may be presumed v. Hendricks (Ind., 1895), 40 N. E. (as distinguished from facts which Rep. 82. "Just cause" is sufficiently constitute malice in law) is not to be synonymous. Bregman v. Kress, 83 pleaded, and will be struck out on App. Div. 1, 81 N. Y. Supp. 1072. motion. Solis v. Manning, 37 How. That the charge was "wrongfully Pr. (N. Y.) 13. See, also. Abb. Brief and maliciously made," is insufficient, on Pleading 2d ed., p. 692. . Palmer v. Palmer, 8 App. Div. 331, ' A complaint is insufficient which 40 N. Y. Sup^p. 829. "Without fails to aver or to show that defend- cause" is wholly insuflBcient. Cohen ant acted without probable cause. v. Fisher & Co., 135 App. Div. 238, Thaule v. Krekeler, 81 N. Y. 428; 120 N. Y. Supp. 546. Assets Coll. Co. v. Myers, 167 App. ■■ For a precedent where the charge 1348 Abbott's Forms of Pleading with the crime [or, misdemeanor] of [grand larceny in having stolen a gold watch]/ and thereupon procured a warrant to be issued by said [justice] for the arrest of said plaintiff. II. That thereafter, and on or about the day of , 19 , plaintiff was arrested upon said warrant and imprisoned for the period of days,* and held -to bail in the sum of dollars.^ [// an indictment is found by the grand jury, allege it substantially as in Form 1231, post.] III. That thereafter, and on the day of , 19 , plaintiff was tried upon said charge by the Court, and was then and there duly acquitted thereof and discharged; that said prosecution was thereby wholly term- inated.* IV. That plaintiff has been injured in his reputation and has suffered great mental and bodily distress during his said tional burden upon plaintiff by way oF allegation; but it establishes prima facie evidence of probable cause. Neuowitch v. Cohn, 172 App. Div. 411, 158 N. Y. Supp. 344; Louis- ville, etc., R. R. Co. V. Hendricks (Ind.), 40 N. E. Rep. 82. See Miller V. Deere, 2 Abb. Pr. (N. Y.) 1. ' The prosecution must be shown to have fully terminated and of course in plaintiff's favor. King v. Johnson, 81 Wis. 578, 61 N. W. Rep. 1011. A bare allegation that it has terminated is insufficient. Tisdale v. Kingman, 34 So. Car. 32C, 13 S. E. Rep. 547; Cole v. Hanks, 3 B. Monroe (Ky.), 208. If the facts set forth do not show that there has been a termination of the proceeding, an allegation that such proceeding has terminated is ineffectual, and cannot extend the facta on which it is based. Thomason v. De Mott, 18 How. Pr. (N. Y.) 529. While a dismissal of the prosecu- tion obtained by consent, or. as the result of some act or trick of the ac- was made before the graiul jury and an indictment procured, see post, Form 1231. ' If deemed desirable the words of the charge itself may be quoted in the complaint. See Form 1232. ' Application for and issuance to ar proper officer for execution of a, warrant on a criminal charge con- stitutes a prosecution upon which this action will lie, without showing the execution of the warrant; this paragraph therefore is not essential, but very relevant on question of amount of damages. See Halber- stadt V. N. Y. Life Ins. Co., 194 N. Y. 1. Securing a summons on a criminal charge to be issued and served will support the action, although on its return the charge is dismissed. Schneider v. Schlang, 159 App. Div. 385, 144 N. Y. Supp. 543. ' A ruling by a magistrate charged with the duty of making a preliminary examination, that the accused be held for trial, does not put any addi- Actions for Malicious Prosecution 1349 imprisonment and afterwards;' [allege also any matters by way of special damage, ^° as:] that at the time of the making of said charge by defendant, plaintiff was regularly employed as [bookkeeper] by one M. N. at a salary of dollars per Week; that by reason of the premises plaintiff has lost such employment and has been unable to secure another, and has expended dollars in costs and coimsel fees " in defending himself upon said charge and in pro- curing bail; all to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1229. The Same, where Plaintiff was Discharged by Mag- istrate on-Preliminary Hearing. '- I: [As in preceding form.] II. That thereafter, and on or about the day of , 19 , plaintiff was arrested upon said warrant," cused which prevents action by the court, will not support the action (Halberstadt v. N. Y. Life liis. Co., 194 N. Y. 1), it should be sufficient for plaintiff to merely allege the dis- missal or other termination of the proceedings, leaving to defendant the necessity of alleging the method of procuring the termination which rendered it ineffective to support the action. 'Miles V. Weston, 60 111. 361. lUness of wife, caused by the charge, held too remote. Hampton v. Jones, 58 Iowa, 317. If plaintiff allege in- jury to his credit and business, and that many persons have refused to do business *it.h him, plaintiff may be required to furnish a bill of particulars containing the names of the persons so refusing. Dietz v. Lieber, 33 App. Div. 563, 53 N. Y. Supp. 977. Not so, however, if he does not specifi- cally change "loss of customers-" in addition to "injury to his credit." The latter is only an allegation of general damage. Cohen v. Eagle Pencil Co., 168 App. Div. 952, 153 N. Y. Supp. 170. ^'' Under familiar rules special dam- ages cannot be recovered unless spe- cially alleged; damages naturally resulting may be recovered under a general averment, uf)on proof of their extent. Evins v. Met. St. Ry. Co., 47 App. Div. 511, 02 N. Y. Supp. 495; Moehring v. Hall, 66 Tex. 240; Homew. Sullivan, 83 III. 30; Hamilton V. Smith, 39 Mich. 222; Sheldon u. Carpenter, 4 N. Y. 578; Smith v. Smith, 20 Hun (N. Y.), 559. See, also, 14 Am. & Eng. Encycl. of Law, p. 71. '' Recovery of such expenses al- lowed only when specially alleged. Thompson w. Lumley, 7 Daly (N. Y.), 74; Strang v. Whitehead, 12 Wend. (N. Y.) 64. ■•'Murphy v. Eidhtz, 113 App. Div. 659, 99 N. Y. Supp. 950; Sch- neider V. Schlang, 159 App. Div. 385, 144 N. Y. Supp. 543. '^ The issuance and service of a summons based upon a criminal 1350 Abbott's Forms of Pleading and brought before said J. K. [and required to give bail- or, and confined in jail a period of days — or other- wise]; that said justice thereafter heard the evidence upon said charge, and then and there dismissed the same and re- fused to hold plaintiff for trial, and discharged the plaintiff from custody, and wholly ended and terminated said pro- ceeding in favor of plaintiff," and said complaint and charge have not been further prosecuted. ^^ III. [As in paragraph IV of Form 1228, according to fact] Wherefore [etc., demand of judgment]. 1230. The Same, where Plaintiff was held to Bail, but the Grand Jury Failed to Indict." I and 11. [As in Form 1 228 .] III. That thereafter, and on or about the day of , 19 , the defendant mahciously, and without any probable cause, charged plaintiff before the grand jury of the county of with said [o'^ens^ ; that thereupon the said grand jury declined and refused to find or present an indictment against plaintiff, and duly dismissed said charge, and said prosecution was thereby terminated. IV. [As in Form 1228, according to fact] Wherefore [etc., demand of judgment]. 1231. The Same, where Indictment was Found but After- wards Dismissed or Quashed. [Sustained in Reit v. Meyer, 160 App. Div. 752, 146 N. Y. charge is enough, although plaintiff plaintiff's indictment, the proceed- is discharged upoii the hearing. See ings have not been terminated by Schneider v. Schlang, supra. the magistrate's dismissal. Weglein '^ An allegation that the magis- v. Trow Directory, etc., Co., 152 App. trate, after hearing, aimounced that Div. 705, 137 N. Y. Supp. S56. the charge was not sustained, and '' See, as to such a disposition of that plaintiff was publicly discharged the prosecution being sufficient to from arrest, sufficiently shows as support the action. Graves v. Dawson, against a demurrer the termination 130 Mass. 78, 39 Am. Rep. 429; of the proceeding. Mental v. Hip- Byne v. Moore, 5 Taunt. 187; Hower pley, 165 Pa. St. 558, 30 Atl. Rep. v.- Lewton, 18 Fla. 328; Apgar v. 1021. Woolston, 43 N. J. Law, 57; Ash v. ^* If the defendant immediately Marlow, 20 Ohio St. 119; Horn v. after such dismissal" procured the Sims (Ga., 1893), 17 S. E. Rep. 670. Actions for Malicious Prosecution 1351 Supp. 75; Moulton v. Beecher, 11 Hun (N. Y.), 192; more fuUy, 1 Abb. N. C. 193, 53 How. Pr. 86.] I. That with a-maUcious intent to injure plaintiff in his good name and ci^dit, to bring him into pubhc disgrace, to cause him to be imprisoned, and to subject him to trouble and expense, defendant did, on or before the day of , 19 , voluntarily go before the grand jury of the county of , in the city of , for the pur- pose of procuring an indictment against plaintiff as herein- after stated. II. That the defendant before said grand jiu-y, falsely and maUciously, and without any reasonable or probable cause whatever,' charged plaintiff with having uttered and pub- Ushed of and concerning him, the defendant, certain crimi- nal Ubels, which said charge so made by defendant was wholly false and untrue, as he then well knew. III. That defendant falsely and maliciously, and without any reasonable or probable cause, procured the grand jury aforesaid to find and present to the court of an indictment against plaintiff for said alleged criminal hbels. [IV. That on the said day of , 19 , the said indictment was duly transferred to the Court of for prosecution and trial.] V. That defendant falsely and maUciously, and without any reasonable or probable cause, procured a warrant for the arrest of plaintiff upon the aforesaid indictment, to answer the charges therein made against him as aforesaid, and afterward caused plamtiff to be taken in custody and taken before a judge of said Court, and to be then and there compelled to give bond to appear for trial therein. VI. That defendant falsely and maUciously, and without any reasonable or probable cause, procured plaintiff to be arraigned before said Court, and compelled him to plead to said indictment. VII. That plaintiff pleaded not guilty, and was then and ever since has been ready and anxious to stand trial on said indictment, but the district attorney in and for the county 1352 Abbott's Forms of Pleading of , after consulting with defendant, and in com- pliance with his request, but against the will and protest of plaintiff, did on or about the • day of , 19 , move the said Court that said indictment "be dismissed, and the said Court did then and there grant said motion, and it was thereupon adjudged and ordered by the said court that said indictment and prosecu- tion against plaintiff be dismissed, and a dismissal thereof was thereupon directed by said com-t and entered of record therein.'^ VIII. That the said indictment, complaint and prosecu- tion, and each of them, has been wholly ended and determ- ined in favor of plaintiff in the manner hereinbefore set forth. IX. That by reason of the premises* plaintiff has been greatly injured in his good name and credit [set forth any special damage — see Form 1228] to his damage dollars. Wherefore [etc., demand of judgment], 1232. The Same, where Plaintiff was Charged with a Misdemeanor, and Acquitted by Magistrate. [Adapted from Cousins v. Swords, 14 App. Div. 338, 43 N. Y. Supp. 907; Johnston v. Meaghr (Utah), 47 Pac. Rep. 861.] I. That on or about the day of , 19 , " See as to this being a sufficient were and are completely and finally termination of the prosecution to closed and ended. Thomason v. support the action, Reit v. Meyer, Demotte, 9 Abb. Pr. (N. Y.) 242; supra; Brown v. Randall, 36 Conn. 18 How. Pr. 529. 56, 4 Am. Rep. 35; Graves v. Dawson, An allegation, that since the arrest 133 Mass. 419; Kennedy t). HoUoday, the complainant (defendant) has 25 Mo. App. 503. But a complaint not proceeded to try the plaintiff is demurrable which merely alleges on said charge, does not sufficiently that the prosecuting officer declared show that there has been a terminar the complaint frivolous, and refused tion of the criminal action. King v. to try it, whereby the prosecution Johnston, 81 Wis. 578, 51 N. W. and all proceedings on the indictment Rep. 1011. Actions for Malicious Prosecution 1353 the defendant maliciously, and without probable cause, cRarged the plaintiff with an offense in the words and figures following: "That A. B. (plaintiff) did unlawfully and will- fully torture a certain animal, viz., a horse, under the fol- lowing circumstances, to wit: Said deponent (defendant) on said date saw the said A. B. (plaintiff) double the lash of his whip and beat the said horse around the body, thereby causing the said animal unjustifiable physical pain and in- jury;" that defendant lodged said complaint with the officer in charge of the police station at , in the city of , and thereupon caused the immediate arrest of the plaintiff on said charge; that plaintiff was thereupon ar- rested and lodged in said station house, and there deprived of his liberty for the space of hours. II. That on the day of , 19 , said plaintiff was produced in the City Magistrate's Co\irt of said city before Hon. J. K., one of the Magistrates of said court, and defendant then and there appeared and then and there maliciously, and without probable cause, again charged plaintiff with said offense; that thereupon plaintiff was duly tried on said charge before said magistrate and duly acquitted thereof, and restored to his libejty, and the pro- ceeding was duly dismissed by said magistrate ;^^ that by reason aforesaid the said charge, and the proceedings there- upon, have fully terminated, and in plaintiff's favor. III. [Allege damages as in Form 1228] Wherefore [etc., demand of judgment]. 1233. For an Arrest in a Civil Action. [From Rothschild v. Whitman^ 132 N. Y. 472, aff'g 57 Hun, 135, 32 N. Y. State Rep. 560, 10 N. Y. Supp. 427.] 19 i^An allegation "that the (magis- is sufficient, against demurrer, to trate), after hearing, announced that show the termination of the action, the charge of larceny was not sus- Mental v. Hippley, 165 Pa. St. 558, tained, and that the plaintiff was 30 Atl. Hep. 1021. publicly discharged from arrest," "In the decisions at Special and 1354 Abbott's Forms or Pleading I. That on or about the day of , 19^ , plaintiff was engaged in business in the city of , county of , and State of , as manager of the dry goods business of M. N., and was, on or about said date, conducting the said business as manager. II. That on or about said date, the defendants, not having any reasonable or probable cause of action against the plain- tiff, did then and there wrongfully and maUciously begin an action against the plaintiff, and did maUciously cause to be issued by [Mr, Justice J. K., of] the Covu-t of the State of ,^ a certain order of arrest in said action and placed the same in the hands of the sheriff of the county of. for service, and did thereupon cause the plaintiff to be taken into custody by the said sheriff thereunder, and held to bail in the sum of dollars, and that plaintiff was kept in custody under said order of arrest by the said sheriff for days, and was compelled to, and did, disburse large sums of money, aggregating dollars, in and about said arrest, and to counsel; and that plaintiff, by reason of said arrest, was compelled to give up said business, and was greatly injiu-ed in his good name and credit among merchants in the city of , and else- where, and among his friends and acquaintances, and suf- fered greatly in body and mind by reason of the disgrace attendant thereon. III. That thereafter, and upon the motion of this plaintiff. General Term, it was held that the this kind is not reached by demurrer, complaint stated a cause of action but by motion to separately state both on the theory of malicious prose- [Freer v. Denton, 61 N. Y: 492; cution and of false imprisonment. Gunn v. Fellows, 41 Hun (N. Y.), The first bracketed allegation in 257.] A count for malicious prosecu- paragraph III is not necessary to tion may be, and is often advisedly, the action for malicious prosecu- joined with a coimt for false imprison- tion. ment. See Barr v. Shaw, 10 Hun Two theories of action may not (N. Y.), 580. properly be commingled, but must be "* See note at beginning of this separately stated by way of different chapter on effect of the order having counts or causes of action. N. Y. been granted by a court of superior Code Civ. Pro., § 483. A defect of jurisdiction. Actions for Malicious Prosecution 1355 the said alleged order of arrest was duly vacated by said Court [upon the ground the same was null and void, and that the court had not jurisdiction to grant the same], and an order was duly entered thereon, on or about the day of , 19 , and defendant (this plaintiff) discharged thereunder; [that on or about the day of ,19 , a copy of said order was duly served upon the attorney for the plaintiff in said action; that no appeal has been taken from said order, and the time in which to take an appeal therefrom has expired before the commence- ment of this action] ;^^ and that said proceeding has been wholly and finally terminated in favor of the plaintiff and against the said defendants by final order of said court. ^^ IV. That by reason of the premises plaintiff suffered dam- ages in the sum of dollars. Wherefore [etc., demand of judgment].^^ 1234. For a Seizure of Plaintiff's Property in a Civil Ac- tion.2* I. That on or about the day of , 19 , at , the defendant maliciously and without reasonable 21 Not in the precedent, but in- rendered in his favor and against serted in deference to decision in the plaintiff therein." Ingram v. Root, 51 Hun, 238, 3 N. Y. ^^ Where the action is founded Supp. 858, holding that such an aver- upon the proceedings taken in a civil ment is necessary. action, the plaintiff is required to ^2 It is not necessary to show that estabMsh his case by clear and con- the action itself has terminated; vincing evidence. Ferguson v. Ar- it is sufficient to show that the order now, 142 N. Y. 580. of arrest has been set aside (Hogg v. ^^ That this action will lie, see Pinckney, 16 So. Car. 387) and no ap- Paul v. Fargo, 84 App. Div. 9, 82 peal taken therefrom. Ingram v. N. Y. Supp. 369; McNamee v. Root, supra. Minke, 49 Md. 122; Mitchell v. If no order of vacatur was entered Southwestern R. Co., 75 Ga. 398; but the action was finally decided in Noonan v. Orton, 30 Wise. 356. So, the favor of the (there) defendant, where a garnishee process has been change allegation as follows: "That issued. Wetmore v. MeUinger, 64 thereafter such proceedings were had Iowa, 741, 52 Am. Rep. 465; O'Neil in such action that it was finally v. Johnson, 53 Minn. 439, 55 N. W. duly determined in favor of this Rep. 601. plaintiff, and final judgment was duly 1356 Abbott's Forms of Pleading or probable cause obtained from Hon. J.' K., one of the jus- tices of the Court, in and for the county of ,^'' a warrant of attachment, in a certain action then and there pending, wherein the defendant was plaintiff, and the plain- tiff herein was defendant, directed to the sheriff of said county, commanding said sheriff [here state substance of the said writ], and defendant thereupon deUvered the same to the said sheriff, and maliciously and without probable cause required the said sheriff to levy said warrant of attachment on plaintiff's stock of goods, wares and merchandise at , and took the same into his possession [that the said defendant afterwards maliciously and without probable cause applied to the said Court {or, to Hon. J. K., one of the justices of said court), and obtained an order from said court {or, justice) for the sale of said goods and merchandise, and caused the said sheriff to sell the same]. II. That at said time plaintiff was engaged at said as a dealer in ; that in bringing said action and obtaining said attachment, and in causing the sheriff to levy upon and seize [and sell] plaintiff's said stock of goods, the defendant acted maliciously and without probable cause, and with the intent to injure the said plaintiff and break up his business. III. That said action afterwards came on for trial at, the term of said court, and was tried, and final judg- ment was duly rendered in favor of this plaintiff. IV. [Set forth damages,^^ as]: That said stock of goods so 2* See note at beginning of this the requirement is undoubtedly sat- chapter on the presumption at- isfied by showing the fact of the ar- taohing to the granting of such an rest and detention thereunder. In order by a court of superior juris- case of an attachment it will be safer diction. to add a charge of special loss or ^' A complaint is demurrable unless inconvenience. For measure of dam- it shows that plaintiff suffered special ages, see Burton v. St. Paul, etc., loss, annoyance or inconvenience, R. R. Co., 33 Minn. 189; Lawrence where the action is founded upbn the v. Hagerman, 56 111. 68; Woods v. malicious prosecution of a civil suit. Finnell, 13 Bush (Ky.), 628; Ken- Wetmore v. MeUinger, 64 Iowa, 741. nedy v. Meacham, 18 Fed. Rep. Where an arrest has been obtained, 312. Actions for Malicious Prosecution 1357 levied upon and sold by said sheriff was of the value of dollars, but the same was sold for the sum of dollars; that by the said seizure and sale of said stock of goods plaintiff's business was and is destroyed; that plaintiff has expended the sum of dollars in defending the said action in addition to the costs allowed to him therein; in all to- plaintiff 's damage dollars. Wherefore [etc., demand of judgment]. 1235. For Maliciously Filing Lis Pendens, to Prevent Sale of Plaintiff's Property." I. That at all the times hereinafter mentioned plaintiff was, and now is, the owner of certain premises in the city of , viz. [describing them briefly]. II. That the defendants, on or about the day of , 19 , maliciously and without probable cause, filed in the office of the clerk of the county of , a notice of pendency of an action in the Court, wherein the defendants were plaintiffs and this plaintiff and Others were defendants; that it was, in said notice, alleged that said action had been commenced, and was pending to recover the interest of one M. N., the husband of this plain- tiff, in the said premises; that the complaint in said action was filed in the office of said clerk on said day, and was referred to in said notice, and alleged and declared the said premises to be the property of said M. N., and that plaintiff's title thereto was fraudulent and void as against the plaintiffs therein, who alleged that they were judgment creditors of said M. N. " In Risser v. Liberman Bros., The precedent is from Smith v. 102 App. Div. 482, 92 N. Y. Supp. Smith, 26 Hun, 573 (reversing on 942, plaintiff alleged that a replevin reargument a prior decision in 20 action and requisition were " unlaw- Hun, 555), corrected to meet the fully and maliciously begun and is- criticism of the court. The sufB- sued"; held that the complaint was ciency of the form is further sup- defective in not showing the favor- ported by Ghiglione v. Friedman, able termination of the action or that 115 App, Div. 606, 100 N. Y. Supp. unauthorized proceedings were taken 1024. under the writ. 1358 Abbott's Forms of Pleading III. That the said defendants, well knowing that plaintiff was the owner of said premises, maliciously and without reasonable or probable cause, thereby caused it to be sus- pected that this plaintiff was not the owner of said premises, but that she was the fraudulent holder thereof; and partic- ularly with intent to prevent this plaintiff from effecting a sale thereof, wrongfully and ntaliciously, and without probable cause therefor, or for the bringing of said action, caused said notice to be filed as aforesaid, and thereby gave notice of all the matters therein alleged, as well as in said complaint set forth, to all the world. IV. That the statements and allegations contained as aforesaid in said notice, and in said complaint, were and are wholly false, and were made maliciously and with the intent to injure the sale of said premises, as well as this plaintiff, and to prevent the sale of said premises, and that said action was brought maliciously and without probable cause. V. That thereafter, and on or about the day of ,19, the said action was discontinued, and said notice of pendency of action was duly canceled of record, by order of said Court, which order was duly made upon the application of the defendants herein; that thereby said action and notice became wholly ended. VI. That after the filing of said notice, and before the same was canceled, as aforesaid, to wit, on or about the day of , 19 , this plaintiff had a bona fide ofi'er and could have sold said premises for the sum of dollars to one 0. P., but that, in consequence of the filing of said notice, and the allegations contained therein and in said complaint, plaintiff was unable to consummate a sale thereof to said purchaser, to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. 1236, For Bringing a Civil Action. ^^ [Sustained in McCardle v. McGinley, 86 Ind. 538.] ^ This action can be maintained in either arrest, attachment, garnish- some jurisdictions, without showing ment or other collateral relief. See Actions for Malicious Prosecution 1359 I. That on or about the day of , 19 , the defendant mahciously and without probable cause com- menced an action against this plaintiff before Hon. J. K., a justice of the peace of county, upon a false and groundless clarni [that the plaintiff was indebted to the defendant in the sum of dollars for services rendered to plaintiff as , — or, otherwise briefly, according to the fact]. II. That plaintiff was obliged to, and did, appear by attorney, and answer and defend said action; that the same was tried before said justice and a jury on the day of ,19 , and a verdict rendered in favor of plaintiff, upon which judgment was then and there duly given by the said justice in favor of this plaintiff and against said de- fendant.^^ III. That plaintiff was put to great trouble, inconven- ience and expense in defending said action, in procuring witnesses, employing counsel, and otherwise, and necessarily laid out the sum of dollars therefor, and was allowed by said justice and recovered of the defendant the sum of dollars only as costs and disbursements in said action.'" IV. That by reason of the premises plaintiff has been damaged in the sum of dollars. Wherefore [etc., demand of judgment]. 19 Am. and Eng. Encyc. of Law Md. 122; Wetmore v. Mellinger, 64 (2d ed.), 652; McCardle v. McGin- Iowa, 741, 52 Am. Rep. 465; and in ley, 86 Ind. 538, 44 Am. Rep. 343; England: Quartz Hill Gold Mining Closson V. Staples, 42 Vt. 209, 1 Co. v. Eyre, L. R. 11 2 B. Div. Am. Rep. 316; Stone v. Stevens, 12 674. Conn. 219; Woods v. FinneU, 13 ^ If originally rendered againgt Bush (Ky.), 628; Marbourg v. Smith, plaintiff and reversed on appeal it is 11 Kan. 554; Brown v. Cape Girar- only prima facie evidence of the ex- deau, 90 Mo. 377. istence of probable cause, unless The contrary has been held in given by a court of superior jurisdic- many other States. See Paul v. tion. See note at beginning of this Fargo, 84 App. Div. 9, 82 N. Y. chapter. Supp. 369; Bitz v. Myer, 40 N. J. L. '"See measure of damages as an- 252; Muldoon v. Rickeiy, 103 Pa. nounced in Brown v. Cape Girardeau, St. 110; McNamee v. Minke, 49 90 Mo. 377. CHAPTER XLV COMPLAINTS IN ACTIONS FOR LIBEL AND SLANDER ' A few of the ruleS of pleading es- tablished in the actions of libel and slander may aptly be stated here: If the words complained of are unambiguous and incapable of being understood in any other sense than ' defamatory, the law will presume falsity and malice, and an averment of either is unnecessary. Hunt v. Bennett, 19 N. Y. 174; Dixon v. Allen, 69 Cal. 527. No innuendo is necessary. Turner v. N. Y. Re- corder Co., 3 Misc. 314, 23 N. Y. Supp. 766. If the words of an alleged libel or slander are ambiguous, and the sense in which they were used is uncertain, if the words are capable of a construc- tion which would not make them ac- tionable, a complaint will be held insufficient unless an allegation or innuendo is included, that they were used in a sense to make them action- able. Hemmens v. Nelson, 138 N. Y. 517; Crashley v. Press Pub. Co., 179 id. 27; Klaw v. N. Y. Press Co., 137 App. Div. 686, 122 N. Y. Supp. 437; Irving V. Irving, 121 App. Div. 258, 105 N. Y. Supp. 609. If there be a proper allegation or innuendo of the actionable intent, the issue is for the jury if such intent is denied. Kuster v. Press Pub. Co., 80 App. Div. 615, 80 N. Y. Supp. 1050. If plaintiff give a construction to the language by an innuendo, or al- legation, he will be bound by it, and cannot urge any different construe- 1360 tion, (Beecher v. Press Pub. Co., 60 App. Div. 536, 67 N. Y. Supp. 895,) or the court will not seek any other possibly hbelous meaning. Rossiter v. N. Y. Press Co., 141 App. Div. 339, 126 N. Y. Supp. 325. If, however, the words are action- able per se, an allegation by way of an innuendo which asserts an untenable interpretation may be rejected as surplusage. Morrison v. Smith, 177 N. Y. 366; Martin ;;. Press Pub. Co., 93 App. Div. 631, 87 N. Y. Supp. 859. An innuendo cannot enlarge the facts set forth specially in other por- tions of the complaint; its purpose is merely to explain the application of the words employed. When not justified by the antecedent facts to which it refers, it must be rejected. O'Connell v. Press Pub. Co., 214 N. Y. 352; Fleischmann v. Bennett, 87 N. Y. 231; Barringeri). Sun Printing, etc., Assoc, 160 App. Div, 691, 145 N. Y. Supp. 776. Plaintiff is not limited by the innuendo but may fall back on the natural meaning of the words. Metcalfe v. Bill Board Pub. Co., 176 App. Div. 859, 163 N. Y. Supp. 757. If the words used negative an allegation of the intent with which defendant is alleged to have used , them, the intent is not admitted by demurrer. See Maerlender v. Porter, 114 App. Div. 180, 99 N. Y. Supp. 533. Plaintiff may allege that the words Actions for Libel or Slander 1361 were "published," without alleging how they were published. McLaugh- lin V. Schnellbacher (111.) 65 111. App. 50; Wilcox v. Moon, 63 Vt. 481; 22 Atl. Rep. 80. And see, also, Ind. Sun Co. v. Horrell, 53 Ind. 527. By provision of statute, of very general adoption in code states, it is not now necessary to state in the complaint any extrinsic facts, for the purpose of showing the apphca- tion to the plaintiff of the defama- tory matter out of which the cause of action arose, but it is sufficient to state generally that the same was published or spoken concerning the plaintiff. See Van Heusen v. Ar- gentreau, 124 App. Div. 776, 109 N. Y; Supp. 238; Nunally jd. N. Y. Zeitung Pub. Co., 117 App. Div. 1, 101 N. Y. Supp. 1041; Nunally v. Tribune Assoc, 111 App. Div. 485, 97 N. Y. Supp. 908, aff'd 186 N. Y. 533; N. Y. Code Civ. Pro., §535. If, however, plaintiff's own allega- tions show that the charge could have had no application to him, but referred to some one else, an alle- gation that the libel was published of and concerning him will not sustain his pleading against a de- murrer. Carr v. Sun Printing, etc., Assoc, 177 N. Y. 131; Fagan v. Evening Journal Pub. Co., 129 App. Div. 28, 113 N. Y. Supp. 62; Fleisch- mann v. Bennett, 87 N. Y. 231. A difference between plaintiff's name and the name in the article does not of itself destroy the allegar tion that it was published of and concerning him. Roth v. Tribune Assoc, 166 App. Div. 911, 102 N. Y. Supp. 755; Carpenter v. Glen Falls Post Co., 164 App. Div. 396, 149 N. Y. Supp. 801. It is not necessary to include an allegation that the article was published of the plaintiff, if from the other facts stated it necessarily so appears. Rivers v. N. Y. Eve. Journal Assoc, 120 App. Div. 574, 104 N. Y. Supp. 1081. But an identity of surnames is not alone sufficient. Lawrence v. Sun Printing, etc., Assoc, 135 App. Div. 368, 120 N. Y. Supp. 384. A corporation engaged in business may sue for libel, and need not allege special damage when -the charge will naturally affect its credit and business injuriously and directly and will necessarily and directly oc- casion pecuniary injury. See Re- porters' Assoc. V. Sun Printing, etc, Assoc, 186 N. Y. 437; Kemble & Mills'!). Kaighn, 131 App. Div. 63, 115 N. Y. Supp. 809; Phillip Co. v. N. Y. Staats-Zeitung, 165 App. Div. '377, 150 N. Y. Supp.' 1044; Moore & Munger Co. v. Motor Trades Pub. Co., 170 App. Div. 779, 155 N. Y. Supp. 929, aff'd 217 N. Y. 683. Nor in such case need it allege the specific damage. Id. But a corporation may not sue upon words spoken or published solely concern- ing its officers or stockholders. Hapgood V. Crawford, 125 App. Div. 856, 110 N. Y. Supp. 122. An unincorporated voluntary as- sociation may sue for a libel affecting its business and credit, but not merely its reputation. Stone v. Textile, etc., Assoc, 137 App. Div. 655, 122 N. Y. Supp. 460. Where action is brought by an officer under Code Civ. Pro., § 1919, the allegation of publication should be that it was published of and concerning the association, not of and concerning plaintiff. Id. The husband may sue for the ill- ness of his wife caused by publi- cation of words actionable per se. Garrison v. Sun Printing, etc, Assoc, 150 App. Div. 689, 135 N. Y. Supp. 121; see Form 1263. The words themselves, constitut- 1362 Abbott's Forms of Pleading I. Libel. page 1237. Words libelous on their face, general form, libel referring to plaintiff by name 1363 1238. The same, application to plaintiff not appearing on face of hbel 1366 1239. The same, words charging crime 1367 1240. The same, but extrinsic facts required to show that the charge imputed commission of a crime 1368 1241. The same, charge of disgraceful or degrading act 1369 1242. The same, words not necessarily actionable, and extrinsic facts essential to show libelous meaning 1370 1243. The same, charge relating to official's public duty 1371 1244. The same, charge relating to a trade or profession; by physi- cian 1372 1245. The same, by an attorney 1374 1246. The same, by merchant or manufacturer 1375 1247. The same, by partners 1376 1248. The same, by partners where charge makes no reference to the plaintiffs, by name or by firm name 1377 1249. Words not actionable per se; extrinsic facts necessary to show the charge to be defamatory 1378 1250. The same, another form, charge of disgraceful act 1379 1261. The same, where statement of the libel shows it to have been qualifiedly privileged 1380 1252. Allegations showing special pecuniary damages 1381 1253. Libel on the quality of a thing, plaintiff the manufacturer, dealer or owner 1383 1254. Libelbymeansof words of a code, meaningless on their face. 1383 1255. Libel by means of published portrait 1385 1256. Libel by means other than written words 1385 1257. Where the libel was in a foreign language 1386 ing the alleged defamatory matter, the action, and plaintiff must allege must be set out in the complaint. and prove it. O'Connell v. Press Crowell V. Schneider, 165 App. Div. Pub. Co., 214 N. Y. 352; Reporters' 690, 151 N. y. Supp. 160; Germ Proof Assoc, v. Sun Printing, etc., Assoc, Filter Co. v. Pasteur, etc., Co., 81 186 N. Y. 437; Walker v. Best, 107 Hun, 49, 30 N. Y. Supp. 584, 62 App. Div. 304, 95 N. Y. Supp. 151; State Rep. 562; Battersby w. Collier, Hehmeyer v. Harper's Week]. Corp., 24 App. Div. 89, 48 N. Y. Supp. 976. 170 App. Div. 459, 156 N. Y. Supp. A failure to do so, may, in some 98. See further notes on damages, States, however, be ground for special post, Forms 1237 and 1252. demurrer only. White v. Parks, 93 All those who concur in the publi- Ga. 633, 20 S. E. Rep. 78. cation of the libel are principals and If the words are defamatory per may be sued together, or separately, se, damage is presumed, and need not as plaintiff may elect. See Thomas v. be alleged; but if innocent upon their Rumsey, 6 Johns. (N. Y.) 26. face, special damage is of the gist of Actions for Libel or Slander 1363 PAGE 1268. Specific allegation of publication in defendant's newspaper. 1387 1259. Allegation that defendant instigated publication 1387 1260. Allegation of publication of libel by corporation 1388 1261. By one of a class libeled ... 1388 1262. Allegation of repetition, or amplification, of the charge, in enhancement of damages 1389 1263. By husband for illness of wife caused by libel 1390 II. Slander. 1264. Words slanderous per se; general form 1390 1265. The same, words charging a crime (perjury) 1392 1266. The same, words charging crime (perjury) in such manner as to require extrinsic facts to be set forth to show intent . 1393 1267. The same, words used of ambiguous meaning, with allegation of intent '. . . . 1394 1268. The same, another form 1395 1269. The same, where words refer to plaintiff in his profession or occupation 1395 1270. The same, another form, words charging general dishonesty . 1397 1271. The same, words charging unchastity to a woman 1398 1272. Words spoken ironically 1399 1273. Words spoken in a foreign language 1400 1274. Slander of title to realty 1400 1275. Slander of title to personalty 1402 I. LIBEL 1237. Words Libelous on Their Face; General Form; Referring to Plaintiff, by Name. I. That on or about the day of , 19 , at ,^ the defendant maliciously ^ [or, wantonly and *Each publication of _ defamatory false and malicious is unnecessary; matter is a new pubUcation and and if it were necessary, an allegation gives rise to a distinct cause of action that it was libelous is a sufficient -which should be separately stated. allegation of falsehood and malice. Fisher v. N. Y. Staats-Zeitung, 114 Hunt u. Bennett, 19 N. Y. 173.' But App. Div. 824, 100 N. Y. Supp. 185. since actiml malice, as distinguished The time and place of the publica- from malice in law, must be proven tion should be alleged and if more in order that punitive damages th9,n one publication, the others may be recovered, a direct allegation should be alleged as separate causes of the existence of malice is de- of action. Carro de Pasco Co. v. sirable, or facts may be alleged from Haggin, 106 App. Div. 401, 94 N. Y. which an inference of malice would ^upp. 593. See Form 1262, and note. arise. Bingham v. Gaynor, 135 ' Where the libelous matter charges App. Div. 426, 119 N. Y. Supp. 1010. a crime, an allegation that it was The averment usual in the old 1364 Abbott's Forms of Pleading carelessly] * composed and published ^ concerning the plain- tiff,* [in a newspaper ' called the , and of extensive circulation throughout the State of New York and else- where],' * the false and defamatory matter following, to wit: [copy of the article complained of; or say, a certain article, con- taining the false and defamatory matter following, to wit; and give verbatim extracts from the article, including all the objectionable matter].^ precedents — that the defendant well knowing the premises, and mahoi- ously intending to injure the plaintiff, and to bring him into great scandal and disgrace, and to cause it to be believed that the plaintiff had been guilty, etc. — -were not averments necessary to be proved, but mere suggestions, by way of inducement to the libel, and are superfluous under the Code. Coleman v. Southwiolc, 9 Johns. (N. Y.) 45. * This win support punitive dam- ages. Karwowski v. Pitass, 20 App. Div. 118, 46 N. Y. Supp. 691. * Where one furnishes facts for publication, knowing, or having rea- sonable cause to believe, that they are to be published, and they are in fact published, he is just as liable as the actual publisher. Youmans v. Smith, 153 N. Y. 214. Under fa- miliar rules of pleading, the charge may be directly made, that defendant published, since that is the ultimate, and, therefore, the pleadable, fact. Kharas v. ColUer, Inc., 171 App. Div. 388, 157 N. Y. Supp. 410. If plaintiff attempts to set forth the method whereby -the publication was effected, it is essential that the. complaint should allege that defend- ant made the statement with the intent that the same should be pub- lished, or knew that the person to whom he made the statement was a reporter of a paper. See Robinson V. Battle, 148 App. Div. 230, 133 N. Y. Supp. 57; Schoepflin v. Coffey, 162 N. Y. 12, and Form 1259. See Form 1260 for specific alle- gation of publication by corporation. See Form 1246 for allegation of publication by means of a letter. ' See note at beginning of this chapter. ' It is not necessary, though it may be usual, to allege the means of pub- lication. (See general note at begin- ning of this chapter.) If the facts claimed to show publication are set forth, they must be sufficient in law. Thus, alleging that defendant sent a letter to the plaintiff, and the same was, by means of such sending thereof, received and read by plain- tiff, and thereby published by the plaintiff, is bad; for the letter is to be presumed sealed, and sending a sealed letter is not publication. Lyle V. Clason, 1 Cai. (N. Y.) 581. * The action should be tried in the county in which the newspaper is published in the absence of an allegation of circulation outside the county. MacCormac v. Tobey, 109 App. Div. 581, 96 N. Y. Supp. 302. Other publications in other news- papers cannot be shown. Collier v. Postum Cereal Co., 150 App. Div. 169, 134 N. Y. Supp. 847. ' A complaint for a libel must set it out. It is not enough to state its purport. Wood v. Brown, 6 Taunt. Actions for Libel or Slander 1365 II. That the facts stated in said publication were wholly false, and that by means of said publication the plaintiff was greatly injured in his credit and reputation, and suffered great pain and mental anguish, i" to his damage dollars." 169; s. c, 1 Eng. Com. L. R. 560. (See general note at beginning of this chapter.) But it is not neces- sary to set out the whole of the obnoxious publication; the pleader may extract particular passages com- plained of, provided their sense be clear and distinct. Culver v. Van Anden, 4 Abb. .Pr. (N. Y.) 375; Cheetham v. Tillotson, 5 Johns. (N. Y.) 430. Where the libel is contained in two writings, or where a publication other than the libelous one is essen- tial to be shown in order to disclose the latter's character, both are prop- erly set forth. See Grant v. Herald Co., 42 App. Div. 354, 59 N. Y. Supp. 84. See Form 1262. If the libelous article was published in a foreign language, set it out in the original, and aver also its meaning in English. See Lettman v. Ritz, 3 Sandf. (N. Y.) 734; Pelzer v. Benist, 67 Wise. 39i. See Form 1257 (libel); Form 1273 (slander). If the words are meaningless, because of their being code signs, allege as in Form 1254. '"A bill of particulars of the gen- eral damage will not be required. Town Topics Pub. Co. v. Collier, 114 App. Div. 191, 99 N. Y. Supp. 677; Bell v. Heatherton, 66 App. Div. 603, 73 N. Y. Supp. 242. 1' Aver special damage if any. See Form 1252, post. Where damage is presumed, and special damage is, therefore, not essential to the action, such special damage may be re- covered, if pleaded. Rembt v. Roehr Pub. Co., 71 App. Div. 459, 75 N. Y. Supp. 861; Loftus v. Bennett, 68 App. Div. 128, 74 N. Y. Supp. 290; Hicks V. Walker, 2 Greene (la.), 440. Roberts v. Breckon, 31 App. Div. 431, 52 N. Y. Supp. 638. In actions for libel, when the court can discern an injurious meaning in the plain and natural purport of the publication itself, some damage is to be presumed; but when the words are not actionable per se, that is, are not in their natural and obvious construction, injurious, the plaintiff must aver and prove pecuniary damage. King v. Sun Printing, etc., Assoc, 84 App. Div. 310, 82 N. Y. Supp. 787, aff'd 179 N. Y. 600; Stone V. Cooper, 2 Den. (N. Y.) 293; Ben- nett V. Williamson, 4 Sandf. (N. Y.) 60; Caldwell v. Raymond, 2 Abb. Pr. (N. Y.) 193. For the publication of words action- able per se compensatory damages for mental distress, and resulting physical illness and suffering, may be recovered. Garrison v. Sun Printing, etc., Assoc, 207 N. Y. 1. But an action based upon a charge not actionable per se cannot be sustained by proof of mental distress and physical pain. Id. If the injury was willful or inten- tional, the jury is at liberty to award exemplary damages. Even against the proprietor of a newspaper who remains absent and surrenders to his employees the general manage- ment. Crane v. Bennett, 177 N. Y. 106. For recent discussions of the distinction between legal and actual 1366 Abbott's Forms op Pleading [Optional allegations:] ^^ III. That at the time of such publication and for years prior thereto, plaintiff held the position of [state any public or private position held]. IV. That at the time of such publication defendant knew that the statements therein contained were untrue. Wherefore [etc., demand of judgment] . 1238. The Same, where the Application to Plaintiff does not Appear on Face of Libel. [Wherever — as in New York, by Code Civ. Pro., § 535 — the statute has dispensed with the necessity of alleging the extrinsic facts showing application of the libelous matter to plaintiff, Form 1237 may be used without addition.^^ tn other jurisdictions the facts must he alleged showing its application to plaintiff, as;] I. That at all the times hereinafter mentioned plaintiff was the master of the Lodge of Free Masons. II. That on or about the day of , 19 , at , the defendant maliciously pubUshed of and concerning the plaintiff the false and defamatory matter following, to wit: "The master of the Lodge of Free Masons (the plaiatiff meaning)," [etc., setting farth the alleged libel and continuing as in Form '1237]. malice, and the respective burdens and IV are not irrelevant, but affect of proof, see Carpenter v. N. Y. Eve. the damages. They may be proved Journ. Pub. Co., Ill App. Div. although not specifically alleged; de- 266, 97 N. Y. Supp. 478, and cases fendant's knowledge may be shown cited; Crane v. Bennett, supra. under an allegation of express malice. Brandt v. Morning Journal Assoc, Bingham v. Gaynor, 135 App. Div. 81 App. Div. 183, 80 N. Y. Supp. 426, 119 N. Y. Supp. 1010. 1002, aff'd 177 N. Y. 544. i' See note at beginning of this 12 The allegations in paragraphs III chapter. See, also, Form 1248, post. Actions for Libel or Slander 1367 1239. The Same, Charge of Crime; " (Perjury). '^ I. That heretofore, and on or about the day of ,19 , m an action then pending in the Court, wherein one M. N. was plaintiff and this defendant was defendant, and which was then and there being duly tried, plaintiff was duly sworn as a witness and gave testi- mony materiarto the issues therein. ^^ II. That thereafter, and on or about the day of , 19 , at , the defendant maliciously pub- Ushed of and concerning the plaintiff the following false and defamatory matter, to wit: [here set out the libelous matter verbatim," as:] "What A. B. (this plaintiff meaning) swore to on that trial (meaning the aforesaid trial) was a wilful lie;" that said defamatory statement referred to, and was in- tended by defendant to refer to, the testimony theretofore given by plaintiff as a witness at said trial, and that defend- " It does not matter that the acts charged in the article do not con- stitute a crime, if the writer or pub- lisher states them to be a crime; it is the charge of the commission of a crime, not the legal accuracy of the charge, that imparts the libelous quality. Dooley v. Press Pub. Co., 170 App. Div. 492, 156 N. Y. Supp. 381. If the acts were charged to have been done in another State or coun- try the foreign law must be pleaded to show that the acts constitute a crime, if either there is no presump- tion that the common law is in force in the foreign jurisdiction (Crashley V. Press Pub. Co., 179 N. Y. 27), or the crime was unknown at com- mon law. See, also. Sparrow v. Maynard, 8 Jones L. (No. Car.) 195. As to method of pleading a foreign law, see Chapter LIX. '^ It is weU settled that the com- plaint must show that the false ewfearlng was such as would consti- tute the offense of perjury; therefore, if there is nothing in the words which connects them with a judicial pro- ceeding, the complaint is insufficient imless it contains an averment that the words were spoken in reference to a judicial proceeding. Phinckle t;. Vaughan, 12 Barb. (N. Y.) 215. And the charge of willful false swear- ing must be fairly drawn from the words used. O'Neill v. Star Co., 121 App. Div. 849, 106 N. Y. Supp. 973. 1' It may not be necessary to allege that the plaintiff's testimony related to a material point. Such an objec- tion cannot be raised after verdict. Niven v. Munn, 13 Johns. (N. Y.) 48; Chapman v. Smith, Id. 78. See, also, Dalrymple v. Lofton, 2 McMull. (Ind.) 112. " If the words impute the plaintiff's commission of a crime, no innuendo is necessary. Dudley v. NowiU, 11 App. Div. 203, 42 N. Y. Supp. 681. 1368 Abbott's Forms of Pleading ant thereby intended to charge plaintiff with willful false swearing at said trial. ^^ III. That by reason of the premises plaintiff has been injured in his good name and reputation, and has suf- fered pain and mental anguish, to his damage dollars. ^^ Wherefore [etc., demand of judgment]. 1240. The Same, Another Form, Requiring Extrinsic Facts to Show that the Charge Imputed the Commis- sion of a Crime. - I. That at the time hereinafter mentioned the house of the defendant, at , had been burned down, and it was suspected in the community that it had been feloniously set on fire. II. That the defendant, knowing the premises, on the day of , 19 , maliciously composed and published concerning the plaintiff, in a newspaper called the , and of general circulation in said community [or, otherivise], the following false libel, to wit: "He," meaning the plaintiff, "kindled the fire," meaning the fire by which defendant's house had been burned down, "and I can prove it." 20 III. That thereby the defendant meant and intended to mean, and was understood in said community as meaning, that plaintiff had feloniously set fire to his said house, and that he could prove plaintiff guilty of so doing. IV. That by reason of said publication plaintiff has been injured in his good name and credit, to his damage dollars. 2^ Wherefore [etc., demand of judgment]. ''See, generally, on the sufficiency held to sufficiently charge an inten- of this form, the extensive notes at tional and therefore an unlawful the beginning of this chapter, and to act. Keller v. Dean,- 57 App. Div. Form 1237. 7, 67 N. Y. Supp. 842. "Set forth any special pecuniary "Allege any special pecuniary damage as in Form 1252. damage as in Form 1252. 20 Very similar language has been Actions for Libel or Slander 1369 1241. The Saiiie; where the Libel is Calctdated to Expose Plaintiff to Public Hatred, Ridicule or Contempt. [Sustained in Knox v. Meehan, 64 Minn. 280, 66 N. W. Rep. 1149.] 22 I. That the defendants are the proprietors and publishers of a newspaper called "The ," and printed and published, and of general circulation in the village of II. That plaintiff is a well-known member of an organiza- tion in said village in which plaintiff resides; that said or- ganization is well and publicly known as the ["Business Men's Union"], its purpose and object being to promote and advance the business interests of the village. III. That on the Sunday night prior to the publication hereinafter alleged, in the absence of the officiating clergy- man, plaintiff had occupied the pulpit of the * church in said village and had then and there read a discourse to the congregation. IV. That thereafter and on the day of , ^' Held, that the article as shown in the precedent was libelous per se, as calculated to expose a person to public hatred, ridicule or contempt, and that the actionable quality of the article is clearly shown therein. For complaints where the articles quoted were held libelous per se as subjecting a private person to public ridicule, see Hart v. Woodbury Derm. Inst., 113 App. Div. 281, 98 N. Y. Supp. 1000; Martin v. Press Pub. Co., 93 App. Div. 531, 87 N. Y. Supp. 869; Battersby v. Collier, 24 App. Div. 89, 48 N. Y. Supp. 976; Moffatt v. Cauld- well, 3 Hun (N. Y.), 26, 5 N. Y. Sup. Ct. (T. & C.) 256. So, as to an author and public speaker and teacher. Triggs v. Sun Printing & Pub. Assoc, 179 N. Y. 144; d'Altomonte v. N. Y. Herald Co., 154 App. Div. 453, 139 N. Y. Supp. 200. Plaintiff charged with going into a passion and threatening to kill an- other, without cause or justification, held, libelous per se. Gordon v. Eve. Journal Pub. Co., 127 App. Div. 353, 111 N. Y. Supp. 674. In Lamberti v. Sun Printing & Pub. Assoc, 111 App. Div. 437, 97 N. Y. Supp. 694, an article was held not libelous, as plainly published as a jest, and that it was plainly manifest that it was not to be regarded as an attack upon the person's reputation or busi- ness. A false pubUcation of a person's death is not actionable, as not injuring his reputation; the fact that an ar- ticle may subject a person to annoying banter or jest is not enough. Coher V. N. Y. Times Co., 153 App. Div. 242, 138 N. Y. Supp. 206. 1370 Abbott's Forms of Pleading 19 , the defendants maliciously composed and published in said newspaper of and concerning the plaintiff the follow- ing false and defamatory matter, viz: "One" (meaning and intending the plaintiff) "of the B. M. U.'s" (meaning and intending the said Business Men's Union) "occupied a pulpit in a local church on Sunday night. Saturday he" (meaning plaintiff) "was engaged in the endeavor to rob his" (meaning plaintiff's) "neighbor, and Monday returned to his" (mean- ing plaintiff's) "regular avocation of doing the Meehans" (meaning the defendants) "up, as well as their friends and sjonpathizers. This religious hypocrite " (meaning plaintiff) "was the first man to cry 'boycott.'" V. That the defamatory statements contained in said pubUcation were and are wholly false; that said article is calculated to' and does hold plaintiff up to public hatred, infamy and disgrace [or, ridicule and contempt]; that by reason of the pubUcation thereof plaintiff has been greatly injured in his reputation, fame and credit, to his damage dollars. ^^ Wherefore [etc., demand of judgment]. 1242. The Same, Words not Necesgarily Actionable, and where Extrinsic Facts are Necessary to Show the Publication Libelous per se.^* [Adapted from complaint in Gates v. N. Y. Recorder Co., 155 N. Y. 228.] 2' If any special pecuniary damage Hynds v. Fourteenth St. Store, 159 resulted, allege as in Form 1252. App. Div. 766, 144 N. Y. Supp. 1030; *^ See general note at the beginning Irving v. Irving, 121 App. Div. 258, of this chapter. 105 N. Y. Supp. 609. See also Form An innuendo charging the libelous 1254. meaning would be permissible (Hoey If the article is susceptible of the V. N. Y. Times Co., 138 App. Div. meaning ascribed to it by direct 149, 122 N. Y. Supp. 978; Klaw v. allegation or innuendo, plaintiff is N. Y. Press Co., 137 App. Div. 686, entitled to have the case submitted 122 N. Y. Supp. 437), but the direct to the jury. Hoey v. N. Y.' Times allegation is believed preferable. See Co., supra. Philipp V. N. Y. Staats Zeitung, 165 If plaintiff desires to extend the App. Div. 377, 150 N. Y. Supp. 1044; meaning of a word beyond its ac- Actions for Libel or Slander 1371 I. That at the times hereinafter mentioned defendant was, and now is, a domestic corporation, and as such is the owner and pubUsher of a newspaper called the ; that said newspai)er is of general circulation in the city of and its vicinity. II. [Allege the extrinsic facts in direct and traversable form, as:] That a concert hall at Coney Island is a place of evil report in the said city of and its vicinity, and is, and is there generally known and understood to be, a resort for disorderly and disreputable persons of both sexes; that the female singers and dancers therein are generally depraved and abandoned women, or are so regarded and understood to be, in said city and vicinity, and as such are shuimed and avoided by orderly and respectable people. III. That on or about the day of , 19 , the defendant, well knowing the premises, maliciously pub- lished of and concerning the plaintiff in its said newspaper the following false and defamatory matter: "... and is said to have been a concert hall singer and dancer at Coney Island." IV. That thereby the defendant meant, and intended to mean, that plaintiff was unchaste and had been an inmate of a resort for dissolute and unchaste persons, and was so understood by the readers of its said newspaper. V. That plaintiff has been injured in her reputation and good standing in said community, wherein she lives, to her damage dollars. Wherefore [etc., demand of judgment]. 1243. Libelous Charge made Against Public Officer. [From Hoey v. N. Y. Times Co., 138 App. Div. 149, 122 N. Y. Supp. 978.] I. That at the times hereinafter mentioned plaintiff was [and now is] a public officer, viz. [state what]. cepted usage, he must allege as a fact such meaning and so understood, the meaning which he attributes, and See Grant v. N. Y. Herald Co., 138 that the word was published with App. Div. 727, 123 N. Y. Supp. 449. 1372 Abbott's Forms of Pleading II. [As in paragraph I of Form 1237.] III. [7/ the article is susceptible of differing constructions, may allege its intended meaning, as:] That said article was intended to convey, and did convey to the community at large, the impression [state what, as:] that the plaintiff herein was guilty of malfeasance and misfeasance in office, and of conduct in direct variance with his oath of oflBce, and of connivance and illegal co-operation in a corrupt "league of police," with various criminals and disorderly persons, and that the plaintiff was an accessory to an alleged conspiracy between said police of the City of New York and said dis- orderly and criminal persons, and that the plaintiff in at- tempting "to strengthen the league of police" with said immoral and disorderly persons, had been guilty of acts equal in guilt with the sins and crimes of criminals of this city. IV. [Tf not charging a disgraceful act, directly:] That said article was calculated to, and did, hold plaintiff up to public scorn, hatred and ridicule, to his injury and damage in his reputation and good name, to his damage dollars. Wherefore [etc., demand for judgment]. 1244. The Same, for Libel Relating to a Profession or Trade; ^* by Physician. ^^ I. That at the times hereinafter mentioned [and for more ** This form, and the forms imme- ness or occupation, "which have a ten- diately following, are to be employed dency to hurt and are calculated to only when the words charged bear harm him therein, are actionable al- some relation to the plaintiff in his though they charge no fraud or dis- particular business or professional honesty and were published without capacity, or, in other words, touch him actual malice,^ See Hinrichs v. Butts, in his office, profession or trade, by 149 App. Div. 236, 133 N. Y. Supp. charging or imputing lack of skill or 769. See, as to words relating to a improper conduct therein. See Arm- professional man which have been strong V. Sun Printing, etc., Assoc, held so actionable, Borimiann v. Star 137 App. Div. 828, 122 N. Y. Supp. Co., 174 N. Y. 212, 219. 531. Words relating to a man's busi- If the published matter relate ^ To charge a physician with being Med. Assoc, v. Collier, 86 Misc. 217, a quack is libelous. See World's Disp. 148 N. Y. Supp. 405. Actions for Libel or Slander 1373 than years theretofore] the plaintiff was, and now is, a physician, regularly practicing as such, at , and was of good name, fame and credit as such. II. That on or about the day of , 19 , at , the defendant maliciously composed and pub- hshed concerning the plaintiff in his said profession," the following false and defamatory matter, viz. : [here set forth the libel verbatim, which must touch plaintiff in his pro- fession].^^ III. That the facts stated in said publication were wholly false; that by means of said publication the plaintiff was injured in his reputation, and in his good name and credit as a physician, and in his practice as such, to his damage dollars. ^^ Wherefore [etc., demand of judgment]. wholly to plaintiff's property and not to plaintiff individually, special dam- age must be alleged. Maglio v. N. Y. Herald Co., 93 App. Div. 546, 87 N. Y. Supp. 927. Plaintiff's trade or profession need be averred only in general terms, but is an essential fact to be shown. Stone V. Textile, etc., Assoc, 137 App. Div. 655, 122 N. Y. Supp. 460; Carroll v. Wright, 33 Barb. (N. Y.) 615; Ram- scar V. Gerry, 16 N. Y. State Rep. 789. One engaged in a mercantile business, and in a clerical capacity, may sue for such a species of libel. See Hinrichs V. Butts, 149 App. Div. 236, 133 N. Y. Supp. 769. See Form 1246. 27 Johnson v. Dithridge, 178 App. Div. 884. 28 Where the words used contain no imputation of general ignorance or want of skill, but merely a charge of professional ignorance or incapacity in a single transaction, it is held the action will not lie without proof of special damages. Twiggar v. Ossining Printing, etc, Co., 161 App. Div, 718, 146 N. Y. Suppi 529; Foot v. Brown, 8 Johns. (N. Y.) 64; Gunning «. Apple- ton, 58 How. Pr. (N. Y.) 471; Garr v. Selden, 6 Barb. (N. Y.) 416; Camp v. Martin, 23 Conn. 86. But a charge of gross ignorance, or a total want of skill, although referring to a single in- stance, also imputes general unskil- fuUness or general ignorance, and for that reason is actionable per se. Cruikshank v. Gordon, 118 N. Y. 178; see, also, Mattice v. Wilcox, 147 id. 624. If the charge is ambiguous in this respect, so that it is an arguable ques- tion whether it charges general inca- pacity or not, the complaint should be fortified by an allegation that de- fendant intended to charge general incapacity. See general note at the beginning of this chapter. If an issue is raised therein, it would be left to the jury to determine: See Lynde v. Johnson, 39 Hun, 16. 2' If any special pecuniary dam- age has resulted, allege as in Form 1253. 1374 Abbott's Forms of Pleading 1245. The Same, by an Attorney.'" I. That at the times hereinafter mentioned the plaintiff was, and still is, an attorney and counselor at law, duly admitted as such to practice his profession, and regularly engaged in the practice thereof at , in the State of , as such attorney and coimselor at law, in the courts of record in said State for more than years [and has always, as such attorney and counselor at law, con- ducted himself with honesty and fidelity, and has never been guilty, or suspected to have been guilty, of any misconduct or malpractice in his said profession of an attorney and counselor at law]. II. That on or about the day of , 19 , at , the defendant maliciously pubUshed [or, mali- ciously wrote, composed and caused to be pubhshed in a letter addressed and sent to one M. N., who was a client of plaintiff,'^ — and if in accordance with the fact, and also fur- nished to the public press] of and concerning plaintiff, and of and concerning him in his said capacity and profession of an attorney and counselor at law the following false and de- famatory matter: [set out the publication].^^ III. That the facts stated in said publication were wholly false, and the plaintiff has been and is greatly injured in his professional reputation and credit, to his damage dollars.'^ Wherefore [etc., demand of judgment]. '" See note 25 to For 1244, and ''^ A charge of inefficiency is action- also the general notes at beginning of able per se. Gibson v. Sun Printing & this chapter, and to Form 1237. Pub. Assoc, 71 App. Div. 566, 76 "This is a sufficient averment of N. Y. Supp. 197. publication. See McLaughlin v. The charge that a lawyer has been Schnellbacher, 65 111. App. 50, debarred. is actionable per se. Fim i>. from which this form is in part Hawes, 97 Misc. 30, 160 N. Y. Supp. adapted. ■ 1096. See note at beginning of this chap- " Allege any special damage as in ter. Form 1252. ^J Actions for Libel or Slander 1375 1246. The Same, by Merchant, or Manufacturer.'^ [From Kranz v. Dun, 8 N. Y. Civ. Pro. R. 403.] '^ I. That at the times hereinafter mentioned, and for more than years prior thereto, plaintiff was, and now is, engaged in a mercantile business at , as a dealer in [dry goods], and has heretofore had an established credit and a reputation for honesty and integrity. ^^ II. That on or about the day of , 19 , defendants maliciously and voluntarily made and caused to be published and distributed among the business community throughout the United States, and especially the firms of and , at the city of , and others with whom plaintiff had been dealing and with whom he had good credit, the following false and defamatory statement concerning plaintiff and concerning his said business [the libel — a mercantile report].^'' III. That the facts contained in said statement were '* See notes to Form 1244; also gen- eral notes at beginning of chapter, and to Form 1237. '* The plaintiff in this case was re- quired to give a bill of particulars, specifying the names and addresses of the persons or firms to whom he in- tended to prove that the statement was sent. '6 An action will lie by a corpora- tion or voluntary association, if the article affects its credit. Reporters' Assoc. V. Sun Printing, etc., Assoc, 186 N. Y. 437; Stone v. Textile, etc., Assoc, 137 App. Div. 655, 122 N. Y. Supp. 460; see, also, general note at beginning of this chapter, and notes to Form 1244. " A false charge of bankruptcy is libelous per se. Moore & Munger Co. V. Motor Trades Pub. Co., 170 App. Div. 779,155 N. Y. Supp. 929, aff'd 217 N. Y. 683 (even if the charge is of bankruptcy "several months ago"); Hynda v. Fourteenth St. Store, 159 App. Div. 766, 144 N. Y. Supp. 1030. If the article does not expressly charge bankruptcy or other libelous act or circumstance, plaintiff may allege the intent of the charge as a fact. See Form 1242, and notes. If the charge does not assail the character of the manufacturer or trader, but the quality of the goods he makes or sells, the article is not actionable per se unless it imports that he is guilty of deceit or malprac- tice in making or selling the goods; if it affects only the quality of the article, no cause of action arises unless special damages are alleged. Heh- meyer v. Harper's Weekly Corp., 170 App. Div. 459, 156 N. Y. Supp. 98. See Form 1253. If plaintiff is merely the seller of an article which is charged to be made of worthless ingredients, his knowledge thereof must also be charged to make the article actionable per se. Id. 1376 Abbott's Forms of Pleading wholly false; that by reason of the aforesaid publication plaintiff has been injured in his reputation, business and credit, to his damage dollars.^^ Wherefore [etc., demand of judgment]. 1247. The Same, by Partners.'" I. That at the times hereinafter mentioned the plaintiffs were [and still are] partners, engaged in business as merchants in buying and selling [dry goods] at , under the firm name of A. B. & Co., and were of good fame and credit as such firm. II. [As in Form 1237.] III. That the facts contained in said statement were wholly false; that by means of said publication the. said firm was injured in its reputation, and in its good name and credit, and in its said business, to plaintiff's damage ' dollars.^" Wherefore [etc., demand of judgment]. 1248. The Same, By Partners, where the Libel Contains no Reference to Plaintiffs by Name, or by Firm Name. [Sustained in Craig v. Pueblo Press Co. (Colo.), 37 Pac. Rep. 945.]" I. That plaintiff's are co-partners, doing business under '' To merely allege that a corpora- See notes to Form 1244, and also tion's or association's repulalion was the general notes at beginning of injured will not suflSce. Stone u. chapter and to Form 1237. Textile Assoc, supra. *° Allege any special damage as in For special damage, allege as in Form 1252. Form 1252. . *' This case illustrates the force of ^' Damages to the co-partnership the provision in the Codes of various must be recovered in a joint action States, that plaintiff need not allege brought by all the co-partners; dam- the extrinsic facts showing the ap- ages to the partners individually must plication of the libel to him, but be . recovered in separate actions may state generally that it was pub- brought by the individuals composing lished concerning him. See note the firm. Collier v. Postum Cereal at the beginning of this chapter. Co., 150 App. Div. 169, 134 N. Y. See notes to Forms 1244 and Supp. 847; Tobin v. Best Co., 120 1247. App. Div. 387, 105 N. Y. Supp. 294. Actions for Libel or Slander 1377 the name of A. B. & Co., and they are now, and have been for six months last past, engaged in the business of [making and selling tomales] in the city of , county of , and State of . t II. That on or about the day of , 19 , the plaintiffs were, and had been for some time immediately prior thereto, controlling, owning and doing all, or almost all, of said business then an^ there being done within the said city of ; that plaintiffs had by strict attention to business, honesty and fair dealing towards their customers built up said business until the daily receipts of said business amounted to the sum of dollars, and that the plain- tiffs are and from their youth have been of good fame and reputation among their neighbors for honesty and fair deal- ings, and are and ever have been free from the atrocious crime of selling diseased or vinwholesome articles of food, and never were suspected of that crime, but have always sup- ported themselves by honest and industrious attention to their said business and calling. III. Nevertheless, the defendant, not being ignorant of the premises, but fraudulently, maliciously and wickedly contriving to injure, blacken and defame the plaintiffs in their good reputation and injure them in their trade, expose them to the pains and penalties prescribed by law for selling diseased and unwholesome articles of food, did, on the day- aforesaid, in the city of , pubUsh through the col- umns of his newspaper, the ' Press, the following false, malicious and scandalous matter and words, of and concerning the plaintiffs, to wit: "That fellow over there is dishing out to a confiding and unsuspecting public, food rotten and poisonous as well" (meaning the plaintiffs in the business aforesaid, was selling rotten and poisonous food to the public, and that) "I" (meaning the defendant) "would not eat one of them for a 15.00 bill" (meaning one of these tomales sold by the plaintiff as aforesaid). "Let them once get cold, and you will soon find out how fresh they are" (meaning thereby that if said tomales get cold 1378 Abbott's Forms of Pleading before eating, you will find them stinking from being made out of rotten and unwholesome food). "I can produce evidence" (meaning that the defendant can produce evi- dence) "from seven men made sick by eating tomales" (meaning that seven men were made sick from eating to- males bought from the plaintiffs). IV. [As in paragraph III of preceding form.] Wherefore [etc., demand of judgment]. 1249. Words not Actionable per se, and where Extrinsic Facts are Necessary to Show the Publication Defama- tory. ^^ I. That at the times hereinafter mentioned defendant was, and now is, a domestic corporation, and as such is the owner and publisher of a newspaper called the ; that said newspaper is of general circulation in the city of and its vicinity. II. [Set forth the extrinsic facts which make the article de- famatory in its application.] ^^ III. That on or about the day of , 19 , the defendant, well knowing the premises, maliciously published of and concerning the plaintiff in its said news- paper the following false and defamatory matter: [quoting article verbatim]. IV. That thereby the defendant meant, and intended to mean, that [state the claimed defamatory meaning] and was so understood by the readers of its said newspapers. V. [Set forth pecuniary damage.] ** Wherefore [etc., demand of judgment]. "Such extrinsic facts are of the 177 id. 131; Phillipp Co. v. N. Y. substance of the charge and must Staats-Zeitung, 165 App. Div. 377, be alleged in direct and traversable 150 N. Y. Supp. 1044. form. To incorporate them in the See next form for another prec- complaint by way of innuendo only edent. is insufficient, and leaves the com- *' See the method used in Forms plaint demurrable. Van Heuaen v. 1240 and 1242, Argentean, 194 N. Y. 309; Mo- " The publisher of such a defama- Namara v. Goldan, 194 id. 315; tory article is liable only for the Con V. Sun Printing, etc., Absoo,, peouniary damages, and general aj- Actions fob Libel or Slander 1379 1250. The Same, Charge of Disgraceful Act.^° [Adapted from Caldwell v. Raymond, 2 Abb. Pr. (N. Y.) 193.] I. That at the times hereinafter mentioned the defendants were the proprietors of a certain newspaper published at and known as the II. That at said times the Miss M. N. hereinafter men- tioned was a pubUc prostitute and was then known by de- fendants and the pubhc generally to be such. III. That said defendants, intending and maliciously contriving to injure the said plaintiff in his good name, fame and credit, and to bring him into public scandal, in- famy and disgrace with and among his neighbors and other good and worthy citizens, and cause it to be suspected and believed by those neighbors and citizens that said plaintiff had been and was guilty of the offenses and misconduct hereinafter mentioned to have been committed by him, on the day of , 19 , falsely and mali- ciously composed and published and caused to be published in the said newspaper, of and concerning the said plaintiff, a false, scandalous, malicious and defamatory libel, con- taining among other things the false, scandalous, malicious and defamatory and libelous matter following, of and con- cerning the said plaintiff, that is to say, "Married, A. B." (said plaintiff meaning), "to Miss M. N., late of " (meaning the said public prostitute) . IV. That by such publication defendant maliciously intended to charge that said plaintiff had been guilty of marrying a prostitute and was understood by the public generally in the community as so intending and charging. V. [Allege special pecuniary damage resulting to plaintiff. See, post, Form 1252.] Wherefore [etc., demand of judgment]. legations of damage are insufficient. 179 N. Y. 27. See Form 1252, for O'Connell v. Press Pub. Co., 214 precedents for allegations of special N. Y. 352; McNamara v. Goldan, damages. supra; Crashley v. Press Pub, Co., « See notes to preceding form, 1380 Abbott's Forms of Pleading 1251. The Same, where the Statement of the Libel Shows it to be Qualifiedly Privileged/^ I. That on or about the day of , 19 , at the defendant maliciously composed and pub- lished of and concerning the plaintiff in a letter to one M. N., [copies whereof were furnished by defendant to the public press] *^ the following false and defamatory matter: "In response to your inquiry I will state A. B. was in our employ as my bookkeeper until ,19 , when he was dis- charged by me because he was dishonest and incompetent."^* II. That the statements contained in said pubUcation that plaintiff was dishonest and incompetent were and are false; ^' that they were known by defendant to be false when he made them, and were made by him with actual malice ^^ and with the wilful intent to injure plaintiff in his business and professional standing and in his reputation and good fame, and to prevent him from obtaining employment. III. That by reason of the said publication plaintiff has been greatly injured in his good name and reputation, and has been refused employment by divers persons, to wit [name them] " to plaintiff's damage dollars. Wherefore [etc., demand of judgment]. ■"■ Under such circumstances, malice See Gaffney v. Kelly, 175 App. Div. will be of the gist of 'the action, and 916. must be averred and proven by ^' Falsity of the accusation must plaintiff as a part of his prima facie be alleged. Ashcroft v. Hammond, case. Ashcroft v. Hammond, 197 supra. N. Y. 488; Mayer v. Chamberlain, * Malice is a pleadable fact and 178 App. Div. 326, 164 N. Y. Supp. may be directly charged, and when 808; Haft v. First Nat. Bank, 19 so charged destroys the apparent App. Div. 423, 46 N. Y. Supp. 481; privilege. Mellen v. Athens Hotel Viele V. Gray, 18 How. Pr. (N. Y.) Co., 153 App. Div. 891, 138 N. Y. 550, 10 Abb. Pr. 1. Supp. 451; Mayer v. Chamberlain, " Such a pubUcation destroys the supra. But if plaintiff plead other qualified privilege. Bingham v. Gay- facts from which malice can be in- nor, 203 N. Y. 27. f erred, the court will not strike them * If the plaintiff charges publica- out on motion as irrelevant, since tion generally, and the words quoted the defendant is not aggrieved do not of themselves show the privi- thereby. Younger v. DuflBe, 26 lege, defendant cannot present the Hun (N. Y.), 442. question of privilege by demurrer, " See Form 1252j and notes. Actions for Libel or Slander 1381 1252. Allegations Showing Special or Pecuniary Damage.^^ [Loss of ctistomers.Y^ That by reason of said publication the following named persons, firms and corporations can- celed contracts already made with plaintiff [names\; and the following customers declined and refused to further dedl *^ If the words are not libelous per se, special pecuniary damages must be alleged. Reporters' Assoc, v. Sun Printing, etc., Assoc, 186 N. Y. 437; Crashley v. Press Pub. Co., 179 id. 27; Bell u. Sun Printing & Pub. Assn., 3 Abb. N. C. (N. Y.) 157, s. c, 42 N. Y. Super. Ct. 567; Wal- lace V. Bennett, 1 Abb. N. C. 478; BasseU v. Elmore, 48 N. Y. 561; Pollard V. Lyon, 91 U. S. 225. Such special damage must be alleged with particularity, in order that defend- ant may be enabled to meet the charges, and if not so alleged the complaint is demurrable for insuf- ficiency. O'Connell v. Press Pub. Co., 214 N. Y. 352; Reporters' Assoc. V. Sun Printing, etc., Assoc, 186 N. Y. 437; King v. Same, 84 App. Div. 310, 82 N. Y. Supp. 787, aff'd 179 N. Y. 600. Allegations to the effect that by reason of the. libel plaintiff was sub- jected to insult and annoyancCi was arrested and confined a specified time, are not enough without a statement of the pecuniary loss thereby caused. Crashley v. Press Pub. Co., 179 N. Y. 27. Nor an allegation that plaintiff's' "business was damaged and 'greatly suffered irreparable loss'' without stating the amount. Id. To allege that the pubhcation of the alleged libel "prevented obtain- ing subscriptions to plaintiff's book and the sale 'of matter therein con- tained," is insufficient because it is not stated how or in what way he has been so prevented. Jockin v. Brassier, 114 App. Div. 177, 99 N. Y. Supp. 586; King v. Sun Print- ing, etc, Assoc, 84 App. Div. 310, 82 N. Y. Supp. 787, aff'd 179 N. Y. 600. Equity wiU not enjoin unjust and malicious criticisms of a manufac- tured article, which are not action- able at law because plaintiff cannot show special damage. Marlin Fire Arms Co. v. Shields, 171 N. Y. 384. If the words complained of are actionable per se, special damage must be alleged in order to be re- coverable. See note 11 to Form 1237. *' Injury to business is special dam- age. Le Masseur v. Storm, 62 App. Div. 150, 70 N. Y. Supp. 882. A general allegation of loss of cus- tomers or damage to business is in- sufficient to enable plaintiff to sho^ a particular injury. The names of the customers must be set forth. See Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, 150 N. Y. Supp. 464; cases cited in preceding note. To allege that clients refused to pay just claims due upon contract does not charge a legal consequence of a libel. Reporters' Assoc, v. Sun Printing, etc., Assoc, 186 N. Y. 437. "That persons have decUned and refused to further deal with plaintiff" is insufficient. Town Topics Pub. Co. V. Collier, 114 App. Div. 191, 99 N. Y. Supp. 575. "That plaintiff has been injured in his business financially" is insuf- ficient. Langdon v. Shearer, 43 App. Div. 607, 60 N. Y. Supp. 193. 1382 Abbott's Forms op Pleading with plaintiff [names]; in all to plaintiff's damage dollars. [Loss of credit.]^* That by reason of said publication, divers persons, viz.: [naming them], who theretofore had sold plaintiff goods on credit, refused to deliver plaintiff aiiy goods [including certain goods theretofore ordered but not then delivered] until paid for, to plaintiff's damage dollars. [Loss of employment.] ^'^ That by reason of said publica- tion, one M. N., in whose employment plaintiff then was, and who otherwise would have retained plaintiff, thereupon declined so to do and discharged plaintiff on the day of , 19 , and plaintiff has been unable to se- cure other employment from that time, to his damage dollars. [Refusal to employ.] '-'^ That prior to said publication, one M. N. was about to employ, and would have employed, the plaintiff as , but that, by reason of said publi- cation, afterwards, and before the commencement of this suit, refused to employ plaintiff, and plaintiff has been unable to secure other employment, to his damage dollars. [Loss of a marriage.] " That prior to the said publication one M. N. had promised to become the husband [or, wife] of plaintiff, and would have heretofore done so, but that, by reason of said publication, he [or, she] has refused so to do, to plaintiff's damage dollars. [Loss of value.] That by reason of said publication, plain- tiff's said hotel and appurtenances have depreciated in value to the amount of over dollars.''^ "Rembt v. Roehr Pub. Co., 71 323; Carter v. McDowell, Wright, App. Div. 459, 75 N. Y. Supp. 861; 100. Brown v. Smith, 13 C. B. 596; King ^ From Maglio v. N. Y. Herald V. Watts, 8 C. & P. 614. Co., 83 App. Div. 44, 82' N. Y. Supp. ** Martin v. Strong, 5 A. & E. 535. 549, where the libel referred to plain- ts Sterry v. Foreman, 2 C. & P. 592. tiff's hotel and not to plaintiff in- " Matthew v. Crass, Cro. Jac. dividually. AcTiON.s FOB Libel or Slander 1383 1263. Of the Quality of a Thing; Plaintiff the Manufac- tiirer, Dealer, or Owner.^^ I. That at the times hereinafter mentioned plaintiff was and now is the manufacturer of [state what]. II. That on or about the day of , 19 , at , defendant published of and concerning said [article] the following false and defamatory matter: [quote]. III. [// actual malice is believed to have actuated the publi- cation:] That defendant published said defamatory matter with actual malice and with wrongful and wilful intent to injure the sale and reputation thereof. IV. That said publication is wholly false [as defendant well knew when he made the same]; that said [article] so manufactured by plaintiff [negative the charges made of un- fitness, or bad quality, or otherwise]. V. [Allege special damage as in Form 1252.] Wherefore [etc., demand for judgment]. 1264. Libel by Code Signs, Imputing Dishonesty in Busi- ness, by Means of Circulating Black List. [Sustamed in Traynor v. Seiloff, 62 Minn. 420, 64 N. W. Rep. 915.] "« *' This form is appropriate whea defamatory meaning as well as an the publication attacks the article innocent one, according to the oc- or goods, and does not involve a casion, connection and circumstances charge of dishonesty or deception of using them; that the complaint or malpractice on the part of the sufficiently states how they were manufacturer or .dealer. If the used and received by the public, charge also involves his character, See Form 1242 and notes, as to alleg- it is actionable without special dam- ing extrinsic facts to show libelous age shown. See Form 1246, and meaning and intent, notes; Kennedy v. Press Pub. Co., To pubUsh that a judgment has 41 Hun (N. Y.), 422; Le Massena v. been recovered is, ia the case of a Storm, 62 App. Div. 150, 70 N. Y. mercantile agency, not libelous per Supp. 882; Marlin Arms Co. v. se, and special damages must be al- Shields, 171 N. Y. 384. leged and shown in order to entitle ''Held, that while the words pub- plaintiff to maintain the action, lished, standing alone and unex- Woodruff v. Bradstreet Co., 116 plained, are not libelous per se, yet N. Y. 217. they are reasonably susceptible of a 1384 Abbott's Forms of Pleading , I. That the defendant, during the times hereinafter men- tioned, was a merchant at Belle Plaine, State of , and a member of an association known as associa- tion of , which issued a written circular known as the "Black List"' or the "Dead Beat List," the heading of which was as follows: " Association of Special Reference List of Unsettled Claims in and for County." IL That on or about the day of , 19 , the defendant maliciously, and with intent to injure the credit and good name of the plaintiff, and knowing the same to be false, caused to be inserted and published of and con- cerning the plaintiff, in such list and circular, under such caption or heading, these words: "A. B., scmn, Belle Plaine, mdse., $4.00." " III. That the spelling of the name of the plaintiff was a mistake in the printing of the list; but it was the defendant's intention to insert therein the plaintiff's name, and the name of A. B. in such list was intended for the plaintiff, and was so understood by all the members of such association who re- ceived and read the list, and by other readers thereof. IV. That the purpose of the defendant in so publishing the name of the plaintiff was to brand him as a person who did not pay his debts, and to prevent him from obtaining credit, and to impute to him insolvency and dishonesty in his business dealings, and said circular was so understood by the persons who received it; that the plaintiff was not, and the defendant then knew the plaintiff was not, indebted to him or to any other person in any sum. V. That the list or circular was circulated by the associa- tion and the defendant publicly among business men in the county named, and in Belle Plaine, which was and is the plaintiff's residence. VI. That by reason of the premises plaintiff has been *' The fact that a statement is in had the key thereto. • Sunderlin v. cipher is immaterial if it is alleged Bradstreet, 46 N. Y. 188. that those to whom it is published Actions for Libel or Slander 1385 greatly injured in his good name and credit [also set up any matter of special damage. See Farm 1252], to his damage dollars. Wherefore [etc., demand of judgment]. 1265. Libel by Means of Published Portrait. [Adapted from Morrison v. Smith, 177 N. Y. 366.] [Allege the defendant's publication of any words accompany- ing the picture as in Form 1237; if the words refer to a person other than plaintiff, omit the allegation that they were published " of and concerning plaintiff."] ^^^ II. That accompanying the aforesaid words, and com- pleting the said article, and as a part thereof, defendant maUciously published a picture, which was a likeness of plaintiff, as the picture of [said M. N.]. III. That by reason of the premises plaintiff has been subjected to reproach, scandal and ridicule, to his damage dollars. Wherefore [etc., demand for judgment]. 1256. For Libel by Means Other Than Written Words.^^ I. That on the day of , 19 , at , "^ In Burkhardt v. Press Pub. Co., sign charged with the prefatory 130 App. Div. 22, 114 N. Y. Supp. matter. 451, the words referred to a person A cartoon may be of libelous other than plaintiff, accusing such character, but it is. for the jury to person of crime. determine its scope. See Russell A cartoon, charged to be intended v. Brooklyn Daily Eagle, 168 App. to represent plaintiff or wherein he Div. 121, 153 N. Y. Supp. 450. is included or referred to may be The fact that the statement was in determined by the jury to be libel(Jus. cipher is immaterial, if those to whom RusseU V. Brooklyn Daily Eagle, 168 it is published had the key. Sunder- App. Div. 121, 153 N. Y. Supp. 450. in v. Bradstreet, 46 N. Y. 188. See. ''If the sign is one evidently de- Kingsbury v. Bradstreet, 116 id. 211. famatory by a meaning universally The publication of the plaintiff's familiar, no averments and no in- portrait, though unaccompanied by nuendoes are requisite. If extrinsic any personal reference, will sustain facts are needed to show the sense the action if the intent of the ao- in w^hich the sign was used, these companying words is deemed libel- must be averred, and the proper ous. See Morrison v. Smith, 177 innuendoes employed to connect the N. Y. 366. See Form 1255 for prec- 1386 Abbott's Forms of Pleading the defendant, contriving to injure the plaintiff in his repu- tation, and to expose him to pubUc hatred, contempt and ridicule, did, in a public street of said known as street, and in front of the plaintiff's residence thereon, wrongfully and maliciously make, and cause to be made, an effigy or figure of a human being, and maliciously hung up the said effigy by the neck, in the presence of divers citizens of said , and left the same there and in the view of the neighbors of the plaintiff and of the pubUc, who thereafter saw the same. II. That said effigy was intended by the defendant to represent plaintiEf, and was so understood by the persons who saw it. [If any libelous placard be appended, continue:] III. That defendant placed upon said effigy a placard containing the following words, of and concerning the plaintiff [set forth the words, and if libelous only because of extrinsic facts, set forth the facts, as in preceding forms]. IV. That by reason of the premises, plaintiff has been injured in his reputation and standing in the community, to his damage doUars.^^ Wherefore [etc., demand of judgment]. 1257. Where the Libel was in a Foreign Language.®' I. [As in Form 1237, to*, continuing:] the following false and defamatory matter in the [ItaHan] laijguage, as follows: [here set forth the libel verbatim in the foreign language]. II. That the following is a correct translation of the said edent for a libel by means of a per- A complaint, which alleges that a trait. newspaper was published in the '* If any special damage has foreign language, at New York resulted, see Form 1252. City, and was extensively circulated '* Both the foreign words and a throughout the city and State and correct translation should be set read therein by a large number of forth; neither one is sufficient, people, is sufficient without specifi- Lettman v. Ritz, 3 Sandf. (N. Y.) cally alleging that its readers under- 734; Simonson v. Herald Co., 61 stood such foreign language. Peters Wise. 626; Pelzer v. Benish, 67 id. v. Morning Journal Assoc, 74 App. 291. Div. 305, 77 N. Y. Supp. 597. Actions for Libel or Slander 1387 defamatory matter, together with the application and mean- ing thereof: [here set forth the translation with any proper innuendoes]. [Continue as in preceding forms.] 1258. Specific Allegation of Publication in Defendant's Newspaper.*" I. [After alleging corporate capacity in a proper case]. That at the times hereinafter mentioned the defendant was the [editor,] pubUsher and proprietor ^'' [or either, as the case may be; or, the defendant W. X. was the editor, and the defendant Y. Z. was the pubUsher and proprietor] of The , a newspaper published at , and of general circulation in the State of , and elsewhere. II. That on the day of , 19 , the de- fendant maliciously composed and published concerning the plaintiff in said newspaper [or, if only the publisher is sued, maUciously published concerning the plaintiff in said news- paper; or, if both author and publisher are sued, the defendant W. X. maliciously composed for publication, and the de- fendant Y. Z. mahciously published in said newspaper],** [continue as in Form 1237, from the*]. 1269. Allegation that Defendant Instigated Publication.*^ [From Weston v. Weston, 83 App. Div. 520, 82 N. Y. Supp. 351.] " An action of libel may be main- without otherwise alleging that he tained against two or more defend- pubhshed it, or was concerned in ants, though the general rule is its publication. Hunt v. Bennett, otherwise as to slander. Words 19 N. Y. 173. uttered by one are not the words " This sufficiently charges both de- of another. But with respect to fendants with the publishing, in hbels, if one repeat and another legal contemplation. Baker v. Mc- write and a third approve what is Clellan, 21 N. Y. State Rep. 893; written, all are makers of the libel. 2 JST. Y. Supp. 315. Thomas v. Rumsey, 6 Johns. (N. Y.) See, also, as to when defendant is 26. responsible as publisher, Roberts v. '''It seems, that an allegation that Breckon, 31 App. Div. 431, 52 N. Y. the defendant was the proprietor of Supp. 638. the newspaper in which the alleged "It is not essential to allege any libel was published is suflBcient, more than that the defendant pub- 1388 Abbott's Foems of Pleading That at and on or about the day of , 19 , defendant spoke of and concerning the plaintiff, in the presence of reporters and representatives of various newspapers, for the purpose of having his utter- ances published therein and with the knowledge that the same would be so published, the following false and defam- atory matter: 1260. Allegation of Publication of Libel by a Corporation.™ That at the times hereinafter mentioned one M. N. was the [President] of the defendant corporation; that the libel- ous matter hereinafter set forth was written and published by said M. N. in his official capacity as such president of the defendant, that it was so written and published in rela- tion to the business of the defendant, and under authority conferred by it upon said M. N. so to do. 1261. The Same, by one of a Class Libeled." [Adapted from Street v. Johnson, 80 Wise. 445, 50 N. W. Rep. 395.] I. That on the day of , 19 , the de- fendant was the owner and proprietor of a newspaper pub- lished at and known as [state], and widely circulated in the State of and elsewhere. II. That on or about the day of , 19 , defendant published in his said newspaper, the following false, Ubelous and defamatory article, in the false, libelous and defamatory words set forth, and which were printed lished. See note on this point to The allegation as above set forth Form 1237. is adapted from the suggestions '" In my opinion it is better, under made by the court in Flanagan v. familiar and well-settled principles of McDermott Dairy Co., 132 App. pleading, to simply allege " that the Div. 166, 116 N. Y. Supp. 814. defendant published," etc., without " The legal effect of the pubUca- mentioning the particular agency, tion is the same as if the plaintiff See Kharas v. Collier, Inc., 171 had been the only one of the class App. Div. 388, 157 N. Y. Supp. referred to. Bornnjann v. Star Co., 410. 174 N. Y. 212. Actions for Libel or Slander 1389 and published of and concerning the plaintiff: "With a con- tracted fanaticism, which had done more in the past than the weakness or vices, so considered, of mankind, to retard christian progress and sobriety, the alleged ladies of the branch of the W. C. T. U. have been perambulating the streets of the city of , in a ineffectual attempt to prevent the Press from being purchased by the m- habitants of the city; that these alleged ladies, ignorantly no doubt, brazenly have lowered themselves to a level which they would or should blush, if they possessed the modesty which society women are presumed to possess, to see that level described in black type," [etc., setting forth the whole libel]. III. That plaintiff is and was at the time of the sale of such false and scandalous and defamatory words a member of the said branch of the W. C. T. U., and that she has been damaged thereby and on account of the sale of such false, scandalous and defamatory words, in the sum of dollars. Wherefore [etc., demand of judgment]. 1262. Allegation of Repetition, or Amplification, of the Charge, in Enhancement of Damages.^ ^ That prior to [or, subsequent to] the pubUcation of the defamatory matter hereinbefore set forth, and in or about the day of , 19 , defendant published of and concerning plaintiff the following additional matter [set it out]. " Repetitions of the charge may constituting one action. See Burkan be shown; a prior similar charge v. Musical Courier Co., 141 App. may be shown if an action thereon Div. 202, 125 N". Y. Supp. 1059, be barred by the statute. A prior and cases therein reviewed. See or subsequent article showing the also note to Form 1237, and cases application of the article counted cited. on as libelous, or amplifying or en- Where a series of articles all re- larging it, may be shown if properly late to one matter, like a single pleaded. Grant v. Herald Co., 42 official act, separate actions brought App. Div. 354, 59 N. Y. Supp. 84. thereon should be ordered consoli- But articles having no connection dated. Cohalan v. Press Pub. Co., with the one pleaded, and themselves 123 App. Div. 487, 107 N. Y. Supp. actionable, cannot be included as 962. 1390 Abbott's Forms of Pleading 1263. By Husband for Illness of Wife Caused by Publica- tion of Libel. [Sustained in Garrison v. Sun Printing, etc., Assoc, 207 N. Y. 1.] [Allege publication of article "of and concerning plaintiff's wife," as in Form 12S7.] " II. That the facts stated in said article were false; that because of such publication, and the mental anguish caused thereby, plaintiff's wife was made sick, and by reason of such sickness plaintiff was deprived of her services and society for weeks, and was necessarily obliged to spend the sum of dollars for medical attendance and nursing, to plaintiff's damage dollars. Wherefore [etc., demand for judgment]. n. SLANDERS* 1264. Words Slanderous per se; General Form. I. That on or about the day of , 19 , at ,'^ the defendant,'^ in the presence and hearing of " The article must have been 868. Defendant may require a bill libelous per se. Garrison v. Sun of particulars of the times and places, Printing, etc., Assoc, supra. In the and for the , purpose of preparing precedent the article was charged it plaintiff may examine defendant to have been "wickedly and'majici- before trial. Pring v. Thorp, 168 ously and intentionally and wiKully " App. Div. 887, 152 N. Y. Supp. 469. published, and the court comments Under a complaint charging that on the rule that an intentional wrong- on many occasions during doer will be held responsible for the years prior to the action, the defend- injuries caused even though they ant spoke words, which were set lie beyond the hmit of natural and forth, and contained an imputation apprehended results. of unchastity, plaintiff is entitled '* See general note at beginning to prove, as bearing on the degree of this chapter; also notes to general of malice, other slanderous state- form of complaint for Ubel (No. ments imputing the same charge, 1237), many of which are appli- but in different words. Enos v. cable to the complaint in slander. Enos, 135 N. Y. 609, 48 N. Y. State " Time and place should be set Rep. 392, 32 N. E. Rep. 123. forth. See Cerro de Pasco Co. v. ■" As a general rule, an action of Haggin, 106 App. Div. 401, 94 N. Y. slander will not lie against two per- Supp. 593; Rowe v. Washburne, sons; the speaking of the same words 62 App. Div. 131, 70 N. Y. Supp. at the same time and place, but by Actions for Libel or Slander 1391 one M. N. [or, of divers persons]," maliciously '^ spoke of and concerning the plaintiff™ the false and defamatory words two different persons, constitutes two distinct causes of action. But where the words are alleged to have been once uttered in pursuance of a conspiracy between two or more de- fendants, a single action for slander may be maintained; and where two slanders have been uttered in pur- suance of a common agreement between two parties that they should be uttered, each is jointly liable with the other for their utterance, and the separate causes of action may of course be joined under Code Civ. Pro., § 484. Green v. Davies, 182 N. Y. 499. A corporation may be hable for slander. In such an action it is proper and suflBcient to allege that the words were spoken by the de- fendant corporation. Kharas v. Collier, Inc., 171 App. Div. 388, 157 N. Y. Supp. 410; Fensky v. Maryland Cas. Co., 264 Mo. 154; Comerford v. West End St. R. Co., 164 Mass. 13, 5 Thomp. Corp., 2d ed., § 5441. " The complaint is not sufficient unless its allegations support the inference that the speaking of the words was in the presence and hearing of some person or persons, other than the plaintiff. Deddrick v. Mallery, 143 App. Div. 819, 127 N. Y. Supp. 1023; Anon., 3 How. Pr. (N. Y.) 406; Wood V. Gilchrist, 1 Code R. (N. Y.) 117. But plaintiff may amend at the trial, if defendant is not misled. Wood v. Gilchrist, supra. It has been held, however, that an averment that the words were ut- tered and published, imports an uttering in the presence and hearing of others, Duel v. Agan, 1 Code R. (N. Y.) 134. And a charge that they were spoken in the pres- ence of divers persons will suffi- ciently imply that they heard. Han- ning V. Bassett, 12 Bush (Ky.), 361. Plaintiff will be required to give a bill of particulars, naming at least one of the persons present on each occasion when defendant spoke the words. See Pring v. Thorp, 168 App. Div. 887, 152 N. Y. Supp. 469; Mason v. Clark, 75 App. Div. 460, 78 N. Y. Supp. 327; Rowe v. Wash- bume, 62 App. Div. 131, 70 N. Y. Supp. 868. Plaintiff may have an examination before trial of the de- fendant to enable him to prepare his bill of particulars. Pring v. Thorp, supra. The names of all the merchants to whom defendant spoke the slan- derous words, and who are charged to have refused to further deal with plaintiff, were required to be given in Kayata v. Ontra, 159 App. Div. 511, 144 N. Y. Supp. 475. ™ It is not necessary to allege mal- ice, where the words are slanderous per se, and are averred to have been spoken falsely. Harris v. Zanone, 92 Cal. 59, 28 Pac. Rep. 845. Even where the occasion, upon which the words for which an action of slander is brought were spoken, repels any presumption of malice, and proof of it is necessary to main- tain the action, it is sufficient to aver that they were spoken maliciously, without setting forth, in the com- plaint, the facts and circumstances which show the existence of malice. Viele V. Gray, 10 Abb. Pr. (N. Y.) 1, 18 How. Pr. 550. "By New York Code Civil Pro- cedure, § 535 (and by very general 1392 Abbott's Forms of Pleading following: [set out the words complained of as accurately as possible].^ II. That said statement was wholly false, and thereby the plaintiff was injured in his reputation, to his damage dollars.*' Wheeefore [etc., deniand of judgment]. 1265. The Same, Words Charging a Crime (Perjury).*^ I. That on or about the day of , 19 , enactment in all Code States), this averment supplies the place of all averments of extrinsic facts to show the application of the words charged to the plaintiff. See Harris v. Zanone, 92 Cal. 59, 28 Pac. Rep, 845. The averment is indispensable, and can- not be supplied by an innuendo. See general note at beginning of this chapter. *" The complaint must set forth the words of the slander. Crowell v. Schneider, 165 App. Div. 690, 151 N. y. Supp. 160; de Wolf v. Ford, 119 App. Div. 808, 104 N. Y. Supp. 876 (rev'd on other grounds, 193 N. Y. 398); Jjynde v. Johnson, 39 Hun (N. Y.), 12; Finnerty v. Barker, 7 N. Y. Leg. Obs. 316; Germ Proof Filter Co. v. Pasteur-Chamberland Filter Co., 81 Hun, 49, 62 N. Y. State Rep. 562, 30 N. Y. Supp. 584. To allege the words uttered, but then adding "or words of like mean- ing, purport and effect,'' makes the complaint demurrable. Drohan v. O'Brien, 76 App. Div. 265, 78 N. Y. Supp. 430. An averment in the complaint that defendant uttered "certain false and defamatory words and statements of the following tenor and import, and to the follow- ing effect, that is to say," is bad. Forsyth v. Edminston, 2 Abb. Pr. (N. Y.) 430. Where the complaint sets out lan- guage used on a single occasion, a part of which is slanderous and the rest is not, the latter portion will not be stricken out as irrelevant. Though it may not be necessary to allege in the complaint all that was said at the time, it is proper to do so. Deyo p. Brundage, 13 How. Pr. (N. Y.) 221; Root V. Lowndes, 6 HiU (N. Y.), 518. The words- set forth as constitut- ing the slander must be proven, in substance, at least, and different words, although imputing the same charge, but in entirely different language, will not support the com- plaint. Enos V. Enos, 135 N. Y. 609, 32 N. E. Rep. 123. Compare Miller v. Hohnes, 19 N. Y. Supp. 701. Each separate utterance gives rise to a separate cause of action, and should be so alleged. Cerro de Pasco Co. v: Haggin, 106 App. Div. 401, 94 N. Y. Supp. 593. " If special pecuniary damages have resulted from the slander, al- lege them as in Form 1252. '^ See Form 1239, supra, and notes. If the words used would naturally convey the impression to the hearers that plaintiff had committed perjury, it is not necessary for plaintiff to add reference to the judicial proceeding. Otherwise, however, it would be. Kern v. Towsley, 51 Barb. (N. Y.) 385. Actions for Libel or Slander 1393 at , in the presence and hearing of divers persons, the defendant falsely and maliciously spoke qf and con- cerning the plaintiff the false and maUcious words following: "You" (meaning the plaintiff) "perjured your- self." II. That by reason of the speaking of such words the plaintiff is greatly injured in his good name and reputation, to his damage dollars. Wherefore [etc., demand of. judgment]. 1266. The Same, Words Charging Crime (Perjury) in Such Manner as to Require Extrinsic Facts to be Set Forth.*' I. That prior to the times hereinafter mentioned, in an action pending in the Court, wherein one M. N. was pliaintiff and the defendant was defendant, this plaintiff was examined and gave evidence as a witness. II. That the defendant, intending to injure the plaintiff and to cause it to be believed that he had conunitted perjury, spoke in the presence and hearing of divers persons, on the day of , 19 , at , of and concern- ing the plaintiff, and concerning the testimony of the plaintiff as such witness aforesaid, the false and maU<;ious words fol- lowing: "He (meaning plaintiff) Ued against me (meaning plaintiff's evidence given in the said action) and I lost the suit" (meaning the action aforesaid). III. That thereby defendant intended and was understood by those persons who were present to charge plaintiff with the crime of perjury, in having willfully given false testimony at the trial of said action. IV. That by reason thereof, plaintiff has been injured in his good name and credit, to his damage dollars. Wherefore [etc., demand of judgment]. «3 See notes to Forms 1239, 1240 Cooa v. Robinson, 3 Barb. (N. Y). and 1265. See, also, Linehan v. 625; Jacobs v. Tyler, 3 Hill (N. Y.), Nelson, 197 N. Y. 482; Walrath v. 572. Nellis, 17 How. Pr. (N. Y.) 72; 1394 Abbott's Forms of Pleading 1267. The Same, Words are Not Free from Ambiguity; Charging Defendant's Intent in Using.^* [From Karger v. Rich, 81 Wis. 177, 51 N. W. Rep. 424.] ^^ I. That at the times hereinafter stated, plaintiff was in the defendant's employ as [state capacity]. II. That on or about the day of , 19 , plaintiff had been intrusted with a quantity of postage stamps, to stamp certain letters written in the defendant's business; that there were nine letters for which no stamps had been provided; that the defendant, on being informed of the fact, approached the plaintiff in a threatening manner, and willfully and maliciously, in the presence and hearing of the defendant's foreman and others, spoke to and of and concerning the plaintiff the following false and defamatory words: "You (meaning the plaintiff) have them (meaning the nine postage stamps), and if you (meaning the plaintiff) do not give them up (meaning the nine postage stamps) to me, I (meaning the defendant) will have you (meaning the plaintiff) locked up" (meaning that he would have the plaintiff arrested and imprisoned as a thief) ; that the defend- ant then and there caught hold of the plaintiff and searched him against his will. III. That the defendant thereby intended to charge, and did charge, plaintiff with having stolen the nine postage stamps belonging to the defendant, and that the words so spoken were so understood by those who heard them. IV. That plaintiff did not have the said postage stamps, as the defendant well knew or ought to have known; that by '* It is necessary, either by direct to determine in what sense they were allegation or innuendo, to charge understood. Warner v. Southall, the actionable intent with which the 165 N. Y. 496. words were used. Gillespie v. Byrne, '* Held, that it was sufficiently 151 App. Div. 703, 136 N. Y. Supp. charged from the facts alleged, by 207. See also Forms 1240 and 1266 way of inducement, and from the and 1268, and notes. If the words innuendoes, that the words were are ambiguous and capable of two used in a sense that would make them constructions, one imputing crime, actionable per ae. and the other not, it is for the jury Actions for Libel or Slander 1395 reason of the premises plaintiff has been damaged in the sum of dollars.^^ Wherefore [etc., demand of judgment]. 1268. The Same, Another Form; Charge that Plaintiff was an Anarchist. [Sustained in Von Gerichten v. Seitz, 94 App. Div. 130, 87 N. Y. Supp. 968.] '' I. That at the City of , and on or about the day of , in the presence of divers persons defendant spoke of and concerning plaintiff the following false and defamatory words: "You (meaning plaintiff) are an anarchist." II. That thereby defendant intended to charge, and did in fact charge, and was understood by the persons who heard the words to charge, that plaintiff was a believer and advocate of the principles of anarchy, that he believed in and advocated the absence of government, the overturn by violence of all constituted forms and institutions of society and government and all law and order and all rights of prop- erty, with no purpose of establishing any other system of order in the place of that destroyed, and that plaintiff was a person who advocated, promoted and excited revolt against estabUshed rule, law and control, and was a believer in and an advocate of a state of society in which there is no capable supreme power, to prevent social and political confusion. III. That plaintiff has been greatly injured in his good name and reputation, to his damage dollars.*^ 1269. The Same, Where the Words Refer to Plaintiff in His Profession or Occupation.*^ [Adapted from Fitzgerald v. Geils, 84 Hun, 295, 32 N. Y. Supp. 306, 65 N. Y. State Rep. 541.] ^ Allege any special pecuniary felony and was actionable without damage suffered as in Fonn 1262. special damages. «' Held, that the charge was ca- ««Any special damage must be pable of the construction placed upon alleged; see Form 1252. it by plaintiff, and that as so con- ^'A charge of incompetency, or strued it charged plaintiff with a any other injurious imputation, made 1396 Abbott's Forms of Pleading I. That at all the times hereinafter mentioned, plaintiff was and now is a physician, regularly engaged in the practice of his profession, at .'" II. That on or about the day of , 19 [or, at divers times between the day of , 19 , and the day of , 19 ], at , the defendant, in the presence and hearing of divers persons, maHciously spoke concerning plaintiff and concerning plain- tiff in his occupation, and plaintiff's character as a physi- cian," the false and defamatory words following: "He (mean- ing this plaintiff) did attend in my family, but I had him for M., and he nearly killed her; if I hadn't let him go he would have killed her; I wouldn't have him for a dog; he is no good." '- III. That thereby plaintiff has been injured in his pro- fessional reputation, to his damage dollars.^' Wherefore [etc., demand of judgment]. the words were spoken ooncemirig plaintiff in his occupation. Lynott V. Pearson, 138 App. Div. 306, 122 N. Y. Supp. 986; Carroll v. White; 33 Barb. (N. Y.) 615; Van Epps v. Jones, 50 Ga. 238; Barnes v. Trundy, 31 Me. 321. But if that fact is evi- dent from the face of the complaint, an omission to ao aver is not fatal. Crandall v. Jacob, 22 App. Div. 400, 48 N. Y. Supp. 279; Fitzgerald v. Geils, 84 Hun, 295, 32 N. Y. Supp. 306, 65 N. Y. State Rep. 541. "^ Held, that these words, in part at least, related to the plaintiff's general competency and fitness to practice as a physician, and were ac- tionable per se. Fitzgerald v. Geils, supra. And see Cruikshank c. Gor- don, 118 N. Y. 178. Statements disparaging the treatment of a par- ticular case may be actionable only on proof of special damage. See notes to Form 1244. *' Allege any special damage as in Form 1252, and Form 1270. maliciously in respect to plaintiff's occupation, which, if true, would render him unworthy of employ- ment, is actionable per se, and special damages need not be alleged nor proven. Crandall v. Jacob, 22 App. Div. 400, 48 N. Y. Supp. 279; Cruikshank v. Gordon, 118 N. Y. 178; Fitzgerald v. Geils, supra. And see notes to Form 1244. ™ If the words are actionable only because spoken of plaintiff in his business or profession, the complaint must allege it as of the time when the words were spoken. Cassovoy t>. Pattison, 93 App. Div. 370, 87 N. Y. Supp. 658; Carroll v. White, 33 Barb. (N. Y.) 615. It is unnecessary to allege plaintiff was licensed, although such fact is necessary to enable him to lawfully practice his profession. The legal presumption is that he has complied with the provisions of the statute. Fry V. Bennett, 28 N. Y. 324. " The complaint should aver that Actions for Libel or Sl-vncjer 1397 1270. The Same, Another Form; Words Charging Dis- honesty in Business." I. That at the time of the commission of the grievances heremafter mentioned, the plaintiff was engaged in business as a merchant [or otherwise], and had always maintained a good reputation and credit as such merchant, and other- wise. II. That on or about the day of , 1.9 , at , the defendant, in the presence and hearing of a number of persons, maUciously, and with intent to cause it to be believed that the plaintiff kept false and fraudulent books of account in his said business, spoke concerning this plaintiff the false and defamatory words following, to wit: "He keeps false accounts and I can prove it," ^^ [or otherwise state the words complained of]. III. That by reason thereof [name the persons referred to],^^ who had theretofore been accustomed to deal with the plaintiff in his business aforesaid, ceased to deal with him, and the plaintiff was thereby deprived of their custom and of the profits which he would otherwise have made by a continuance of such dealing,^^ and was otherwise injured in his good name and reputation, to his damage dollars. Wherefore [etc., demand of judgment]. " An oral accusation of dishonesty derous words, whereby the plaintiff is not actionable unless it relates to lost customers in his trade, the plain- plaintiff in connection with his oc- tiff must name in the complaint the cupation or business, or causes customers lost. If he fails to do so, special damage. Cassavoy v. Pat- and the action will not lie without teson, 93 App. Div. 370, 87 N. Y. special damage, the complaint is Supp. 678. insufficient. Reporters' Assoc, v. '*That an action lies for words Sun Printing & Pub. Assoc, 186 to this effect under the averments N. Y. 437, and cases cited; see, also, in the above complaint, see Burtch notes on this subject to Forms 1237 V. Nickerson, 17 Johns. (N. Y.) and 1252. 217; Backus v. Richardson, 5 id. "For other precedents averrmg 476. special damage in actions of libel and ^ In an action to recover for slan- slander, see Form 1252. 1398 Abbott's Foems of Pleading 1271. The Same, Charge of Unchastity to a Woman.'* [Sustained in Mason w. Stratton, 17 N. Y. State Rep. 302.] s^ I. That at the time of the uttering of the slanderous words, as hereinafter alleged, the plaintiff was, and now is, a married woman, living and cohabiting with her husband, C. B.; that she has always been a chaste woman, and has been ever faithful and true to her said husband and to her marriage vows and obhgations. II. That M. N., hereinafter mentioned, was, at said time, a married man and not in any way related to plaintiff. III. That in the months of , 19 , on divers different days and in divers different places in the city of ji"" the defendant, contriving and maUciously in- tending to injure the plaintiff in her good name, fame and credit, and to bring her into pubUc sciandal, infamy and dis- grace with and amongst her neighbors, and to cause it to be suspected by those neighbors and citizens that plaintiff had been guilty of unfaithfulness to her said husband, and of improper intimacy with said M. N., did falsely and maU- ciously speak and declare of and concerning the plaintiff, in the presence and hearing of divers persons, the false, scandalous and defamatory words following, that is to say: [set forth exact words, as:] "Some day in the third week of Jime last, I came into this store (the store of plaintiff's husband meaning) at the north door and I saw M. N. (said M. N. meaning) having both arms around Mrs. B. (this plaintiff meaning) , embracing her. They were alone when I went in. The curtains were drawn in the front part of the store, and they were down qiiite early every day on accoimt °* This form is under New York ^' See, also, Morse v. Press Pub. Code Civ. Pro., § 1906, which makes Co., 49 App. Div. 375, 63 N. Y. this charge actionable per se. At Supp. 423. common law, it is necessary for ™ PlaintiflE may be required to plaintiff to allege and prove special give a bill of particulars of the times damage; under the Code it is not and places. See Form 1264. necessary. Mason v, Stratton, supra, Actions for Libel or Slander 1399 of the sun. They (said plaintiff and said M. N. meaning) seemed confused and blushed" [ete.].'" IV. That said statements so made as aforesaid by defend- ' ant were false and untrue, and were made by the defendant maliciously, and with the intent and for the purpose of hnputing unchastity to plaintiff, ^"^ and were so imderstood by the persons who heard them.^"' V. That by reason of the uttering of the words aforesaid, plaintiff has been greatly injured in her good name, fame and credit, to her damage dollars."* Wherefore [etc., demand of judgment], 1272. Words Spoken Ironically."^ [Set forth the exact words spoken, as in preceding forms, continuing:] That the defendant spoke said words ironically, and thereby meant and intended to be understood as meaning, and was understood by the persons present to mean, that [the plaintiff was not an honest lawyer, but was dishonest in his said profession and unworthy of employment as such — or, otherwise, according to tenor of words], [Set forth special damage if necessary to the action, or if recovery is sought therefor.] Wherefore [etc., demand of judgment]. i»iThe court held, on demurrer, N. Y. 530, 53 N. Y. State Rep. that the words were fairly susceptible 94. of the intent specifically alleged. i"* Allege any special damage; see 102 Where, as now in New York, Form 1252. adultery is a crime, the appUcation i"' In pleading upon words that of a provision such as that contained have been spoken ironically, or used in Code Civ. Pro., § 1906 (supra), ambiguously or insinuatingly, it is would seem limited to the alleged necessary to aver that the defendant, meretricious relations of two un- by means of the words so used, meant married persons. to be understood by the hearers, and 1"' Such an allegation of intent was understood by them, as charging must be included where the words plaintiff with the crime imputed or uttered are not such as necessarily the misconduct. Walrath v. Nellis, and as matter of law, charge unchas- 17 How. Pr. (N. Y.) 72; Gibson v. tity. See Hemmens v. Nelson, 138 Williams, 4 Wend. (N. Y.) 320. 1400 Abbott's Forms of Pleading 1273. Words Spoken in a Foreign Language.'"* I. That on or about the day of , 19 , at , the defendant, in the presence and hearing of divers persons who understood the [German] language, falsely and maUciously spoke concerning the plaintiff the following words in the said [German] language [set out the words in the foreign langiuige]; that said words meant and were understood by said persons to mean [set out correct translation of the words into English] ; that the said [German] language was understood by the said persons in whose presence and hearing they were spoken. '"'^ II. That the said statement was false and defamatory, and that by reason of the speaking thereof as aforesaid, the plain- tiff has been injm-ed in his reputation, to his damage dollars. Wherefore [etc., demand of judgment]. 1274. Slander of Title to Realty. '"^ [Adapted from Felt v. Germania Life Ins. Co., 149 App. Div. 14, 133 N. Y. Supp. 519; Dodge v. Colby, 108 N. Y. 445.] I. That at all the times hereinafter mentioned plaintiff was [and now is] the owner in fee of the following described premises, situated in the city of , county of , and State of , viz.: [give brief description]. 106 Where the slanderous words to be understood by the hearers and were spoken in a foreign tongue, in a meaning to be actionable. Harris they should be set out in the com- o. Zanone, 92 Cal. 59, 28 Pac. Rep. plaint in the original language, and 845. Where spoken in a foreign the complaint should aver their language it should be alleged that meaning in English. The com- the hearers understood the language plaint is, however, amendable in used. Kiene v. Ruff, 1 Iowa, 482; this respect. Keenholtz v. Becker, Palmer v. Harris, 60 Pa. St. 156. 3 Den. (N. Y.) 346; Wei-mouth v. See, also, Form 1257. Cramer, 3 Wend. (N. Y.) 395; Lett- "» Special damage must always be man v. Ritz, 3 Sandf. (N. Y.) 734. shown. Felt v. Germ. Life Ina. Co., And compare Bower v. Deideker, 38 supra; Andrew v. Deshler, 43 N. J. la. 418. L. 16; Kendall v. Stone, 5 N. Y. 14; >»' Where the words used are ac- Like v. McKinstry, 3 Abb. Ct. App. tionable per se, and spoken in the Dec. 62; Paul v. Halferty, 63 Pa St.. EngUsh language, they are presumed 46. Actions for Libel or Slander 1401 H. That on or about the day of , 19 , ^^ > the defendant, in the presence and hearing of divers persons, and particularly in the presence of one M. N. who, as defendant well knew, was a correspondent or re- porter for the newspaper pubhshed at said city, spoke the following false and defamatory matter concerning the plaintiff and the plaintiff's ownership of said property [set forth the statement, as in slander of the person]. III. That defendant intended said statement to be, and the same was, widely circulated and published, at defend- ant's instigation, in various forms in many newspapers in said State, and has thereby become known to large numbers of persons wishing to purchase from plaintiff portions of said lands and the timber thereon; ^"^ that the said statement, as so published in the newspapers, is as follows: [copy]. rV. That the statements and assertions hereinbefore men- tioned, in so far as they represent, either directly or in- directly, and in whatever language, that the plaintiff was not the owner of or interested in the said lands, or that the de- fendant, and those for whom he alleges he is acting, did own the same, were false and defamatory, and were made and caused to be circulated and 'published by the defendant and by his agents mahciously "" and with the intent to injure the plaintiff and his title to the said lands. V. [Allege special damage,^^^ as:] That E. F. and G. H.,"= ""Plaintiff shows no cause of ao- mann Co., 88 Misc. 266, 151 N. Y. tion if he alleges a contract of pur- Supp. 813, aff'd 168 App. Div. 930, chase entered into by the"- vendee, the court sustained a demurrer to and subsequently broken, for he a complaint charging defendant with might have enforced performance. claiming patent rights which plain Felt V. Germ. Life Ins. Co., 149 App. tiff's machines were infringing, but Div. 14, 133 N. Y. Supp. 519. alleging no special damage other "° Malice is of the gist of the ac- than the withdrawal of a customer tion. Dodge v. Colby, 108 N. Y. from an enforceable contract of pur- 445, 37 Hun, 515; Hovey v. Rubber chase. Tip Pencil Co., 57 N. Y. 119. The >'■' The names of the persons who words may be either spoken or writ- refused to buy, or loan, must be ten. Wilsonw. Dubois, 35 Minn. 471. given. Bailey v. Dean, 5 Barb. '"In Withemann Bros. v. Witte- (N. Y.) 297; Linden v. Graham, 1 1402 Abbott's Forms of Pleading among others, were ready and willing to purchase, and would have purchased', acres of said lands and timber, of plaintiff, and would have paid plaintiff the sum of dollars per acre therefor; that by reason of the aforesaid statements plaintiff has been prevented from consummating said sales, and cannot sell said lands for more than dollars per acre, to his damage dollars. Wherefore [etc., demand of judgment]. 1275. Slander of Title to Personalty."' [Adapted from Wittemann Bros. v. Wittemaim Co., 88 Misc. 266, 151 N. Y. Supp. 813; i" Snow v. Judson, 38 Barb. (N. Y.) 210.] I. That the plaintiff, at the times hereinafter mentioned, and for more than years continuously theretofore, was [and now is] engaged at the city of , in the [manufacture of governors for steam engines]. II. That on or about the day of , 19 , the defendant, wrongfully and maliciously, and with intent to injure plaintiff and destroy his said business, pubUshed of and concerning plaintiff in relation to his said business, and concerning the articles manufactured by him, in the news- paper published at , the following false and de- famatory matter: [set it out verbatim, as] "The public are warned not to purchase the governors made by A. B., as they infringe my Letters Patent No. , and I shall prosecute all those persons having them in their possession" (thereby meaning that no person could buy the governors made by plaintiff, or use them, without subjecting himself to a lawsuit which defendant would bring). III. That the governors which plaintiff manufactures do not infringe the aforesaid letters patent, or any other letters patent, belonging to defendant; that defendant knew that Duer (N. Y.), 670. See Form 1252, Ward, 13 Ala. 310; Malachy v. and notes. Soper, 3 Bing. N. C. 371. '" The action lies as to personalty. '" Aff'd 168 App. Div. 930. Townshend, Libel & S., § 206; Hill v. Actions for Libel or Slander 1403 they were not an infringetnent [or, that defendant had no reasonable or probable cause for making said statement] "" but falsely, willfully and maliciously caused said statement to be pubUshed with intent to prevent the sales thereof. ^'^ IV. That by reason of the premises, plaintiff has been unable to sell his said articles to E. F., G. H. [name all others],^^'' who would otherwise have bought them, and his business, which theretofore had given him a profit of dollars per month, has been entirely destroyed, to his damage dollars. Wherefore [etc., demand of judgment]. "* The action will lie if the asser- that defendant knew the falsity of tion be made without probable the statement, and made it mali- cause. Western, etc., Co. v. Lawes, ciously. etc., Co., L. R., 9 Ex. 218. Some "' A State court may entertain cases hold that an averment of want this action although it may involve of probable cause should be included. the question of an- infringement of a Bailey v. Dean, 5 Barb. (N. Y.) 297; patent. Wittemann Bros. v. Witte- Stark V. Chetwood, 5 Kan. 141. mann Co., supra. But it is plainly unnecessary if plain- '" See notes to Form 1262. tiff is prepared to allege and prove CHAPTER XLVr COMPLAINTS IN OTHER ACTIONS INVOLVING AN INVASION OF PERSONAL RIGHTS I. Abuse of legal phocbss. page 1276. Issuing execution upon a judgment which has been paid . . . 1404 1277. Causing plaintiff's arrest on criminal charge, to compel settlement of debt 1406 II. Alienation op affections, or enticement. 1278. For enticing away plaintiff's wife 1407 1279. For enticing away plaintiff's husband 1408 III. Criminal conversation. 1280. With plaintiff's wife 1410 IV. Seduction. 1281. For seduction of plaintiff's daughter or servant 1411 1282. By minor under the age of consent 1413 V. Other miscellaneous injuries. 1283. For maliciously causing plaintiff's discharge from employ- ment 1413 1284. For enticing away plaintiff's employees 1414 1285. For wrongful sale of drug to minor 1416 1286. For ejection from public resort ] 416 I. ABUSE OF LEGAL PROCESS ' 1276. Issuing Execution Upon a Judgment Which Has Been Paid.^ I. That heretofore, and on or about the day of ' The distinction between an ac- and ulterior purpose distinct from tion for malicious prosecution and the ostensible relief sought. See one for abuse of legal process, seems. Assets Coll. Co. v. Myers, 167 App. briefly stated, that in the action for Div. 133, 152 N. Y. Supp. 930; abuse of legal process the plaintiff Bianchi v. Leon, 138 App. Div. 215, shows that the defendant's act in 122 N. Y. Supp. 1004; Paul v. Fargo, the use of the process was an improper 84 App. Div. 9, 82 N. Y. Supp. 369; one, and was in aid of his purpose Sneeden v. Harris, 109 No. Car. 349, to compel plaintiff to do a collateral 13 S. E. Rep. 920. See, also, note 3. thing, or to accomplish an unlawful ^ Adapted from Brown v. Feeter, 7 1404 Miscellaneous Injuries to Personal Rights 1405 , 19 , the defendant recovered judgment against plaintiff in the Court, for the sum of dol- lars, which said judgment plaintiff, on or about the day of , 19 , fully paid and satisfied to the defend- ant. II. That thereafter, and or about the day of ,19 , the defendant, well knowing the premises, and without probable cause,' but wrongfully and maliciously* intending to injure plaintiff, wrongfully and maliciously caused an execution to be issued out of said court upon said judgment, directed to the sheriff of the county of .^ Wend. (N. Y.) 302, where judgment for plaintiff was sustained. It is said in Foy v. Barry, 87 App. Div. 291, 84 N. Y. Supp. 335, that the gravamen of the action is the using of the process for a purpose not justified by law, and to effect an object not within its scope. In that view the issuance of an execution on a satisfied judgment seems within the action. In Main Elec. Co. v. Cohen, 72 Misc. 30, 129 N. Y. Supp. 66, the court sustained a complaint against demurrer which charged an attorney with having obtained a judgment on a false return of service of a sum- mons, and having caused a levy to be made on plaintiff's property; the attorney's client was also made a party defendant, and the complaint held to state a cause of action against him. ' The distinction between an ac- tion for abuse of legal process and an action for malicious prosecution is said to be that the former lies for the improper use of process after it has been issued, not for maliciously causing the process to issue. 1 Ruling Case Law, p. 102, and cases cited; Assets Coll. Co. v. Myers, supra. An allegation of want of probable cause, as well as a showing of the tennination of the prosecution, is not essential if the action be sustained as one for the abuse of process, but may bear on the question of malice and aggravation of damage; and if the facts stated do not show an abuse of process but process ma- liciously issued, the presence of these allegations will save the complaint from being held defective. Assets Coll. Co. V. Myers, supra. See, also, Risser v. Liberman Bros., 102 App. Div. 482, 92 N. Y. Supp. 942. * Held, in Brown v. Feeter, supra; unnecessary to allege or prove malice; but even if so considered, the question of malice may be per- tinent on the measure of damages. * A mere statement that legal proceedings and an arrest, set forth in the complaint, were an abuse of legal process is insufficient. McClerg V. Vielee, 116 App. Div. 731, 102 N. Y. Supp. 46. The complaint is sufficient if it aver facts from which the inference of wrongful and mali- cious use arises, and in such case an allegation of wrongful and inten- tional misuse is not necessary. Fox v. Barry, 87 App. Div. 291, 84 N. Y. Supp. 335. 1406 Abbott's Forms of Pleading III. That thereupon the said sheriff, acting under and by virtue of said execution, levied upon and seized certain chattels of the plaintiff, viz. [describing them], of the value of dollars. IV. That by reason of the premises plaintiff has been wrongfully deprived of his property, and has been damaged dollars.^ Wherefore [etc., demand of judgment]. 1277. Causing Plaintiff's Arrest on Criminal Charge, to Compel Settlement of Debt.^ I. That heretofore, and on or about the day of ,19 , at defendant demanded of plaintiff that he pay to defendant the sum of dollars, and then and there claimed that said sum was due and payable to him by plaintiff [for moneys received by plaintiff as de- fendant's agent; or, otherwise]; that such claim was wholly false and fictitious, and defendant well knew that plaintiff was indebted to him in no sum whatever.* II. That thereupon, and on said day, the defendant pro- cured the arrest of plaintiff upon a charge of embezzlement; that said arrest was procured by defendant maliciously, and in bad faith and without probable cause,' and with the purpose of compelling plaintiff through fear and the duress of imprisonment to pay and satisfy said false and fictitious claim. [III. That on or about the day of , 19 , plaintiff was tried in the Court upon said charge, and acquitted thereof and discharged.] '" ' It is not necessary to allege or (N. Y.), 263, and Hazard v. Harding, prove that the proceeding complained 63 How. Pr. (N. Y.) 326. of has terminated, or that the process ' Whether or not the claim was improperly employed is at an end. well founded, this action would lie Dishaw v. Wadleigh, 16 App. Div. if the wrongful intent to use the 205, 44 N. Y. Supp. 207; Sneedon v. criminal process was established. Harris, supra. ' It was held in Hazard v. Harding, ' Adapted from Fox v. Barry, 87 supra, that no averment of want of App. Div. 291, 84 N. Y. Supp. 335; probable cause was necessary. Bebinger v. Sweet, 1 Abb. New Cases '" It is unnecessary to allege or Miscellaneous Injuries to Personal Rights 1407 IV. That plaintiff was confined under said charge days, and suffered great distress of mind and body, and was compelled to and did spend the sum of dollars in the employment of counsel and securing witnesses, to plain- tiff's damage dollars. Wherefore [etc., demand of judgment]. II. ALIENATION OF AFFECTIONS, OR ENTICE- MENT " 1278. For Enticing Away Plaintiff's Wife.i^ I. That M. N. is, and at the times hereinafter mentioned was, the wife of the plaintiff. II. That for a period of and until about the month of , 19 , the plaintiff was living and cohabiting with and supporting said M. N. at , and they were living together happily as man and wife; that at said time the defendant," well knowing said M. N. to be the wife of the plaintiff, and wrongfully contriving and maliciously and wickedly intending to injure the plaintiff," and to wrong- prove the termination of the action, in pursuance of a common plan. De or proceeding. Bebinger v. Sweet, Ronde v. Bell, supra. supra; Sneeden v. Harris, 109 Nor. Plaintiff is under the burden of Car. 349, 13 S. E. Rep. 920. showing affection on the wife's part, 11 The distinction between this ac- which could be alienated. See Hol- tion, and the action for crim. con. lister v. Valentine, 69 App. Div. 582, is well stated in Levy v. Harris, 75 N. Y. Supp. 115. Where de- 29 App. Div. 453, 51 N. Y. Supp. fendant pleads as a partial defense 964. that plaintiff's cruel treatment has 1^ Adapted from Hanor v. Housel, alienated the wife's affections, he is 128 App. Div. 801, 113 N. Y. Supp. entitled to prove it. Millspaugh v. 163; Weston v. Weston, 86 App. Potter, 62 App. Div. 621, 71 N. Y. Div. 159, 83 N. Y. Supp. 628; De Supp. 134. Ronde v. Bell, 116 App. Div. 191, " The wrongful intent is material, 101 N. Y. Supp. 497. and should be alleged. Ellsworth v. " If two or more are jointly con- Shimer, 71 Misc. 576, 128 N. Y. cemed in the wrongful act, it is not Supp. 883; Loper v. Askin, 178 App. necessary to specifically allege a Div. 163, 164 N. Y. Supp. 1036; conspiracy, although plaintiff is under Webber v. Benbow, 211 Mass. 366; the necessity of establishing on the Hutcheson v. Peck, 5 Johns. (N. Y.) trial that the wrong was committed 196. 1408 Abbott's Forms of Pleading fully deprive him of the affections, comfort, society and aid of plaintiff's wife, maliciously planned and undertook to alienate the affections of plaintiflf' s wife and to accomplish his purpose has acquired an improper influence over her, and [has debauched and carnally known her '^ and] has en- ticed her away from the plaintiff's and her then residence in , and has ever since detained and harbored her against the consent of the plaintiff, and in opposition to his utmost peaceable efforts to obtain her from the defendant's custody, control and influence.'" III. That by reason of the premises, the plaintiff has been and still is wrongfully deprived by the defendant of the comfort, society, aid and services ''' of his said wife, and her affection for him has been alienated and destroyed by de- fendant, and plaintiff has suffered great distress of body and mind, to his damage dollars. Wherefore [etc., demand of judgment]. 1279. For Enticing Away Plaintiff's Husband.^* [From Rubenstein v. Rubenstein, 60 App. Div. 238, 69 N. Y. Supp. 1067; Breiman v. Paasch, 7 Abb. New Cases (N. Y.), 249. I. That the plaintiff is now, and for more than years last past has been, the wife of one M. N. II. That in or about the month of , 19 , plaintiff was living, cohabiting with and being supported by her said "See, also, Forni No. 1280, for 43 N. Y. Supp. 79; O'Gorman v. criin. con. Such intercourse may Pfeiffer, 145 App. Div. 237, 130 be alleged in aggravation of the dam- N. Y. Supp. 77; Westlake v. West- ages inflicted. Weston v. Weston, lake, 34 Ohio St. 621, 21 Cyc. 1622, supra. and cases cited. '" As to the running of the Statute The wife's action is based upon of Limitations, see note to next form. the loss of consortium, or conjugal " The unjustifiable deprivation is society of her husband, and is not of the gist of the action. Cases, maintainable where the wife has supra. voluntarily left her husband and lives '* That this action will lie, see apart from him under a separation Bennett v. Bennett, 116 N. Y. 584; agreement entered into under sanc- Cochran v. Cochran, 196 N. Y. 86; tion of the court. Buckel v. Suss, Romaine v. Decker, 11 App. Div. 20, 28 Abb. N. C. (N. Y.) 27. Miscellaneous Injuries to Personal Rights 1409 husband at , and was living with him happily as his wedded wife, and as such was cherished and loved by him and was enjoying his affection, support, protection and consort;" that at said time, the defendant, well knowing the premises,-" and wrongfully intending ^^ to injure this plaintiff and deprive her of her said husband's protection, society, aid and support, [willfully, wickedly and maliciously gained the affections of said M. N., and induced him to have carnal intercourse with her, and sought to persuade him and entice him by offers of money and otherwise to leave plaintiff without support and go with the defendant to the city of III. That thereafter, and at various times between the time aforesaid and the day of , 19 , the defendant continued her unlawful and wrongful intercourse v/ith said M. N., and on or about said^ last-mentioned day induced and] ^^ willfully and maliciously ^' enticed said M. N. to desert plaintiff, and to leave her without means of support or protection, and to go with said defendant to the said city of , at which place the said defendant has ever since harbored and detained the said M. N. against the will of plaintiff, [and has wilfully and maliciously debauched him]. '' IV. That by reason of the premises, the said M. N. has become estranged from plaintiff, and his affections and re- gard for plaintiff have been destroyed; that thereby plaintiff has been, and still is, wrongfully deprived by the defendant '"That this allegation may be omitted unless in accordance with material, see Servis v. Servis, 172 the facts. N. Y. 438. " Malice has been held to be a, 20 Knowledge on the defendant's necessary allegation. Westlake o. part of the relations she was breaking Westlake, supra. up is essential. Loper v. Askin, 178 ■* For the purpose of the running App. Div. 163, 164 N. Y. Supp. 1036.